YANKY LIPSHITZ IS TRYING TO REWRITE HISTORY. WILL LAKEWOOD'S PLANNING BOARD TURN A BLIND EYE?

Yanky Lipshitz, represented by Attorney Adam Pfeffer Esq., is trying to rewrite history. He is apparently hoping that Judge Hodgson win not catch on.

The big question is if Lakewood Township Planning Board will turn a blind eye, or put a stop to the shenanigans.

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 states.

The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County requests 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.

Mr. Pfeffer has now finally submitted his trial briefs. The briefs argue heavily that "the Board found that Plaintiff complied in all respects with the land use ordinances of Lakewood, and did not require, nor did it seek any variances therefrom and ultimately the design was RSIS Compliant. Despite Plaintiff submitting an “As-Right” application, the Planning Board adopted a resolution of denial.

Pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, and its progeny, the Planning Board did not have the authority to deny Plaintiff’s application for Preliminary and Final Major Subdivision Approval.

In PRB Enterprises v. South Brunswick Planning Board, the Court considered the validity of a zoning ordinance that purported to authorize a planning board to deny site plan approval for an otherwise permitted use based on the volume of traffic the use would likely generate. Justice Stein writing for a unanimous Court held: The role of the planning board, with respect to permitted commercial or industrial uses, is the grant of denial of a site plan approval. Although site plan review affords a planning board wide discretion to insure compliance with the objectives and requirements of the site plan ordinance, it was never intended to include the legislative or quasi-legislative power to prohibit a permitted use.”

Pursuant to PRB, a planning board does not have the power to deny an otherwise permitted use solely based on volume of traffic.

Despite this caselaw, the board did exactly that in the case at hand. Here, it is clear the Board is basing such a decision on traffic flow and lack of community facility or recreations space, despite the application being fully conforming with the Township Ordinance.

Mr. Pfeffer then cited the minutes from the Planning Board's public hearing - but only up to the point where the Board reinterpreted the Open Space Ordinance to count basement apartments as separate units. This is the key part that makes this application not fully conforming and, in essence, what grants the Board the legal wherewithal to deny the application!

By not mentioning this "uncomfortable part" of history, Mr. Pfeffer is attempting to rewrite history, hoping that the judge won't catch on and will grant his demand to overturn the Board's denial!

The trial date is set for December 7, 2023.

The Board has not yet filed their trial briefs. It remains to be seen if the Board will stick up for the truth and present the full story so the judge can get accurate picture as to why they denied the application.

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