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FIRST REPORT - BREAKING NEWS: APPELLATE DIVISION AGAIN TOSSES APPROVAL FOR TOVIA ROSENBERG'S 5-STORY HOTEL & BANQUET HALL ON PINE & NEW HAMPSHIRE. SAYS BANQUET HALLS REQUIRE PUBLIC NOTICE.


A nearly 10 year long project to construct a 5-story Courtyard Marriott hotel on Pine Street and New Hampshire Avenue just went down the drain as the New Jersey Appellate Division just tossed the Lakewood Planning Board's second approval of the application.


The court tossed the Board's second approval for the very same reason it tossed the Board's first approval - the application's legal notice failed to mention the banquet hall, accordingly, the Board lacked jurisdiction to consider the application.


Specifically, the Appellate Division was not persuaded that the Township's 2019 "special favor" Ordinance which says "hotels typically include banquet halls" means that the developer does not need to publish notice of the hotel.




Back in 2014, RD Lakewood, LLC, which is owned by Tovia (Thomas) Rosenberg, filed an application with the Lakewood Township Planning Board for site plan approval to develop a 5-story, 22,500 square foot hotel, a 3,153 square foot bank and 153 parking spaces, on Pine Street and New Hampshire Avenue.


Before the public hearing, RD Lakewood published a public notice in the local newspaper and mailed it to all property owners within 200 feet of the site as required by MLUL. The public notice stated that RD Lakewood applied to the Board "to construct a hotel as well as a bank."


At the public hearing, architectural plans were shown that included a bar, restaurant, and banquet facilities. These proposed uses were not listed in the applicant's legal notice.


Lakewood Realty Associates (LRA), which owned the Hilton Garden Inn in Lakewood and the Ramada Inn in Toms River, represented by an attorney, raised several issues and presented its own expert witness to testify against RD Lakewood's development application.


Despite the objections, and despite the fact that the application required certain variances, the Board unanimously approved RD Lakewood's application and adopted a resolution on June 23, 2015.


In July 2015, LRA filed a lawsuit in Superior Court seeking reversal of the Board's approval. LRA argued, among other things, that RD Lakewood's public notice was deficient because the notice stated that the site was for a "hotel and a bank," and did not mention the proposed bar, restaurant, and banquet facilities.


The Superior Court upheld the Board's approval and dismissed the lawsuit, determining, among other things, that the notice stating a hotel was proposed was sufficient given that the architectural plans on file with the planning board clearly indicated the proposed hotel would also include a restaurant with a bar, banquet facilities and meeting rooms, which the judge noted "are common amenities in a hotel of this size associated with a national brand."


LRA continued on and appealed to the Appellate Division.


Ultimately, in 2019, the Appellate Division reversed the trial court's decision and tossed out the Planning Board's approval.


The Appellate Division held that RD Lakewood's public notice was materially deficient because it did not adequately describe "the material characteristics of the development's proposed uses."


In tossing the lower court's decision, the Appellate Division noted that despite RD's assertion that restaurants, a bar, banquet facilities and meeting rooms, "are common amenities in a hotel of this size associated with a national brand," the issue is that on the local level, Lakewood Township's ordinance includes a definition of a hotel and that definition only said that "motels typically do not include lobbies and hotels do typically include lobbies," without specifying that hotels typically include restaurants, a bar, banquet facilities and meeting rooms.


The simple way to move forward would have been for RD to submit a new application to the Planning Board with proper notice listing all of the proposed uses. However, this would have been problematic as then, objectors could have argued that each use requires its own parking - which RD saw no reason to provide.


Never ones to sit back after someone suffers a loss in court and does not want to submit a new application with sufficient parking, in November 2019 Lakewood's Township Committee came to the rescue by adopting an ordinance amending their definition of a hotel to expressly say that hotels "may include, but not be limited to, a lobby, full-service restaurant, cocktail lounges, meeting rooms, banquet facilities, and convention facilities..."


By amending this ordinance, the Committee attempted to fix RD's double problem, hoping that their new notice would not need to disclose all of these proposed uses, as they were now expressly part of a hotel, and parking did not need to be provided for each of these uses, as they would be considered accessory uses which the ordinance deemed permitted with no additional parking requirement.


Of note is that prior to voting on the ordinance, Committeeman Albert Ackerman asked for an explanation on the ordinance wording change. Township Attorneys Steven Secare and Harold Hensel vaguely responded that this change was simply "to clarify the use."


Committeeman Meir Lichtenstein, who manages properties for Tovia Rosenberg, did not bother to recuse himself from voting on this ordinance.


Subsequently, in August 2020, RD Lakewood sent legal notice to the neighbors notifying them about an "amended application for a hotel." The notice did not include the additional proposed uses inside the hotel, rather it stated that the amended application sought approval to "slightly reduce the footprint of the hotel and to remove the bank in lieu of additional parking spaces.⁣"


In addition to seeking “Amended” Preliminary and Final Site Plan Approval, RD Lakewood sought variances to permit a proposed parking drive aisle for the proposed hotel on Lot 2.02 to extend approximately 24 feet onto adjacent Lot 2.03 for a length of hundreds of feet. Because the parking drive aisle crosses the lot line between Lots 2.02 and 2.03, there is a zero-foot side yard parking setback where a minimum 20 foot side yard parking setback is required. A number of proposed parking spaces on Lot 2.02 also are within the required parking setback.


The Application also sought a variance to permit another parking lot access drive to be five feet from the lot line of adjoining Lot 2.06 where a 20-foot minimum parking setback is required.


The Application also required a variance with regard to sign area for an 84-square foot sign proposed along the Pine Street where a maximum sign area of 75 square feet is permitted.


RD Lakewood also sought design waivers with regard to curbing along the Pine Street frontage of Lot 2.03 and to permit a driveway width of 43 feet where a maximum driveway width of 30 feet is permitted.


Finally, the Application required a design waiver to allow elimination of required buffers along the side and rear property lines.


In September 2020 the Lakewood Planning Board approved the amended application for a 5-story hotel with 138 rooms, a pool and sauna, gym, 3 meeting rooms, a bistro and 6,700 sq feet dining area, and a total of 193 parking spaces on the 3.569 acre lot.


Importantly, the Board accepted Engineer Brian Flannery's testimony that the dining area would be limited to meetings and convention uses and that it would not be used for weddings.


Access will be provided through a new driveway on Pine Street. The driveway will have a single entrance lane with a 2 lane exit for right and left turn lanes. The driveway will be 43 feet wide.⁣


On November 30, 2020, represented by Newark Attorney Mark E. Duckstein, Esq. of Sills Cummis and Gross P.C., Lakewood Realty Associates, LLC filed yet another Complaint in Lieu of Prerogative Writs seeking to overturn the Planning Board's approval.


The Complaint alleged that the witnesses presented by RD Lakewood failed to provide testimony to establish the requisite proofs necessary for the grant of the requested variances and failed to establish any hardship to justify the requested relief, other than a self-created hardship, or to demonstrate that the grant of the variances would further the purposes of zoning, or that the benefit from the grant of the variances would outweigh any resulting detriment.


Additionally, the testimony submitted on behalf of RD Lakewood failed to establish that the Application as a whole, and the variances sought or required, including proposing to locate the hotel parking lot drive aisle on an adjourning lot would not cause substantial detriment to the public good and failed to establish that the grant of the variances would not result in any substantial impairment of the zone plan or zoning ordinance.


The Complaint further alleged that the Board's Resolution of Approval fails to make adequate findings of fact or to set forth conclusions of law as Statutorily required, and that the findings of the Board were inadequate to support the grant of the relief sought and merely recited of the statutory language or conclusory statements which failed to provide any factual support for approvals granted.


Additionally, the Complaint challenged the notice of the "amended application," arguing that at the time of publication of the notice the Appellate Division had issued its decision vacating the Board's earlier approval and therefore that approval was void. The notice published by RD Lakewood references the previous approval without advising the public that that approval had been vacated and was of no effect and states that the pending application “reduces the footprint of the proposed hotel and has removed the bank.”


The notice published by RD Lakewood is misleading to the public as it indicates that the pending application is an amended application to a previous approval without advising that there is, in fact, no viable previously approved hotel approval to be amended.


The notice as published and served would lead the public to believe that there is a viable approval for a hotel at the subject property and that the pending application merely seeks to reduce the footprint of the approved hotel and eliminate a previously approved bank.


The notice published and served on behalf of RD Lakewood was misleading, defective and in violation of N.J.S.A. 40:55D-11 and as a result the Planning Board was without jurisdiction to hear or act upon the application.


The Complaint also challenges the fact that the legal notice did not mention the proposed banquet hall.


The notice served and published by RD Lakewood enumerates a number of the components of the proposed hotel including some of those set forth in the Ordinance, as amended, including meeting rooms, food preparation areas/kitchen, lounge, bar area, dining area, pool and exercise room, but fails to identify the proposed banquet facilities notwithstanding that a 6,700-square foot banquet facility is included within the Application for the proposed hotel. 


The proposed banquet facility available for functions which is the use that has the potential to be the most intense of all of the proposed uses comprising the hotel facility from a traffic and parking perspective, perhaps even more intense than the hotel use itself should definitely have been included in the notice.


The Complaint challenges the issuance of the variances.


Among the relief sought by RD Lakewood was a variance to permit a proposed parking lot access drive aisle serving the proposed hotel to extend approximately 24 feet onto adjacent Lot 2.03 for a length of hundreds of feet, resulting in a zero-foot parking setback on Lot 2.02, where 20 feet is the minimum required side yard parking setback. RD Lakewood failed to provide adequate proofs to justify the grant of the variance to allow the drive aisle to be located on a separate, adjacent lot and to fail to provide the requisite 20-foot parking setback as required by the Ordinance.


The proofs in support of the variance characterized the relief as de minimus and only restated the statutory standards without providing any justification for the grant of the variance with regard to Lot 2.02.


Because the parking lot drive aisle is proposed to cross the property line between Lots 2.02 and 2.03, a variance was required for the violation of the parking setback on each of the lots, but a variance was only sought with regard to the violation of the parking setback on Lot 2.02, the lot proposed to be developed with the hotel.


Lot 2.03 is currently improved with a regional stormwater retention basin and the location of the access drive serving the proposed hotel development on Lot 2.02 also required a variance for the violation of the required 20-foot parking setback on Lot 2.03.


The notice served and published by RD Lakewood failed to identify the need for a second variance of the Ordinance with regard to the parking lot set back violation on Lot 2.03. The notice was therefore deficient, causing the Board to lack jurisdiction to hear the application.


The Complaint further challenged the use of parking as a permitted accessory use on the drainage basin lot.


The Ordinance lists parking as an accessory use in the DA-1 Zone.


Pursuant to Section 18-300B. of the Ordinance, accessory use, structure or building is defined as:


A use, structure or building that is customarily incidental and subordinate to that of the principal and on the same lot. No access use shall form the basis for a claim of right to the principal or main use.


The principal use on Lot 2.03 is a regional retention basin. The parking drive aisle, by its design, is part of the parking lot and aisles, an accessory use or structure to the proposed hotel on adjoining Lot 2.02 and therefore is not accessory to the retention basin on Lot 2.03. The parking drive aisle, proposed to be located substantially on Lot 2.03 is a second principal use on Lot 2.03. A parking drive aisle, part of a parking lot, is not a permitted principal use in the DA-1 Cedar Bridge Redevelopment Zone. RD Lakewood did not seek a use variance to permit the drive aisle as a second principal use on Lot 2.03 and the Board was without jurisdiction to grant a Use Variance (which only the Zoning Board can grant).


Finally, the Complaint asserted that RD Lakewood failed to seek a required variance from Ordinance section 18-903.9.b. with regard to Lot 2.03 and submitted no proofs in support of that required variance, and failed to provide adequate proofs in support of the variances it did request with regard to the parking setbacks and size of the sign or in support of the requested design waivers. Therefore, the Board’s grant of site plan approval and variance relief sought by RD Lakewood in the absence of adequate proofs to satisfy the statutory criteria was improper, ultra vires the Board’s delegated authority, and was arbitrary, capricious and unreasonable.


In trial briefs submitted on August 5, 2021, Lakewood Realty Associates argued that Mr. Flannery cited to purposes “a” and “g” of the MLUL, and the contents of the Lakewood Township Master Plan in support of the requested variances by reference – without elaborating on how either the purposes of the MLUL or the relevant sections Master Plan were furthered, or how they specifically related to any of the requested variances. Mr. Flannery offered no testimony to explain why reducing the size of the hotel would not have accomplished the same goals.


Additionally, the Plaintiff presented Gordon Gemma, a licensed professional planner. Mr. Gemma opined that the Applicant failed to provide proofs that the requested relief advanced the purposes of zoning, or that the requested relief was consistent with the Master Plan. He pointed out that, pursuant to the Master Plan, the Township’s land use strategy is to “strictly enforce all yard standards of [the Ordinance] to prevent over building of the individual sites.” Mr. Gemma testified that the parking lot drive aisle would not need to cross onto Lot 2.03 if the Applicant proposed a smaller hotel that required less parking, and that the setback variances did not advance the purposes of zoning. He further testified that proposing a sign that is 13 percent larger than permitted by the Ordinance did not advance the purposes of zoning, and that a desire to comply with a commercial standard does not advance the purposes of zoning. Regarding the exceptions (waivers) from the site plan requirements of the Ordinance, Mr. Gemma stated that Mr. Flannery’s testimony to the effect that the Ordinance requirement of a buffer between the two parking areas is unnecessary does not constitute “reasonable justification” to justify granting the requested exception.


The brief also contends that the Board's Resolution fails to mention the public comments.


Mr. Shlomo Stein of Hearthstone Drive e-mailed comments to the Board, which the Board permitted because the meeting was conducted virtually. Mr. Stein urged the Board to condition any approval upon a requirement that any changes to the floor plan would require the Applicant to return to the Board for relief. In response, Mr. Flannery asserted that the proposed floor plans had not changed previously from what had been submitted, and the Applicant did not commit to condition the approval on maintaining the floor plans as proposed (such that any modifications would require Board approval).


The Board's Resolution incorrectly stated that with the exception of “the objector represented by Ronald Gasiorowski, Esquire, no other comments were received from the public.” To the contrary, Mr. Stein submitted comments by e-mail, urging the Board to condition any approval on maintaining the floor plans as proposed and only permitting modifications to the floor plans by application to the Board. The Resolution made no mention of Mr. Stein’s comments nor was the recommended condition included in the Resolution.


Finally, the Board concluded that the Application met the statutory criteria for the grant of all variance relief. The Resolution contains no findings with regard to the requested exceptions (waivers) from the site plan ordinance that strict enforcement of the Ordinance requirements would result in a hardship to the Applicant or that such enforcement was impracticable as required pursuant to N.J.S.A. 40:55D-51b.


Judge Marlene Ford held a trial on the Complaint in December 2021, and released a written decision dismissing the entire Complaint.


Notably, Judge Ford conceded that the legal notice did not mention a banquet hall, however, being that the Planning Board accepted Engineer Brian Flannery's testimony that the dining area would be limited to meetings and convention uses and that it would not be used for weddings, "the Court finds no merit to these arguments."


Judge Ford also dismissed the challenge to calling this an "amended application," noting that this was an amended application as far as the Board was concerned, and either way, this wording did not cause any confusion to the public.


Finally, in reviewing all the testimony provided at the public hearing, Judge Ford found that the Board granted all the necessary variances and that the approval was not arbitrary, capricious or unreasonable.


Lakewood Realty Associates appealed this second ruling. After over a year and half of waiting for a hearing, the Appellate Division held oral arguments just recently on Monday, September 18, 2023. 


After hearing oral arguments just a few weeks ago, Appellate Division Judges Sabatino, Mawla and Chase today issued a written ruling reversing the Board's 2020 approval, finding that "the developer's public notice of its second land use application was materially defective because it failed to disclose that the hotel would contain a banquet facility with the capacity to accommodate up to 833 people."


The public notice need not be "exhaustive." Shakoor Supermarkets, Inc. v. Old Bridge Twp. Plan. Bd. However, it must be sufficient to enable members of the public to make "an informed determination" about whether to attend and participate in the applicant's land use hearing. Perlmart v. Lacey Township.


Our first opinion in this case held that the elements of a restaurant and a banquet facility were sufficiently important to be required within RD Lakewood's public notice. Our determination in that regard remains unchanged. RD Lakewood persuaded the Planning Board and the trial court that the banquet facility did not have to be mentioned in the notice because, in the interim between the 2014 hearing on the first application and the 2020 hearings on the second application, the Township's ordinance was revised in 2019 to redefine "hotel" to include "banquet facilities." The trial court reasoned this definitional change no longer required RD Lakewood to obtain a use variance to enable the planned hotel to include a banquet facility.


However, that change does not eliminate the applicant's statutory obligation -- in connection with the land use application as a whole -- to convey to the public the impactful activities that will be authorized on the site.


The testimony at the hearings elicited that the banquet facility, which would be located in the hotel's basement, could hold up to 833 guests. That number of allowable attendees would far exceed the number of diners a member of the public would reasonably expect to use a "restaurant" within a hotel with 138 guest rooms and 193 parking spaces. Counsel at oral argument on the appeal suggested that the 833-guest figure was inaccurately calculated, and that far fewer banquet guests would be expected to use the facility. That assertion overlooks the point that a banquet facility is designed to draw substantial numbers of guests who would be traveling to and from the facility for banquet events and who would not necessarily be staying in a room at the hotel.


We recognize the Planning Board's resolution disallows the hotel to be used as a "wedding hall." But that does not prevent other very large gatherings from being held at the banquet facility, such as fund-raising dinners, political events, galas, retirement dinners and anniversary parties, and so on. The banquet facility was a material aspect of the application that needed to be mentioned in the notice, regardless of the change in the ordinance's definition of a hotel.


It is also concerning that the notice enumerates seven other activities that are specifically permitted for a "hotel," but conspicuously omits mention of a banquet facility. At oral argument on appeal, counsel for RD Lakewood candidly acknowledged the omission was not inadvertent. RD Lakewood presents no justification for why the public specified the hotel would have meeting rooms, a food prep area/kitchen, lounge, bar area, dining area, pool, and exercise room, but did not mention a banquet facility. Surely a banquet facility would have a far greater potential impact on site parking and traffic than, say, an exercise room. The exclusion of the banquet facility made the notice materially defective. 


Hence, consistent with the requirements of the MLUL and case law, we must reverse the trial court and vacate the approvals once again because of that jurisdictional deficiency.


-----

Lakewood Realty Associates, LLC was represented in this second appeal by Attorneys Meryl A. G. Gonchar and Mark E. Duckstein Esq. of Sills Cummis & Gross, PC.

RD Lakewood, LLC was represented by Attorney Adam Pfeffer Esq. of Levin Shea Pfeffer & Goldman, P.A.

Lakewood Township Planning Board was represented by Attorney Kelsey McGuckin Anthony Esq. of Dasti, Murphy, McGuckin, Ulaky, Koutsouris & Connors.


Since the 2020 approval, (which is now vacated), the Township Committee has adopted a new Ordinance requiring 1 parking space per 1 person of the capacity of the banquet hall in the Cedarbridge Corporate Campus. This means that if the hotel project does seek a new Site Plan approval from the Planning Board, they will need to provide adequate parking for the banquet hall, which their previous application did not include.


The Township Committee likely enacted that new Ordinance only after this hotel got its 2020 approval simply to ensure that there is no competition hotel and banquet hall built in this area.


However, now that the new Ordinance will also require this hotel to provide adequate parking, it will certainly be interesting to see how the Committee deals with this new headache!


Of additional interest is that the Appellate Division was not persuaded by Brian Flannery's testimony that the banquet hall will not be used for weddings. This opens the door to two big things: 1) Yeshiva Toras Chaim's pending appeal includes an argument that the Board simply relied on Brian's expert testimony and therefore whatever he says should be the final word of the law. Based on today's ruling we see that the Appellate Division can ignore such an argument. 2) Going forward, the Planning Board will have the ability to push back harder on applications that contain rooms - even when Brian says it will not be a wedding hall - if they can potentially be used for "other very large gatherings... such as fund-raising dinners, political events, galas, retirement dinners and anniversary parties, and so on."


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