A developer asked Judge Hodgson to overturn the Lakewood Zoning Board's denial of his application because the Board's resolution lacked conclusions as to the Board's findings, and because the Board did not contradict the developer's professional experts, nor make a finding in their Resolution that the testimony of the developers experts was not competent or believable.
Judge Hodgson just agreed, and vacated the Board's denial of the application.
Jackson Township's Planning and Zoning Boards have their own professional traffic expert.
Lakewood Township's Planning and Zoning Boards do not.
This court ruling highlights why Lakewood's boards would benefit from getting their own professional traffic expert - they would be better equipped to protect themselves from litigation that threatens to overturn their decisions such as this one.
The litigation involves Covington Village.
Covington Village, off Locust Street, is bordered by Belz / Locust Grove and another senior living development, Harrogate.
Over 15 years ago, the development was originally approved by the Planning Board as 12 buildings with 30 age-restricted units in each building. Congregate housing is conditionally permitted in this zoning district but only with an age restriction.
The Planning Board additionally required the developer to place a deed restriction on the property that it is age restricted.
The developers went bankrupt after building only 7 buildings (210 apartments).
Subsequently, the project was purchased by Developer Cary Tajfel.
On September 19, 2019 Mr. Tajfel presented an application to the Lakewood Zoning Board to build the remaining 5 buildings (150 apartments) with no age restriction. He further sought a subdivision to separate the 2 developments.
Many residents of the adjacent Belz communities were opposed to the plan which would have added many families and associated traffic to this already busy area.
The Board denied the application, with some members opining that they disliked any lifting of the age restriction and some members opining that they mainly disliked the plan for so many apartments and not enough parking and lack of recreational open space.
On February 11, 2020 Mr. Tajfel submitted to the Board a new application with a revised plan of 4 buildings with 35 apartments in each, and a 5th lot for recreation.
After the Board received over 200 letters of opposition, Mr. Tajfel withdrew the application.
Mr. Tajfel returned to the Zoning Board in February 2022 with a revised plan that included completely separating the project entrances and exits, which was accomplished by widening the existing driveways and designating one for each development. The plan was also revised to remove parking in the new development adjacent to the clubhouse to add green space. The plans also converted the eliminated building into a recreational area with a courtyard pavilion featuring a putting green, a bocce court and a dog park.
The application sought 3 separate approvals: 1) Minor Subdivision approval to subdivide the new development from the existing development, 2) Site Plan approval for the new development, 3) Conditional Use Variance relief to waive the age restriction.
Ultimately, after multiple hearings on the application, a majority of the Zoning Board members stated that they disagreed with the developers' market analysis and they felt that there still is a strong market in Lakewood for senior housing apartments. Board members also expressed safety concerns as the school aged children would need to walk all the way to Locust Street as buses would not fit in the new development.
The Board took one single vote on all three applications. A motion to approve was offered. That motion failed, ultimately denying the application.
As first reported here on FAA News, back in April 2022, the Covington Village Homeowners Association, represented by Red Bank Attorney Matthew Fiorovanti Esq., filed a Complaint in Lieu of Prerogative Writs in New Jersey Superior Court in Ocean County seeking to overturn the Zoning Board's denial.
As previously reported here on FAA News, Judge Marlene Ford partially agreed with the developer.
Judge Ford noted that while the Board did one single vote on the entire application, there were technically three separate applications which were; 1) Conditional Use Variance relief to lift the age-restriction; 2) Minor Subdivision and; 3) Preliminary & Final Major Site Plan with Bulk Variance relief which included a Minimum Accessory Building Side Yard Setback variance of 8.9 feet where 10 feet is required, and a variance for a proposed eight foot vinyl fence, where the ordinance limits fence heights to six feet.
Saying that the Board should have done separate votes on the three applications, and because the Minor Subdivision was fully conforming and the variances on the Site Plan were de-minimus, Judge Ford overturned the Board's denial of the Minor Subdivision and Site Plan.
Regarding the Conditional Use Variance relief to lift the age-restriction, Judge Ford said that the Board's Resolution is "a bit unusual" at it "fails to state what the Board found troublesome about the application and their conclusions of law which ultimately led to their failure to approve the application."
As such, Judge Ford remanded the matter back to the Board for them to reconsider the age restriction lifting request, and then vote, either to deny it or approve it, and then adopt a resolution properly setting forth the reasons and justifications for the denial or approval.
In consideration of this decision, as previously reported here on FAA News, back in February 2023 the Board reconsidered the age restriction lifting request, and ultimately, the Board voted, 5-2, to deny the application.
As previously reported here on FAA News, following this second denial, the Covington Village Homeowners Association filed a new Complaint in Lieu of Prerogative Writs seeking to overturn the Board's second denial.
The Plaintiff's trial briefs contend that "their expert testimony was unrebutted in the record, and the Board had no basis to refuse to credit such testimony."
"While a Board may reject expert testimony, it may not do so unreasonably, based only upon bare allegations or substantial beliefs." Cell South of NJ v. Zoning Board of Adjustment, West Windsor Twp.
"A land use board is not free to disregard uncontradicted expert testimony without a reason." Exxon v. Bernardsville Board of Adjustment.
It is clear that the Board summarily disregarded the unrebutted evidence on behalf of the Plaintiff and instead interposed its own subjective, baseless opinion as to the propriety of the application. Even if the remarks of the individual Board members could constitute the findings of the Board as a body, the reasons articulated by these Board members are not supported by - and in most instances directly contrary to - the mountain of evidence presented by the plaintiff.
Several Board members voted to deny the application because of traffic concerns. Yet there was no evidence in the record to support such "concerns;" in fact, Scott Kennel testified that there would be no adverse traffic impacts associated with removing the age restriction. However, the Board decided - all on its own, without any basis to do so - that Mr. Kennel's well-founded opinions regarding the absence of any detrimental traffic impacts from the proposal were wrong. The resolution expressly indicates that these Board members relied on speculative traffic "concerns" "notwithstanding the testimony of the applicant's experts at the prior hearing." This candid admission, in and of itself, justifies the reversal of the Board's denial. The Board presented speculative hypotheticals, none of which had any basis in fact, regarding school buses entering the development and impacts on traffic. The Board had no basis Mr. Kennel's expert opinion "based on my 40 years of doing this, I'm very confident and knowing it's in Lakewood that this type of product that we have more than adequate parking for this development." Yet once again, the Board appeared to believe that it simply knew better than Plaintiff's experts that the proposed development would result in substantial negative impacts.
Several Board members also voted to deny the application based on their "concerns " about those property owners who purchased units based on the promise that the age restriction would be imposed throughout the entire community. Yet, not a single neighbor testified about such speculative "concern." On the contrary, Plaintiff presented unrebutted evidence which demonstrated that the existing Covington Village community voted overwhelmingly in favor of the separation and the removal of the age restriction, since the removal of the age restriction was the only way to avoid the existing homeowners' insurance premiums from skyrocketing and their home values from plummeting - again, a fact which Judge Ford found to be undisputed in the record.
In a written decision, Judge Hodgson agreed with the developer and vacated the Board's denial of the Conditional Use Variance to lift the age restriction.
A resolution must contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court. A mere recital of testimony or conclusory statements couched in statutory language will not suffice.
The Board's resolution lacks conclusions as to the Board's findings. It is therefore insufficient.
As to the requested Conditional Use Variance, the record shows that plaintiff produced experts that presented unrebutted evidence as to the continued suitability of the site for congregate living units notwithstanding the removal of the condition of age restriction. The evidence showed that the site would continue to accommodate the problems associated with the use even though the applicant would not be comply with the condition of the age restriction. Additionally, the proposal separates the communities and reduces the size of the proposed development to accommodate the amenities necessary, and provides for a complete separation that permits mutual beneficial coexistance.
It is this court's view that the unrebutted testimony clearly demonstrated the continued suitability of the site for congregate living notwithstanding the removal of the age restriction.
As to the negative criteria, first, as plaintiff pointed out, the whole purpose of the application to the Zoning Board was to implement a settlement agreement between the seniors and the developers. Accordingly, the separation of the two developments was beneficial to everyone.
Second, the Plaintiff presented unrebutted testimony that without a subdivision, insurance premiums would "skyrocket."
Third, it was not disputed that there is no demand for age restricted housing in Lakewood.
A review of the record establishes that the focus of the Board in denying the variance was traffic and the impact to the neighborhood of removing the age restrictions. The resolution and comments of the Board reference the following concerns: the potential adverse impact on the neighborhood, specifically the failure to address the need for age-restricted housing in Lakewood, the impact of addition of non-age restricted units on the existing age-restricted units in the neighborhood in terms of both value and intermingling of ages, as well as disappointing current owners with their expectation of continued age-restrictions, potential impact on the values; and safety concerns, specifically the utility of the entrance to the development, the traffic circulation particularly the ability of buses to turn within the development and the concern that children would have to walk a distance to the bus stop. The two votes in favor of the application saw it differently and believed that the majority of seniors were in favor of the variance, and that the applicant had met its burden.
Although a Board is free to reject the testimony of an expert, its determination must be made on a rational and reasonable basis. Here, the testimony of plaintiffs experts was comprehensive, informative, and consistent. Plaintiffs proofs in support of the variance were overwhelming. Their testimony was that there was sufficient parking and traffic flow that permitted ingress and egress and specifically, school buses would be and to enter and exit. In addition, the evidence was that there would be no negative impact on existing unit values as demonstrated by the substantial support by that community as reflected in the record.
The testimony by the plaintiffs experts was not contradicted by the Board's experts. As the Board made no finding that in the Resolution that the testimony of the plaintiffs experts was not competent or believable, this Court finds no basis in the record for its objection of their well-supported opinions.
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As noted above, the Planning Board's original approval of this application required the developer to place a deed restriction on the property that it is age restricted. This deed restriction remains in place and would require the new developer to file separate legal action in Superior Court, Chancery Division in order to get this deed restriction vacated.
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9 comments:
This is horrible news for the residents of Covington Village!! People moved here because it was zoned for 55+for many years, and now the developer comes in and changes everything to suut him.I hope this isn't over yet !!!
Massive issue was that, while Belz opposed the 2019 application, they did not oppose the 2022 application.
Due to this failure, the developers attorney was able to tell the judge, "look, the neighbors are no longer opposed to the plan!"
This is why it's so super important to get out to these Zoning Board meetings and void your objections "on the record," not on the phone, not in emails to the Committee, but on the record in person at the land use board. That is the only record which the judge reviews.
When neighboring residents are too lazy to come out to the land use boards and object on the record, they can only blame themselves for the mess they'll be forced to suffer with afterwards.
How can justice be served fairly when Cary Teijfel represents in court to be Covington village? He is his own separate entity with hos own special interest of himself and his wife and their businesses. He steamrolled the aged Board of 2015 with scare tactics and threats and of endless lawsuits. Anyone with an education such as this judge should have fails to read between the lines. Residents and owners of Covington village for years were told nonsense by an inefficient board, and a lacklustre management company, the last two failed us miserable, along with lawyers who themselves were literally asleep in the job. To say I am angry is an understatement, and for this to win in an already over built community that lacks infrastructure, has more deadly accidents to pedestrians and overturned vehicles, hints at corruption. When a tragic event befalls this tiny community due to this judge, due to past and present board members, attorneys and other people who should have looked out for the greatest generation, and failed them and refused to give seniors who are the tax payers and backbone of Ocean County, and of Lakewood in particular, by disregarding the basic entitlement of the elderly to live their last years in peace, this whole town will one day have to answer for the reckless decision to allow a rich and priveleged family to take us down.
Sickening , beiond mad , disgusted with the whole town .
Shame on you judge and all of you who let the older generation Down
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Matthew Fiorovanti misrepresented to Judge Hodgson that the lifting of the age restriction was necessary in order to effectuate the terms of the settlement agreement between Tajfel and the existing homeowners.
This is inaccurate as the only thing needed for the seniors was the subdivision, that is what will ensure their insurance rates do not skyrocket. The seniors have nothing to gain from lifting the age restriction.
Additionally, Judge Hodgson ruled from outside the record when he commented that the Mr. Tajfel has owned this property for a number of years and in all this time he has not developed the property with the approved age restriction, so obviously it is a true fact that it's unaffordable for him to do so.
Moreover, Chairman Halberstam misled the neighbors into sending opposition by email when in fact the judges agreed that accepting comments by email was illegal.
At the same time, Board Attorney Jerry Dasti deserves to take a beating.
He messed up the first time by not properly explaining to the Board Judge Ford's ruling regarding the differences between a Use Variance and a Conditional Use Variance.
He messed up the second time by not drafting a proper resolution.
Grr....
Dasti screwed up big time.. and I’m running out of fingers counting all his screw-ups. Lakewood deserves better. It shouldn’t be too hard for everyone to finally realize that he’s past his prime. It’s just ridiculous how many arguments he missed pointing out to the court.
Dasti, the town lawyer was for the developer right from the beginning. Also Judge Hodgson, says opposition emails from residents aren't legal??? Did he realize that the majority of these meetings were during the Covid shutdown and were online zoom meetings!!Also many seniors were physically unable to attend due to different reasons. Typical court ruling, as long as it's not my neighborhood!!!
Judge Hodgson and any others you want to see sickening, discussing and talk about letting the older generation down in Covington Village.Take a ride through Fairways at Lakeridge or the Enclave that was zoned for 55+ for many years when it was built.Really kids running all round, like a playground.I throw up every time I visit my mother.It's beyond mad and disgusting.We ask ourselves the questions why is their so much hatered in this world.Go over and you will get your answer.So let the truth be told.
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