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The Lakewood Board of Fire Commissioners, counseled by Attorney Ian Goldman, is doing all they can to assist developers continue to overdevelop the Township. 

So much so, that even after the Planning Board denied an application for safety concerns, the Board of Fire Commissioners is helping the developer by granting their own approval on the application.

The developer is now using this fire approval to fight the Planning Board in court.

In addition to the Planning Board sending their attorney to court, the neighbors have retained their own attorney to help defend the Board.

The neighbors have just now submitted their arguments in the matter.

As first reported here on FAA News, back in June 2022, the Lakewood Township's Planning Board very uncharacteristically denied a "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane.

The application which was filed by Solomon Halpern of Besadar Holdings, was represented by Attorney Robert C. Shea, Esq. and Engineer Brian Flannery.

Many neighbors, represented by Attorney Ron Gasiorowski Esq. and Engineer Gordon Gemma, opposed the application citing traffic safety concerns. They also spoke highly of their "unique neighborhood" which by and large does not have basement apartments. They also noted that there is no stopping or standing along their narrow section of Fourteenth Street, so if there is insufficient internal space for all the cars to be parked, there will be no other place for them to park.

When the Board questioned the applicant whether or not he proposed to build basements, he responded "perhaps yes, perhaps no." The applicant's professionals flat out denied a compromised proposed by the Board to approve the application with an stipulation of a deed restriction prohibiting basement apartments.

The application sought a design waiver from providing non-radial lot lines and from proposing street trees along the entire Fourteenth Street frontage. The Board Engineer recommended that the Board should grant these design waivers.

However, this application got very special treatment from the Planning Board, which typically approves new developments easily, especially if they are technically fully conforming.

The Board cited concerns that there would be insufficient parking both off and on-street due to the "possibility" that there would be basements.

Board Chairman Moshe Neiman explained that his hesitations with this application were due to the "uniqueness" and "specific clientele" of the Fourteenth Street neighborhood.

The applicant's attorney reminded the Board that they are not legally permitted to deny an application solely due to off-site traffic conditions.

In response, a board member stated that "we can consider the safety of the neighborhood."

Finally, the Board voted nearly unanimously to deny the application. Only Chairman Neiman and Mr. Yair Stern abstained from voting.

As previously reported here on FAA News, back in August 2022, the developer returned to the Board seeking reconsideration.

Despite renewed pushback from the developer, the Board again uncharacteristically advocated strongly on behalf of this "unique" neighborhood.

Chairman Neiman uncharacteristically sided strongly with the neighbors, and he put his sentiments "on the record."

"Yes, the application is conforming, and therefore, in a court of law a judge might side with you, however, this board needs to take into account the exclusivity of this neighborhood," Chairman Neiman stated.

"We can't deny this application solely due to traffic, and if we could do that, we would deny every application because there is traffic everywhere in Lakewood. However, this is a very exclusive neighborhood, with neighbors who have lived here a long time and there are no basements in this area, therefore, this application would change the look of this whole neighborhood and that's why the neighbors fought so strongly against this application," Chairman Neiman added.

Chairman Neiman also exhorted the applicant, stating "even if the vote to reconsider is approved, I will not approve the final application unless the parties do sit down and become much closer together than they are now."

Curiously, while the rest of the Board then voted to deny the request to reconsider the application, Chairman Neiman was the single vote in support of the request.

As first reported here on FAA News, represented by Attorney Shea, the developer filed a lawsuit seeking to overturn the Board's denial.

In his Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, the developer is seeking to overturn the Board's denial, asserting that "though there was one single design waiver, the application was "effectively as of right."

The lawsuit continues to charge that although the Board may have had the right to deny this single waiver, that was not the Board's basis for denying the application, noting "neither of the conclusions of the Resolution are representative of the testimony provided at the hearing. At no time did the Board question any expert regarding safety concerns. In fact, the Resolution itself is devoid of any findings of fact on the record which speak to health and safety concerns upon which the Board could have drawn its conclusion."

As such, the Board's decision to deny the application for health and safety was "arbitrary, unreasonable, and capricious," the lawsuit asserts, seeking for a Court Order overturning the denial as well as to recover legal fees and costs of filing the lawsuit.

As previously reported here on FAA News, at a trial held back in July 2023, Ocean County Superior Court Judge Craig Wellerson denied Besadar Holdings' petition to outright overturn the Lakewood Planning Board's denial of his application. However, Judge Wellerson ruled that the Board's Resolution of Denial does not comply with Statutory regulations and therefore, the Board needs to write a new Resolution that more clearly explains the Board's legal basis for denying the application.

Judge Wellerson remanded the matter back to the Board to better articulate why they feel that an approval of the application "would have significant detrimental effects on the safety of the neighborhood."

Planning Board Attorney John Jackson Esq. confidently assured Judge Wellerson that there was sufficient reasons on the record for the Board to deny the application, and the Board would be able to sufficiently revise their resolution.

Subsequently, the Board did adopt a new Resolution of Denial.

As previously reported here on FAA News, Mr. Shea recently submitted the following supplemental brief seeking for the Board's denial to be overturned.

The new resolution states, "9 homes are too many for this application."

Firstly, this is simply not an accurate representation of the record. While one Board member did ask if the applicant would consider lowering the number of houses, the Board made no finding whatsoever that 9 was too many. In fact, the application is for a conforming subdivision.

The new resolution further states, "the applicant could not satisfy the negative criteria."

The application sought two design waivers, both of which the Board Engineer recommended that the Board approve.

The Board's own professionals had no concerns regarding the design waivers' effects on drainage and any supposed hazards created by it. As a result, it defies all logic that either design waiver could have been the reason for a denial, even though they constituted the only relief sought. 

The Board claims that Plaintiff did not satisfy the negative criteria for the grant of these minor design waivers, and yet their professional staff was in favor of them. It is nothing short of ludicrous for the Board to argue, as they do, that slightly less street trees, and non-radial lot lines which were recommended by their engineer will somehow "have significant detrimental effects on the safety of the neighborhood and would also substantially impair the intent and purpose of the municipal zoning plan and ordinance." The application complies with the very Zoning Board posits will be impaired.

On the whole, the new resolution only serves to further illustrate the arbitrary and invalid reasons for the Board's denial of the application. The Board again cites to general provisions of the MLUL governing the purposes of zoning, and again rests their denial on a vague concern about safety and the well-being of the neighborhood without any form of citation to a governing ordinance that Plaintiff failed to comply with.

Neither the Board's own professionals, nor any outside agencies have raised an issue regarding any health and safety concerns. The traffic report was never disputed by any expert testimony.

Plaintiff has received approvals from the Lakewood Fire Department and the Ocean County Utilities Authority, neither of which have raised any safety concerns. Furthermore, Plaintiff has received endorsement of the project from the Ocean County Engineering Department, with no safety concerns being raised.

The notion that the proposed subdivision will bring about harm to the public's well-being is an invented concern the Board is using to leverage a denial of this application, is not shared by any other agency, is unsupported by anything else in the record, and has no legal backing whatsoever.

The Board cannot change the zoning ordinance to affect off-site traffic, nor can it deny a conforming subdivision such as this one. Two design waivers were requested, neither is the basis for the Board's determination.

Mr. Liston, representing the neighbors, has now filed the following supplemental brief:

This is not a by-right application. Besadar Holdings' application sought two design waivers.

The Township's ordinance (18-601) provides the following standard for waivers.

"...if the applicant can clearly demonstrate that, because peculiar conditions pertaining to the subject parcel, the literal enforcement of this section is impracticable or will exact undue hardship, the Planning Board may permit such exemption(s) and waiver(s) as may be reasonable..."

The Planning Board was bound by this ordinance in considering the waivers.

The Board was certainly justified in declining to grant waivers under the Township's standard as the applicant never explained the "undue hardship" justifying either waiver.

The applicant's silence is understandable, since any hardship is the applicant's self creation. The applicant could comply with the tree requirement, but it chose instead to locate a drainage system where the trees are supposed to be. Additionally, there would be no deviation from the radial-lot-line requirement, but for the applicant's insistence on cramming nine lots along the proposed roadway. The Planning Board cannot create a waiver record for this applicant as that burden falls upon the applicant.

In deciding whether to grant the waiver and the subdivision as a whole, the application had to be reviewed to determine the acceptability of the detailed design concept and shall be in sufficient detail to enable the Board to ascertain compliance with the performance standards pursuant to the Township's ordinance (18-602):


Preserve existing natural resources and give proper consideration to the physical constraints of the land.


Provide for safe and efficient vehicular and pedestrian circulation.


Provide for screening, landscaping, signing and lighting.


Ensure efficient, safe and aesthetic land development.


Provide for compliance with appropriate design standards to ensure adequate light and air, proper building arrangements, and minimum adverse effect on surrounding property.


Develop proper safeguards to minimize the impact on the environment including but not limited to soil erosion and sedimentation and air and water pollution.


Ensure the provision of adequate water supply, drainage and storm water management, sanitary facilities, and other utilities and services.


Provide for recreation, open space and public use areas.

Plaintiffs cite the zoning ordinances. The application also had to comply with the subdivision ordinances. There were two waivers, and the issue on appeal is whether the Board arbitrarily or capriciously denied the waivers. As noted above, the standard for a waiver in Lakewood is undue hardship. Yet, the word "hardship" does not appear even once in Plaintiffs briefs.

The Resolution states, "the Board found that 9 homes are too many for this application."

Plaintiff argues while one single board member did ask if the applicant would consider lowering the number of houses, the Board as a whole did not make any finding whatsoever that 9 was too many.

This is inaccurate. "Individual members do not act. The Board acts as a body. The Resolution provides the body's findings and conclusions, expressed by those who vote to adopt the resolution." Scully-Bozarth Post #1817 of V.F.W. v. Planning Board of Burlington. Accordingly, the Board, as a body, found that 9 single-family lots of too many to exist on the proposed road.

There is abundant record support for the finding, not least of which is the potential for basement apartments that could double the number of dwelling units. The Board was also concerned about the drainage, and the proposed drainage system requires a waiver from the tree requirement. The Board would have been remiss in ignoring what amounts to double the potential traffic and drainage impact.

The Plaintiff extols the fact that the Board Engineer recommended the waivers. However, the fact remains that the Township ordinance permits waivers where, "because peculiar conditions pertaining to the subject parcel, the literal enforcement of this section is impracticable or will exact undue hardship." Whether or not non-radial lot lines result in 'minimum area and width while keeping storm water management facilities,' that is the applicant's design choice, not an undue hardship resulting from peculiar land conditions. Likewise, the fact that "the engineer made no objection to the waiver regarding street trees" is immaterial because it would not establish hardship.

I.e. It defies all logic that the applicant would present no undue hardship evidence, then complain that the Board withheld relief. The Board did not "search for any excuse," but rather, searched in vain for hardship on this record. To repeat, the lack of street trees and the irregular lot lines were the applicant's self-created conditions intended to squeeze as many as 18 families into this tract.

Finally, no one needed to dispute the traffic report with expert testimony because Mr. Rea's claims were incompetent net opinions, which were premised on a nine-family development whereas the proposal would result in as many as eighteen families. Reliance on "local research" is unavailing since the research is not disclosed.

"A Planning Board should consider off-site traffic flow and safety in reviewing proposals for vehicular ingress to, and egress from, a site. Concerns as to ingress and egress and concerns as to on-site conditions related to off-site traffic flow and safety are appropriate to be addressed at the site plan stage." Alloco and Luccarelli v. Twp. of Holmdel.

Among the Board's concerns was that "there is no parking on 14th Street, which will require that everyone park on the proposed street." Additionally, the Board found that "a reduction in the number of units would offer more off-street parking and resolve some of the Board's concerns regarding parking safety." Moreover, the Board stated that "the proposed development would not encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging locations of such facilities and routes which result in congestion or blight."

In conclusion, the Board had ample grounds for questioning whether the proposed road could accommodate as many as 18 families and their guests, and Amazon trucks, emergency vehicles, etc. The Board also had every reason and right to be concerned about access to and from 14th Street - the only way in or out of the development.

For the first time in this litigation, Mr. Liston is also alleging that the Board lacked jurisdiction to hear the application because the legal notice was faulty as it only mentioned nine homes and not the additional basement apartments.

"In this case, the applicant provided only a notice of a nine single family lot subdivision and made no reference in its notice to the fact that the actual number of dwelling units on each lot could and likely would be two, not one... While the Board correctly denied the application when the applicant failed to address the impact of an 18 family dwelling development, the Board failed to require the applicant to publish a new notice alerting the public to the potential number of units at issue. A reasonable person who might not mind nine units on three acres abutting a narrow portion of Fourteenth Street might mind very much if they realized that there could potentially be eighteen units.

"The failure of the legal notice which was prepared by the applicant to clearly state the actual density of dwelling units in the subdivision as eighteen renders the notice legally deficient under the MLUL.

"Although the Board did not have jurisdiction to act on the application based on the deficient notice, this failure to give proper notice does not negate the Board's denial on the merits and this applicant should not be permitted to benefit in this way from its own failure," Mr. Liston concluded.

Judge Wellerson has scheduled a plenary hearing on the matter to be held this Thursday, November 2, 2023.

Mr. Shea's latest arguments highlight a number of issues:

• Lakewood's land use boards would benefit from retaining their own professional traffic expert as that would better protect the boards from litigation such as this one.

• The Lakewood Board of Fire Commissioners claims that the fire district's review of site plan applications is "a more pragmatic approach couched in terms of recommendations." This new trial brief highlights the inaccuracy here, very similar to Adam Pfeffer's successful argument before Judge Hodgson that "as the fire district approved the application, the Planning Board has no authority to deny the application due to fire safety concerns."

This new trial brief highlights the importance of the fire district's review. It absolutely boggles the mind why the Lakewood Board of Fire Commissioners continues to sit cozy and claim, "our review is couched in terms of recommendations."

• Finally, this entire litigation highlights that our zoning ordinances need a real fixing.

The great news is that all of these issues can get fixed at the ballot box on Tuesday, November 7.

Vote R' Hershel Herskowitz for Township Committee, and Aaron Hirsch for Fire Commissioner - the transparency ticket.

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