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.
However, Solomon Halpern of Besadar Holdings, represented by Attorney Rob Shea Esq. has just gotten Judge Craig Wellerson to reverse course and overturn the Board's denial of the application.
The judge emphasized that the Township Committee decides what is permitted in Lakewood and it's solely their job to fix the Township's ordinances to curb continued unabated overdevelopment.
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.
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, stating, "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."
"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.
The Board voted to deny the reconsideration 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."
Subsequently, the Board did adopt a new Resolution of Denial, which states in part:
The Board found that this application is too dense after considering that there is no parking on the proposed street, which will cause individuals to park on 14th street, which will result in serious safety issues.
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 ordinances the Board posits will be impaired, he emphasized.
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 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.
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.
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, and instead directed the developer to attempt to submit revised plans to the Board that would eliminate the previously sought design waivers.
In response, Mr. Halpern did submit 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.
Subsequently, Mr. Halpern turned back to Judge Wellerson and asked for a second bite at the apple. He emphasized again that the Board did not deny the application due to the requested design waivers or due to any legitimate safety concerns, but rather, simply because Chairman Neiman stated that "the board needs to take into account the exclusivity of this neighborhood."
At a plenary hearing held on Wednesday, Judge Wellerson agreed, saying that he is constrained and compelled to reverse the Board's denial of the application.
The judge did not mention his finding at the previous hearing, that eliminating the radial lot lines design waiver would result in a minimum lot width variance. Instead, the judge weighed heavily on Mr. Flannery's testimony that even by eliminating the design waivers, they could still yield nine lots as long as they adjusted the drainage on the site to put stormwater management facilities in a less desirable position.
Judge Wellerson read from the Board's amended resolution which states, "the Board found that this application is too dense... the Board further found that 9 homes are too many for this application."
Mr. Liston argued that it's the developers job to prove he has a hardship if he wants design waivers. Judge Wellerson waived him away, saying, "what hardship does the Board see with the requested waivers? What is weird regarding the requested design? The Board simply can't say that by complying with every design standard, this would have resulted in less density."
Mr. Jackson responded, "by granting the waivers, the developer would get a higher number of lots than a subdivision without any waivers. This is what the Board did not want - to permit him to yield so many lots."
"Where does it say that the purpose of the radial lot lines is to regulate the yield of lots? Either way, the problems were only with the density, not with the waivers," shot back Judge Wellerson.
"New Jersey courts have consistently held that actions of municipal boards are presumed valid and will not be interfered with unless the local agency action is determined to be arbitrary, capricious, or unreasonable.
"Decisions made by the Board are entitled to a presumption of validity (Kramer v. Board of Adjustment of Sea Girt). Here, however, plaintiff has presented a sufficient case to overcome that presumption.
"The Township Committee is the one with the authority to look at an undeveloped piece of property and determine what the appropriate use of the property should be.
"It's incumbent upon the Township Committee to draft ordinances creating appropriate densities throughout the Township.
"Unfortunately, it's not in the Planning Board's discretion to question the density permitted by the Township Committee.
"The Board's amended resolution states, 'the Board found... [that] 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.'
"There is no rational here that the radial lot lines design waiver impact the density - simply because the developer is not seeking any more than he is entitled to. Therefore there is no record before the Board that an approval of the application would substantially impair the intent and purpose of the municipal zoning plan and ordinances.
"The Board's rationale is that they understand the community better than the court does. They are arguing that it is well-settled law that local officials, because of their familiarity with their community’s characteristics and interests, be allowed wide latitude in the exercise of their delegated discretion.
"However, in this case, their decision was arbitrary, capricious and unreasonable, outside of the Board's purview.
"I'm not substituting my own judgement for what is best for Lakewood. I'm saying that I need to consider what is reasonable under the circumstances. Was the reason for the denial based on the waiver or based on other reasons, such as the "uniqueness" and "specific clientele" of the Fourteenth Street neighborhood.
"There is no record before the Board that an approval of this application would create a dangerous situation. Therefore, the question here simply is 'does Lakewood permit this type of development?' That is the question. The answer is yes. Therefore, the Board simply can't enact its own zoning plan," Judge Wellerson concluded.
Mr. Liston also argued that the Board lacked jurisdiction to hear the application because the legal notice was faulty as it only mentioned nine homes and not the additional basement apartments. Judge Wellerson responded, "feel free to appeal my decision."
A number of neighbors appeared in court to emphasize their opposition to this application. Mr. Liston indicated he does intend to appeal the court's ruling.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment