Just weeks ago, Fourteenth Street residents, led by Viggy Blech, were victorious in New Jersey Superior Court in defending the Lakewood Planning Board's denial of Besadar Holdings' application.
The victorious residents were represented by Attorney Ed Liston.
However, Solomon Halpern of Besadar Holdings is not ready to wave the white flag. He is running back to court hoping for a second bite out of the apple!
As first reported here on FAA News, back in June 2022, Solomon Halpern of Besadar Holdings, represented by Attorney Robert C. Shea, Esq. and Engineer Brian Flannery, presented 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 did not require any variances, however it did seek two design waivers, 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.
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 Planning Board typically approves new developments easily, especially if they are technically fully conforming. However, this application got very special treatment.
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.
Ultimately, 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.
Following the vote to deny the application, the Board adopted a Resolution of Denial which 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 of the Board. The Board ultimately rejected the application on the basis of significant public safety concerns regarding the lack of street parking coupled with the substantial proposed density particularly in light of the basement apartments notes 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 the applicant's proposal does not further the purposes of zoning pursuant to the New Jersey Municipal Land Use Law because:
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."
As first reported here on FAA News, represented by Attorney Shea, back in November 2022, 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 sought to overturn the Board's denial, asserting that "though there was one single design waiver, the application was "effectively as of right."
Essentially, the lawsuit charged that the Board manufactured safety concerns and that the application was fully conforming, but for the two design waivers - neither of was the basis of the Board's denial of the application.
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, following the filing of the lawsuit, Viggy Blech retained Attorney Ed Liston Esq. to join the lawsuit as intervenor and help defend the Board.
As previously reported here on FAA News, at a trial 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, which states in part:
The Board further found that 9 homes are too many for this application and stated that the Board would be comfortable with 7 homes and no basements.
The Board found the applicant could not satisfy the negative criteria because an approval of this application would have significant detrimental effects on the safety of the neighborhood and would also substantially impairing the intent and purpose of the municipal zoning plan and ordinances.
The Board further 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 promote the the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment.
At a plenary hearing held by Judge Wellerson on November 2, 2023, Mr. Shea continued to vehemently argue that the application simply sought two design waivers, and the Board's denial was not based on either design waiver.
He added that it is nothing short of ludicrous for the Board to argue 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.
Judge Wellerson then turned to Mr. Jackson and Mr. Liston, and asked, "the Board's transcript and Resolution talks a lot about density and not very much regarding non-radial lot lines. Is the Board's denial truly based on the design waivers from providing from providing non-radial lot lines?"
Mr. Jackson and Mr. Liston convinced Judge Wellerson that the two are very much related, as by eliminating the non-radial lot lines, the developer would not be able to squeeze in so many homes, therefore this is actually the very basis for the Board's concerns and their denial of the application!
Mr. Liston added that 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.
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 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.
Mr. Shea attempted to shoot back that the Ordinance also permits the Board to grant a design waiver "if the applicant can clearly demonstrate... peculiar conditions." However, Mr. Jackson firmly agreed with Mr. Liston that the application could easily be redesigned to eliminate the requested design waivers, thereby losing the "peculiar conditions" standing.
At that point, Judge Wellerson pointed out that if the lots were modified to eliminate the non-radial lot design waiver, then the lots would become narrower, thus creating a lot frontage setback. Hence, it doesn't appear possible to fit 9 lots on this tract without any variances at all.
Accordingly, as previously reported here on FAA News, Judge Wellerson declined to overturn the Planning Board's denial the application.
However, Mr. Halpern is not taking the matter sitting down.
He submitted a revised subdivision plan to the Planning Board. He told them that it was fully conforming and therefore they should approve it. Of note is that the Board Engineer did not review it for consistency with the ordinance before it was presented to the Board.
The Board discussed the matter in a closed session. Ultimately, the Board decided they did not want to settle the matter and approve the revised plan.
In response, Mr. Halpern is turning back to Judge Wellerson, hoping that he will convince/force the Board to accept his revised proposal.
Judge Wellerson has scheduled a plenary hearing on the matter to be held on Wednesday, December 20, 2023.
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2 comments:
If this application is denied solely due to the neighborhood being a unique neighborhood, let them have a 10% tax increase for their exclusiveness….
This denial just proves how corrupt this town is, and who you knows matter. There are worse approvals and waivers being given out like candy on simchas torah, all over town.
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