It appears that the Lakewood Township Planning Board is in a really great spot right now to exercise their legal right to seek dismissal of a developer's lawsuit as the developer has failed to timely file his trial briefs as previously ordered by the Court!
The only question is, will they??
The matter involves Yanky Lipshitz's lawsuit which seeks to overturn the Board's denial of his Chestnut Street application.
Lakewood Planning Board Attorney John Jackson's recklessness (i.e collusion) resulted in the filing of this lawsuit. The very least that the Board can do now is grab the chance to seek dismissal of the lawsuit!
As first reported here on FAA News, back in May 2023, in response to heavy opposition from the neighbors, the Planning Board denied Application SD 2553 to construct 13 duplex structures (26 houses plus basement apartments) on a new cul-de-sac bulb off of Chestnut Street, across from Evergreen Avenue.
The application was submitted by Chestnut Holdings which is owned by Jacob Lipshitz and Hersh Eissenberg.
As more clearly explained here on FAA News, although the applicant's professionals asserted that the application did not require any variances, the Planning Board reinterpreted the Township's Open Space Ordinance to count basement apartments as a separate unit. Based on this new interpretation, the Board found that the Chestnut Holdings application did not comply with this Ordinance. The Board declined to grant a design waiver to provide relief from providing the required Open Space, and thus denied the application.
Subsequently, on June 20, 2023, the Board adopted the Resolution of Denial which was drafted by the Board Attorney.
The Resolution was written extremely sloppy (i.e. reckless/collusive).
First, the Resolution appears to indicate that under their new interpretation of the Open Space Ordinance, the application does not comply with the Ordinance:
The Board asked about whether the Open Space Ordinance defines unit and expressed concern regarding the lack of space for a playground or recreational space for the units. Mr. Flannery stated that the ordinance has been interpreted to mean, for example, 28 lots is 28 units, irrespective of basement units, since 1979. The Board said that if there are different families that are going to reside in the basement units, then 56 units must be considered when applying this Ordinance. The board confirmed their interpretation that a basement apartment, by definition, is a separate unit.
Then the Resolution does a 180° and contends that the application is conforming!
The Resolution states:
While the application represented a conforming subdivision, it is the duty of the planning board to weigh the evidence and to exercise its discretion in the event of significant concerns on the board of the board. The Board ultimately rejected the application on the basis of significant public safety concerns regarding traffic flow and the lack community facilities or recreational space, with the substantial proposed density particularly in light of the basement apartments noted on the plans. The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood.
The Board finds that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2:
1. The applicant’s proposal is not the best planning alternative.
2. The proposed development would not secure safety from fire, flood, panic and other natural and man-made disasters.
Accordingly, the Board hereby denies the applicant’s request for major preliminary and final subdivision approval.
The massive issue with this wording is that it throws away what the Board accomplished by reinterpreting the Open Space Ordinance - which was that the application was able to found to be non-conforming!
This created a massive lawsuit risk, as it's extremely easy to file a lawsuit against the Board when they deny a "fully conforming" application.
In fact, as previously reported here on FAA News, a mere 7 days after the Board adopted their Resolution of Denial, the developers, represented by Attorney Adam Pfeffer Esq., filed a lawsuit seeking to overturn the Board's denial.
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, argues that the application was properly noticed and published in compliance with the MLUL, and that it complied in all respects with the land use ordinances of the Township of Lakewood, and did not require, nor did it seek any variances therefrom, therefore, the Board's decision to deny the application was "against the weight of the testimony presented at the hearings and is therefore arbitrary, capricious, and unreasonable."
"During the course of the public hearings, the plaintiff introduced testimony from its engineer/planner who testified that the proposed duplex structures are a permissible use of the Premises within in HD-7 Highway Development Zoning District, and that no variances were required, and none were sought.
"Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning Board adopted a resolution of denial on June 20, 2023.
"The resolution of denial of the Planning Board is arbitrary, unreasonable and capricious in that the plaintiff complied in all respects with the zoning requirements set forth in the HD-7 Highway Development Zoning District, and otherwise meet all conditions of the Lakewood Township zoning land use ordinances.
"Accordingly, the Planning Board did not have the authority to deny Plaintiff’s application for Preliminary and Final Major Subdivision Approval pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board and its progeny," the Complaint argues.
The suit further contends that the Resolution of Denial contains insufficient conclusions of law and findings of fact not based on those presented at the hearing, which is a violation of N.J.S.A. 40:55D-10(g).
N.J.S.A. 40:55-10(g) requires that the Board make “findings of fact and conclusions based thereon.” Subsection 2 requires same be set forth in a memorializing resolution.
"Neither of these conclusions 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 facts on the record which speak to health and safety concerns upon which the Board could have drawn its conclusion.
"As such, the Resolution is both deficient and contradictory to the testimony set forth on the record and in violation of N.J.S.A. 40:55D-10(g)," the Complaint alleges.
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, seeks judgment declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law, and compelling the Planning Board to adopt a positive Resolution of Approval to approve the Plaintiff’s Application for Preliminary and Final Major Subdivision Approval.
The Complaint further seeks judgement awarding plaintiff attorneys’ fees and costs of suit, as well as for such other and further relief as may be just.
Mr. Pfeffer wrote to the Court that his client is seeking his legal fees, which, to date alone have totaled $10,489.75.
At a pretrial status conference held on August 28, 2023, Ocean County Superior Court Assignment Judge Francis Hodgson set the trial date for December 7, 2023. Additionally, Judge Hodgson ordered that the Plaintiff file trial briefs by October 2, 2023, that the Defendant file trial briefs by November 6, 2023, and that the Plaintiff file a reply brief by November 20, 2023.
It is now 4 weeks since the Court-ordered deadline for submission of the Plaintiff's trial briefs, and no briefs have yet been filed. Moreover, the Plaintiff's attorney has not requested any adjournment from the court.
The New Jersey Court rules (1:2-4) provide that for failure to comply with the requirements for filing briefs and for failure to submit a required brief, the court may dismiss the complaint.
At this time, as the Plaintiff has not filed any briefs nor sought an adjournment, it appears that the Planning Board is well within their legal rights to file a Motion for Dismissal of the entire lawsuit. That would ensure that their denial of the contentious application stays intact - something not likely to happen if the developer is permitted to take his case to trial.
All eyes are on the Planning Board now. Time will tell if they will stick up for the taxpayers and their rights.
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