Earlier this year, Lakewood Planning Board Attorney John Jackson's reckless collusion resulted in Yanky Lipshitz filing an easy lawsuit, seeking to overturn the Board's denial of his subdivision application.
Subsequently, Mr. Lipshitz, represented by Attorney Adam Pfeffer Esq., filed trial briefs which attempted to rewrite history (I.e. the legal basis for the Board's denial of the application). He was apparently hoping that Judge Hodgson would not catch on.
Following exposure on FAA News of these moves, the Planning Board is now fighting hard in court to ensure their denial of the application is sustained.
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.
In trial briefs he subsequently filed, Mr. Pfeffer argues 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 was attempting to rewrite history, hoping that the judge won't catch on and will grant his demand to overturn the Board's denial!
The good news is that following exposure on FAA News of the Board's faulty resolution - and the lawsuit that resulted from it - the Board adopted an amended resolution clarifying its legal basis to deny the application!
The amended resolution clarifies as follows:
Ordinance 18-808 requires that not less than 5% of land area of every residential major subdivision or residential site plan consisting of 25 or more units shall be preserved as common open space or shall be dedicated to active recreational or community facilities. The board found that a basement counts as a separate unit, by definition, when applying Ordinance 18-808. When including the basements with the overall unit count, the board found that the applicant is proposing 56 units and not preserving 5% of the land area for common open space or recreational or community facilities.
The Board ultimately rejected the application due to the applicant’s failure to preserve 5% of the common open space for community or recreational facilities pursuant to Ordinance 18-808, which is required based on the number of units proposed including the basement units. The Board found that an approval of this application would have significant detrimental effects on light, air and open space.
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 promote 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.
3. The proposed development would not provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens.
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The Planning Board has also just now filed their trial briefs. Their arguments push back hard against Mr. Pfeffer's arguments.
Attorney John Jackson wrote:
Plaintiff’s contention that the subject application was “by-right” is inaccurate. Plaintiff contends that the Board had no choice but to approve the application because it complied with all bulk requirements specifically delineated in the applicable ordinance.
However, the subdivision did not comply with all applicable ordinance and zone requirements. In fact, it was made abundantly clear at the multiple public hearings in this matter that the submitted subdivision plan required two (2) design waivers: from proposing street trees along Griven Boulevard and Chestnut Street frontages, and from providing non-radial lot lines. At the May hearing, the Board determined that the applicant also required a design waiver from preserving a minimum of 5% of land area as common open space or active recreational or community facilities.
During the public comment portion of the May 23 hearing, several individuals who live in or around the neighborhood voiced concerns regarding a lack of an open recreation space and stated that the lack of a proposed recreation space will result in an overflow into neighboring communities.
Several individuals came forward during the public portion of the hearing and expressed concerns regarding the lack of proposed playground and shul. The neighboring property owners testified that the neighboring playgrounds and shuls are full to capacity and cannot accommodate this development.
As a practical matter, recreational space and community center space is frequently utilized in Lakewood for a house of worship to service the immediate neighborhood. A very common cultural norm in Lakewood values a local house of worship because people of Jewish faith are required to walk to religious services on Sabbath. The overall tenor of the objections from the neighbors recognized the disruption that occurs when there is insufficient space in a neighborhood for amenities such as a house of worship if needed by the demographic of the ultimate end-users. Thus, open space, as envisioned and codified in the Lakewood ordinance is frequently utilized for a local house of worship.
In response, the Board explored the ordinance requirement for open recreation space for 25 units. The Board very clearly expressed that their interpretation of Ordinance 18-808, which is based on the unique circumstances presented in the area of Lakewood, includes basement units as additional units when calculating the unit count.
The Board expressed that the intent in enacting this ordinance was to establish a certain quality of life in the town that cannot be ignored simply because an applicant seeks to provide for double the amount of people in a development.
A motion was made to deny the application with the recommendation that the applicant propose a new application showing five percent or greater designated as open recreation space. The Board ultimately voted to deny the application based on safety concerns regarding traffic and parking issues on-site and on the streets directly surrounding the subject property and based on the lack of proposed open recreation space.
The Board properly expressed its interpretation of Ordinance 18-808 to include basement units as separate units when calculating the requirements of 18-808 to provide an open space set aside. Based on the Board’s interpretation of the ordinance, the Board found that the applicant’s proposal actually included 52 units and not 26.
The Board acknowledged that the applicant is not required to construct a shul or a playground, however, the applicant is required to preserve a minimum of 5% of the proposed development to fulfill the needs of the community.
Based on the testimony provided by neighboring communities, there is a lack of recreational and community facilities in the immediate vicinity of this proposed development. The granting of this application, based on the testimony provided and the Board’s interpretation of “unit,” would have a significantly detrimental impact on not only the owners of the units, but also on the community as a whole.
Considering that the application was not by-right, and a major concern of the Board revolved around the preservation of a minimum of 5% of the proposed subdivision for open space, active recreational or community facilities, the Board was well within its rights to deny the application.
Judge Hodgson has scheduled a trial on the matter to be held on Thursday, January 4, 2024.
The Board's amended resolution, coupled with their strongly (and correctly) worded trial briefs puts the Board on track to successfully defend their denial of the application.
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2 comments:
Glad to see the board has assumed responsibility for this mess and has decided to set the record straight.
Yanky must be stopped from destroying existing communities/neighborhoods by overbuilding and adding to our traffic nightmares.
This Yanky Lipshitz guy behaves like a pig. All he does is tarnish the reputation of developers in the area. In his selfish world, nobody else matters. Our town should spit him for good.
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