Ocean County Superior Court Assignment Judge Francis Hodgson is troubled with the way that Lakewood Zoning Board Chairman Abe Halberstam for years opened Board meetings.
Chairman Abe Halberstam always stated the following opening statement:
Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?"
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The New Jersey Open Public Meetings Act (10:4-10) stipulates:
At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect:
a. that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided...
A lawsuit filed earlier this year in New Jersey Superior Court in Ocean County asserted that the Board's May 1, 2023 public hearing should be null and void due to Chairman Halberstam's failure to recite the Statutory language required by the OPMA.
At oral arguments held on Friday, Judge Hodgson was very troubled with this violation.
As previously reported here on FAA News, back in June, 1650 Oak Street LLC, represented by Attorney Rob Shea Esq. filed a lawsuit alleging that all of the Zoning Board's meetings this year (including an initial hearing on Lake Terrace's Use Variance appeal) failed to comply with the New Jersey Open Public Meetings Act (OPMA) and therefore all actions taken at their meetings should be null and void.
This lawsuit is part of 1650 Oak Street LLC's ongoing litigation against Lake Terrace.
The first two counts alleged that the Board's Annual Notices from 2022 and 2023 failed to comply with the "adequate notice" as required by OPMA, and the Board is not permitted to meet to conduct official business until adequate notice has been provided to the public.
Accordingly, all decisions, determinations, testimony, submitted exhibits, and all actions taken during the January 9, February 6, and May 1, 2023 hearings are null and void.
Furthermore, the Board has no power to hear applications, and can hear no further testimony with respect to Lake Terrace's Use Variance appeal until such time as it complies with the Open Public Meetings Act.
The third count of the lawsuit alleges that the Board failed to recite the Statutory language required by the OPMA, as stated above.
As previously reported here on FAA News, Mr. Shea filed a motion to amend the complaint to include fourth and fifty counts that due to the Board's continued failure to reorganize properly, the Board's subsequent meetings were also held in violation of statutory requirements and all actions taken at the meeting must be voided.
As previously reported here on FAA News, back in July 2023, Zoning Board Attorney Jerry Dasti Esq. filed a Motion to Dismiss the lawsuit.
In a move that can only be considered "insane" even by Lakewood standards, Mr. Dasti failed to recuse himself from representing the Board in this litigation despite that it also involves his personal client.
Even more insane, Mr. Dasti submitted a brief in the matter and openly supported his personal client's positions.
In fact, even more shamelessly, Mr. Dasti even went so far as to mention his client and to put forth his client's position as if that is the Zoning Board's position!
As previously reported here on FAA News, Mr. Shea responded with a Cross-Motion for Summary Judgement in the matter.
The legal filing asserts that the Board has demonstrated its predisposition and bias against Plaintiff:
The Board's Motion to Dismiss, and accompanying factual background is equally as troubling and inaccurate as KBS's. First and foremost, the Board's paperwork and certification was filed by Dasti, who has a conflict of interest as applied to the KBS application since he represents Greenwald Caterers in the banquet hall litigation.
Secondly, it is nothing short of shocking that the Board itself makes the following statement in its brief:
This Prerogative Writs matter is another one of 1650 Oak Street LLC's attempts to shut down its neighbor, co-defendant KBS Mt. Prospect (Lake Terrace). Plaintiff has continuously used the Superior Court to challenge, over and over again, KBS's operations as a means to improve its value and avoid competition...
The above quote is truly disturbing for a litany of reasons. Firstly, Plaintiff has not filed any actions aside from this one to challenge the Board's operations. The only other litigation involving the Board was the Declatory Judgement action filed by the Board itself. Second, the Board, with neither certification, nor citation to any document whatsoever, accuses Plaintiff of seeking to shut down KBS purely to "improve its value and avoid competition." As the Court is aware, Plaintiff is not in the business of running a banquet hall, and as such, is not in competition with KBS. More to the point, however, is that the Board's view of Plaintiff, before Plaintiff has even presented any testimony, then it is readily apparent that Plaintiff cannot possibly hope to have any fair hearing before the Board.
Through the above quote and the rest of their brief, the Board has shown its bias and vitriol for Plaintiff, going so far as to falsely accuse them of interfering in their neighbor's business, presenting an unwarranted and frankly uninformed opinion of Plaintiff's other litigations with KBS, and actively making arguments in favor of KBS. Specifically, the Board sees fit to praise KBS's caterer, who is unsurprisingly one of Dasti's clients, by stating, "In fact, the record is clear that before beginning to occupy the property, the caterer obtained a commercial Certificate of Occupancy to utilize the property as a banquet hall." The Board has no cause and no right to make this determination, as the validity of this document, as well as when the occupation of the facility took place, is a point of challenge in the banquet hall litigation. Furthermore, the Board states that, "without admitting any wrongdoing, KBS made this application to 'clear up' any issues with its use of the property." This is not only false but is a shameless bolstering of KBS against the determination of the Board's own engineer, who concluded that this use was a non-permitted use in the M-1 zone. It is undisputed that KBS's use is not permitted and requires a use variance.
It is clear from their filing that the Board has cast aside any appearance of objectivity in the performance of its duties, as well as any pretense of respect for the rights of an interested party. It is further clear that Plaintiff can expect no fair treatment from the Board, as it has already judged Plaintiff as a nefarious entity who seeks to improperly demolish their neighbor's business. Moreover, the Board's inclusion of these mischaracterizations of Plaintiff are further troubling as they have nothing to do with the simple legal question that the parties are here to answer: whether or not the Board violated OPMA.
(As previously reported here on FAA News, this is by far not the first corruption risk caused by Mr. Dasti in this matter.)
In his motion to amend the complaint, Mr. Shea additionally highlighted, "all of the resolutions were prepared by Mr. Dasti despite that he has conflicted himself out of the Lake Terrace application as he is currently representing Greenwald Caterers in related litigation."
At oral arguments held on Friday, Judge Hodgson dismissed without prejudice the first and second counts of the original complaint, finding that, a) the allegations are untimely as it is well past the 45 day time limit for such complaints, and; b) there is no allegation that there is any underlying fraud to benefit Lake Terrace.
Judge Hodgson also dismissed without prejudice the motion to amend the complaint, saying that the new complaints regarding the subsequent Zoning Board meetings are really just built on the old reorganization meeting, and the complaints as to those meetings are untimely. Additionally, "these things are minor, unintended, and not designed to stop anyone from coming to the meeting and objecting to the applications."
However, the third count of the complaint disturbed Judge Hodgson, and he said that this issue can be brought back in subsequent actions.
As previously reported here on FAA News, the mere filing of this lawsuit was sufficient for Chairman Halberstam to immediately change his opening statement to comply with OPMA.
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