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 in court to overturn the Planning Board's denial.
Oh, and by the way, Election Day is just around the corner!
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.
Subsequently, 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 here 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.
However, Mr. Halpern continues to litigate the matter, seeking for the denial to be overturned.
Mr. Shea today submitted a supplemental brief which states:
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.
Judge Wellerson has scheduled a plenary hearing on the matter to be held next 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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