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As first reported here on FAA News, Beth Medrash Govoha of America has filed a lawsuit against the New Jersey Department of Environmental Protection (DEP).

State attorneys have immediately responded with a motion seeking to dismiss BMG's complaint.

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 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.

State attorneys have immediately responded with filing a motion seeking dismissal of the complaint on the assertion that it was filed in the wrong venue.

Plaintiff, Beth Medrash Govoha of America’s claims are directly related to the Department of Environmental Protection’s jurisdictional decision that BMG’s proposed dormitory and family housing development is subject to the permitting requirements of CAFRA. 

Any challenge to Department decisions belongs exclusively with the Appellate Division, and only after any available administrative remedies have been exhausted, wrote Deputy Attorney General Kathrine M. Hunt.

The act of issuing the jurisdiction determination under the CZM rules was a State administrative agency action subject to the Administrative Procedure Act. Pursuant to the APA, the Office of Administrative Law hears “contested cases."

BMG did not request an administrative hearing to challenge the Department’s determination or file an appeal of the agency decision to the Appellate Division pursuant to R. 2:2-3. Instead, BMG filed a complaint in this court for a declaratory judgment determining that DEP’s interpretation of its own regulatory provisions is erroneous and that a CAFRA permit is not required for the proposed development.

In no scenario, though, should this court be required to weigh in on DEP’s regulatory interpretations. Therefore, the matter should be dismissed for lack of subject matter jurisdiction.

Additionally, DEP's Division of Land Resource Protection reviewed BMG's list of colleges and universities that have residential facilities throughout the State in an attempt to prove its point, disagreeing with the Department’s determination that its project does not fall within the CZM Rules’ “educational facility” exemption. The Department did not find this list relevant.

The motion to dismiss is returnable before Judge Craig L. Wellerson on Friday, February 2, 2024.

Even if BMG does refile the complaint in the Appellate Division, the state's attorneys may continue to argue that it is already well past the 45 day timeframe for filing an appeal.

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:

Anonymous said...

Just stop already! If the courts say something then that's it!