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Ocean County Superior Court Assignment Judge Francis Hodgson today rejected Yanky Lipshitz's appeal to outright overturn the Lakewood Planning Board's denial of his Chestnut Holdings application.

However, the judge did find the Board's Resolution of Denial insufficient with Statutory requirements. Accordingly, the judge remanded the matter back to the Board to fix their resolution.

A key highlight of the litigation revolves around the Board's insistence that Mr. Lipshitz provide a shul and playground.

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.

A key point here is what occurred just before the Board voted:

After continued pushing from the Board and neighbors, the applicant's professionals offered to eliminate one house (i.e. one side of a duplex unit) to provide open space for the new development. The Board did not waiver, but rather insisted that they can not approve the application without an actual shul and playground, and without the boulevard being extended all throughout the entire roadway. After the applicant refused to provide an actual shul and playground, the Board voted to deny the application.

Subsequently, as previously reported here on FAA News, 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 did not require any variances, therefore, the Board's decision to deny the application was "arbitrary, capricious, and unreasonable."

The suit 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 application.

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.

At the trial held today, Board Attorney John Jackson Esq. laid out to Judge Hodgson the Board's demands for an actual shul:

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.

Additionally, Mr. Jackson noted that Mr. Pfeffer's contention that the subject application was “by-right” is inaccurate, because, while the application did not require any variances, it did require two design waivers: from proposing street trees along Griven Boulevard and Chestnut Street frontages, and from providing non-radial lot lines, and the Board had leeway to deny these waivers.

Mr. Pfeffer countered that this issue is not mentioned in the Resolution of Denial. He also questioned on what basis did the Board reject these design waivers.

Mr. Jackson shot right back, "what basis did YOU give the Board that they should grant the waivers?"

Judge Hodgson agreed that it is within the purview of the Board to either deny or approve design waivers, however, the reasoning does need to be in the resolution.

The judge therefore remanded the matter back to the Board for them to fix their resolution to comply with N.J.S.A. 40:55D-10(g) which requires that the Board make “findings of fact and conclusions based thereon," and to set forth same in a memorializing resolution.

Regarding the Open Space requirement, Mr. Pfeffer argued that he disagreed with the Board's reinterpretation of the open space requirement, and that the developers did offer at the public hearing (and are still willing to offer) to dedicate one lot for open space based on the calculations of 28 units - but not based on 56 units.

Judge Hodgson brushed him off saying that the Board has the legal right to interpret the Township's ordinances and in this case the Board properly determined that this is considered 56 units for the purposes of counting open space.

Mr. Pfeffer tried arguing that as far as "zoning" is concerned this is only a 28 unit subdivision. He added that "there is no guarantee that the future homeowners will use their basements for separate apartments. I know plenty of people who have large families and use their basements for their own families." Judge Hodgson pushed back, saying that the Board does have leeway to interpret the basement apartments in terms of the open space requirement even though in terms of "zoning" this may be only a 28 unit subdivision.

(This ruling has major ramifications for Lakewood. Going forward, developers will not be able to challenge the planning board's determination on the matter.)

Accordingly, Judge Hodgson directed Mr. Pfeffer that he should redesign the application to show an open space lot, using the Board's count of 56 units.

(Ultimately, this will likely result in a reduction of housing units, however, that remains to be seen).

However, what the Board did not win on is their bid to require the developers to construct an actual shul and playground.

Despite Mr. Jackson's best arguments to Judge Hodgson as to why Lakewood needs shuls and playgrounds, the fact of the matter is that the Township Committee has remained unwilling to fix this issue.

The Township's open space ordinance requires that developers set aside 5% which "shall be preserved as common open space or shall be dedicated to active recreational or community facilities."

What this means that the developers can simply set aside a vacant open lot. They are not actually required to construct a shul or a playground. Accordingly, the planning board has no leeway to require same.

Already back in July 2023, as first reported here on FAA News, this issue was brought to the attention of the Township Committee. Specifically, members of the public requested that the Committee fix this problem by amending the ordinance to say "5% of land area shall be preserved as common open space with active recreational or community facilities" - this will explicitly require actual playground equipment and /or shuls.

At the time, Mayor Ray Coles agreed with the concern and gave a preliminary enthusiastic response. 

However, since that time, despite numerous reminders here, here, and here, the Committee has simply ignored the issue.

Sounds like they just don't see any need for shuls and playgrounds in Lakewood.

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Anonymous said...

One can only hope the 5% open space they now need to give will actually be a playground..

Simcha Steinberg said...

This ruling is great news.

The way I see it is like this:

Lipshitz wanted the judge to rule that his application is approved and he can give open space for only 28 units.

The judge dismissed his claim and told him not to come back to the Board until he is ready to provide open space for 56 units.

On a side note, the Board wanted a real shul and playground. Unfortunately, they don't have leeway to require that thanks to the Committee's refusal to fix the ordinance.

On yet another side note, aside from the open space dispute, the application sought two minor design waivers (street trees and non-radial lot lines), and the Board's resolution does not reflect whether the Board granted or denied these waivers, as well as the basis for their reasoning.

As to that issue, Judge Hodgson remanded the matter back to the Board because he can't make a ruling unless their resolution gives him a complete record.

However, this minor issue is not the big deal here. The big deal is the developer's unwillingness to provide adequate open space for 56 families.

As to major issue, the greedy developer lost bigly - not only does he need to provide adequate open space, but we are now confident that the Board's reinterpretation of the open space requirement will withstand future greedy developers!

This is why this ruling is amazing.

One greedy developer lost for all his greedy friends.

Fed up with Lyin' Brian said...

This is what I find amazing about the developers.

RSIS requires secondary access roads when you have more than 25 houses on a dead-end road. However, they give a loophole for "multi-family development."

So, as it pertains to that regulation, the developers claim that their duplexes with basement apartments comply with RSIS's definition of "multi-family development" and therefore they don't to provide a secondary access road.

Magically, when it comes to providing open space, all of a sudden they claim that "maybe the basement apartments won't be rented out" so therefore they shouldn't count as separate units regarding the Open Space requirement!