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Beth Medrash Govoha of America has filed a lawsuit against New Jersey Department of Environmental Protection (DEP), FAA News has learned.

The yeshiva plans to redevelop the former Woodlake Country Club on New Hampshire Avenue in Lakewood with classrooms, a student activity center, residential dormitories with 928 beds, 9 residential/housing buildings for married student housing, 1,800 parking spaces and a child-care facility.

The issue at hand is that the DEP is demanding that the yeshiva obtain a costly and timely CAFRA permit for the dormitory and residential housing buildings, and the yeshiva apparently wants to avoid this regulation.

According to their complaint filed in New Jersey Superior Court in Ocean County by Red Bank Attorney Matthew N. Fiorovanti, Esq.:

Under the Coastal Area Facility Review Act (“CAFRA”), N.J.S.A. 13:19-1 et seq., a permit is required for “development” in the coastal areas. 

The term “development” is defined under CAFRA to mean: the construction, relocation, or enlargement of any... public development.

The term “public development” is defined under CAFRA to specifically exclude an educational facility.

Accordingly, a “educational facility” is excluded from the definition of “development" which is what requires a CAFRA permit.

Beginning back in May 2019, when BMG had a pre-application conference regarding their project proposal, DEP indicated to BMG that although a CAFRA permit would not be required for the classrooms and student activity center, a CAFRA permit would be required for the housing elements of the Project.

BMG responded to DEP and the New Jersey Attorney General’s office with arguments that a variety of statues (unrelated to the CAFRA regulations) consider student housing as a component of - and not separate from - an educational facility and therefore, should also not be treated differently for purposes of regulation under CAFRA.

BMG further attempted to argue their case at subsequent meetings held with state officials in 2019 and 2020.

On May 17, 2022, counsel for BMG provided the Attorney General’s office a list of the colleges and universities located in New Jersey, which showed that almost every single one of these educational facilities had residential components. (The list does not mention whether or not these other schools were required to obtain CAFRA permits for their residential components).

Finally, on August 11, 2023, the NJDEP issued its formal judicial determination to BMG in which the NJDEP asserted that a CAFRA permit was required for the Project. DEP highlighted that “educational facilities” are exempt from the definition of “public development,” but that the statute does not provide that dormitories are captured by this exemption.

DEP stated, “Dormitories, family apartments and day care facilities are not included within the definition of ‘educational facilities,’ and are therefore not exempted from CAFRA regulation. Instead, the student housing and daycare facility components of the project are regulated as serving residential and commercial purposes, and require a CAFRA permit.”

In response, BMG has now filed a complaint in Superior Court seeking Declaratory Judgment declaring that BMG is not required to apply for or obtain a CAFRA permit in order to proceed with the Project.

Under the New Jersey Declaratory Judgments Act, a person whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

Because the Project consists of an “educational facility,” BMG is not required to obtain a CAFRA permit. However, DEP has erroneously interpreted the definitions of “development” and “public development” to maintain that a CAFRA permit is required for the Project. As a result of the NJDEP’s erroneous interpretation, BMG is precluded from proceeding with the Project which will otherwise result in significant benefits to the BMG community.

Accordingly, the right of BMG to develop the Project is directly affected by the NJDEP’s erroneous interpretation of its jurisdiction over the Project under CAFRA. As such, BMG has standing to request the entry of a declaratory judgment determining the question of the construction of CAFRA and specifically, whether a CAFRA permit is required in order for BMG to proceed with the Project.

In addition of the entry of a declaratory judgment declaring that BMG is not required to apply for or obtain a CAFRA permit in order to proceed with the project, the complaint also demands compensatory damages, interest, attorneys’ fees and cost of suit, and such other relief the court deems fair, equitable and just.

The complaint asserts that jurisdiction in Superior Court is proper on the grounds that Defendant DEP is an administrative agency of the State of New Jersey. Time will tell how this plays out as the Superior Court does adjudicate claims for declaratory judgement, however, "any appeal of the final agency decision shall be solely to the Appellate Division," (N.J. Admin. Code § 3A:5-2.8), and "appeals from final agency decisions shall be filed within 45 days." (R. 2:4-1 ). As the DEP issued their final agency decision on August 11, 2023, it is now well past the 45 day timeframe for filing an appeal.

DEP has 35 days to answer the complaint.

As was very first reported here on FAA News, back in October 2022, BMG closed on the purchase of the 150 acres Woodlake Country Club Golf Course for a purchase price of $18 million dollars.

Attorney Matthew Fiorovanti is well known for his arguments that dormitories are "part and parcel of a school."

Back in January 2023, Judge Ford rejected his arguments on behalf of Yeshiva Toras Chaim. Back in March 2023, Judge Hodgson also rejected his arguments on behalf of Yeshiva Toras Chaim. As previously reported here on FAA News, Mr. Fiorovanti is appealing those decisions to the Appellate Division. That case remains pending.

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1 comment:

Shaya said...

Even if BMG's appeal was filed timely and in the correct court, their case will be a difficult one to win.

When reviewing a final decision of an administrative agency, our scope of review is limited. In re Herrmann, 192 N.J. 19, 27, 926 A.2d 350 (2007).

In reviewing an agency's interpretation of a regulation it is charged with enforcing, we generally defer to the agency's construction of that regulation. Allen v. Bd. of Trustees, Police & Firemen's Ret. Sys., 233 N.J.Super. 197, 207, 558 A.2d 496 (App.Div.1989).

“An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record.” In re Herrmann, supra, 192 N.J. at 27–28, 926 A.2d 350.

As long as the courts can find that there is no indication that the DEP acted outside of its authority, or contrary to regulations, they will not reverse an DEP's final decision.