Lakewood developers Denton Holdings, LLC (the Registered Agent on file for this company is Dudi Zions) are using their Jewish card in an attempt to seek monetary damages from Jackson Township following their winning litigation overturning the Jackson Township Zoning Board's denial of their application.
The developers are seeking a court order to enforce Subpoenas against the Zoning Board members "to confirm the unlawful bias expressed towards them during the application process."
The Board has just shot back with a petition to quash the subpoenas, calling the entire litigation "frivolous, with no merit at all."
Denton Lane is located in the Township’s RG-2 Regional Growth Zone which permits detached, single-family developments in this zone as a conditional use, subject to certain requirements. The Township's ordinances for this zoning district do not regulate lot coverage or building coverage on single-family lots within this zoning district.
Denton Holdings intended to develop 21 single-family lot subdivision, one affordable housing lot with four units, and one stormwater management basin lot.
In 2019, they submitted an application to the Township's Zoning Board for a conditional use variance as their application did not meet all of the bulk requirements for the conditional use and sought deviations for lot depth, lot width and lot frontage. This application was bifurcated, meaning that they were first seeking use variance approval which would be followed by, and conditioned upon, a separate subdivision approval.
At their public hearings for their Conditional Use Variance there was discussion between the Board and Denton's planner, Ian Borden, PP, and attorney, Adam Pfeffer, Esq., regarding the design of the homes to be constructed.
Mr. Borden told the Board that he did not yet design the subdivision and he did not yet discuss with the developer the specific sizes of the homes, however "a typical subdivision would include two story houses with a building area of 2,500 to 3,000 square feet to accommodate 4 to 5 bedrooms."
Mr. Pfeffer expressly stipulated that "for all of those things we would come back before the site plan so the Board would have an opportunity to see and review all those designs."
On October 16, 2019 the Board granted the conditional use variance. The Board's Resolution of Approval memorializes the grant of the use variance to permit deviations in lot depth, lot width and lot frontage for an anticipated major subdivision and site plan for the Property. The resolution does not stipulate any express limitation that those houses would be no larger than 3,000 square feet with five bedrooms.
Subsequently, in late 2020, the developer returned to the Board with a Subdivision application. That application proposed homes of up to 5,000 sq feet to accommodate an average of 6 bedrooms.
The Board insisted that this design was larger than what was represented to them during the Use Variance hearing, and ultimately they denied the Subdivision application.
On March 5, 2021, represented by Attorney Matthew Fiorovanti Esq., Denton Holdings filed a lawsuit seeking to overturn the Board's denial.
The 5 count Complaint in Lieu of Prerogative Writs focused mainly on allegation that the denial was arbitrary, capricious and unreasonable, which is the "standard" way of seeking judicial review of Board action.
The complaint contended that the Board’s consideration of the general purposes of zoning and the public welfare, rather than a consideration of whether the subdivision application satisfied the subdivision and zoning ordinances, was erroneous.
A denial of a preliminary and final subdivision application must be based only on specific failures to meet stated subdivision or zoning ordinance standards, and cannot be based on a consideration of the general purposes of zoning and the public welfare independent of the standards enumerated in the ordinance.
The Board invoked the incorrect standard for governing the validity of a preliminary and final major subdivision.
The Board’s approval of the application for preliminary and final subdivision, as memorialized in the Resolution, was therefore arbitrary, capricious and unreasonable, and contrary to law.
At trial, Judge Marlene Ford vacated the Board's denial, finding that the Township's zoning ordinances do not restrict the number of bedrooms or square footage of the size of single family homes in this zone, therefore the Board's condition on this aspect was inappropriate.
Things took a dramatic change in course on April 28, 2023, when Denton Holdings amended their Complaint, seeking to "supplement their legal theories for the recovery of such monetary relief" - by playing the Jewish card.
Mr. Fiorovanti wrote:
Plaintiff, whose principals are Orthodox Jews, sought to subdivide a parcel in the Township in order to construct a housing development on 21 single-family lots plus 1 multi-family affordable lot. In furtherance of this plan, Plaintiff submitted an application for subdivision approval to the Board, as certain proposed lots required minor bulk variance relief.
Consistent with its well-established pattern of anti-Semitic decision-making, the Board unlawfully denied the application after Plaintiff refused to agree to limit the size of the homes to a maximum of 5 bedrooms.
The reason for the Board’s insistence on such limitation—which does not exist under any Township ordinance—was obvious: the Board, aware that Orthodox Jewish families are typically large and typically reside in homes that can accommodate such large families through a larger number of bedrooms, wished to prevent Orthodox Jewish families from moving into the Township.
Given that there is no objective requirement relating to bedroom numbers, no other conclusion can be drawn. Indeed, this is not the first instance in which Defendants have been accused of being motivated by religious and racial animus towards Orthodox Jews in connection with land use applications.
Following the institution of this action, the court entered partial final judgment in favor of Plaintiff, concluding that the Board’s denial of the subdivision application was improper. Yet while Plaintiff has finally obtained subdivision approval, Plaintiff has suffered substantial damages as a result of the delay which has resulted from the Board’s wrongful denial. Given the amount of time that has passed since the initial wrongful denial of the application, Plaintiff lost the ability to obtain needed sewer capacity. Plaintiff is now forced to attempt to purchase such capacity when it would have otherwise been available had its subdivision application been properly granted.
Moreover, the interest rates have increased significantly, and the overall economic conditions have been much more volatile, which has caused Plaintiff to incur substantial economic damages.
The now filed amended complaint highlights front and center that "upon information and belief, Defendants were aware that it was likely that Orthodox Jews would be the purchasers of the homes in the proposed development. Indeed, Orthodox Jews have been purchasing homes in the Township in growing numbers in recent years. It is estimated that there are approximately 3,000 Orthodox Jewish families and 15,000 residents residing in the Township at the present time.
"Numerous lawsuits have been brought against Defendants arising from Defendants’ misconduct in delaying and thwarting land use applications for the development of homes to be purchased by Orthodox Jews. Defendants understood that Orthodox Jews would be the likely purchasers of the homes in Plaintiff’s proposed development, and consistent with their prior misconduct in delaying and thwarting similar land use applications, took steps to delay and thwart Plaintiff’s subdivision through the imposition of a legally non-existent and discriminatory maximum-bedroom limit."
The 8 count amended complaint alleges Violation of Conditions of Court Orders Affirming Compliance and Granting Repose and Immunity From Builder’s Remedy Litigation; Violation of RLUIPA - The Board denied the subdivision application because it did not wish to allow large families that would result in Orthodox Jewish families moving into the Township. A such, the Board premised its denial of the subdivision application on Plaintiff’s failure to comply with the non-existent representation regarding the maximum size of the homes. The Board’s denial of the subdivision application constitutes the imposition or implementation of a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution in violation of RLUIPA; Violation of Fair Housing Act; Violation of Equal Protection Clause – Fourteenth Amendment to the United States Constitution; Violation of Substantive Due Process – Fourteenth Amendment to the United States Constitution; Violation of Equal Protection Clause – New Jersey Civil Rights Act; Violation of Substantive Due Process – New Jersey Civil Rights Act; and Violation of the New Jersey Law Against Discrimination.
The amended complaint demands judgment against the Zoning Board awarding compensatory and consequential damages in an amount to be determined at trial; Treble damages; Punitive damages; Attorneys’ fees; Vacating the Court’s Judgment of Compliance and Repose; Authorizing the filing of a builder’s remedy litigation against the Township; Costs of suit; and For such other relief as may be just and equitable.
As previously reported here on FAA News, Denton Holdings is once again running back to court regarding this matter, as the Board is refusing to submit to depositions.
Prior to the filing of the Amended Complaint, the parties had agreed to mediate the dispute with Hon. Frank A. Buczynski, Jr. (Ret.). The parties and Judge Buczynski had scheduled the mediation for May 16, 2023. However, after the filing of the Amended Complaint – even though there were no new factual allegations and the nature and amount of requested monetary damages had not changed – the Township and Board advised that “they were not amenable to continue to mediation at this time,” but noted that “they would expect that mediation would be beneficial in the near future.”
The parties appeared for a Status Conference on May 22, 2023, during which time Defendants advised the Court that they intended to file an Answer to the Amended Complaint within 7 days. The Court entered an Order requiring the parties to report back to the Court on July 10, 2023, and to provide the Court with a Consent Order establishing discovery dates and deadlines by July 10, 2023.
As the Board was indicating that they preferred to litigate rather than mediate, on June 14, 2023, Plaintiff served Subpoenas for the depositions of Board members Kathryn McIlhinney; Scott Najarian; Stephen Costanzo; Gary Miller; James Hurley; Jeanine Fritch; and Carl Book. In addition to seeking the deposition of the individual Board members, the Subpoenas also required each individual Board member to produce certain documents.
The Court entered a Consent Order on July 14, 2023, which provided that depositions of facts witnesses shall be completed by November 15, 2023.
Thereafter, the Township served interrogatories and a notice to produce upon Plaintiff on July 28, 2023.
The parties reconvened for a Case Management Conference with the Court on September 11, 2023, during which counsel for the Township advised that it was awaiting Plaintiff’s responses to the written discovery requests, and upon receipt, would evaluate whether the Township would agree to mediation. The Court entered a Case Management Order which scheduled another case management conference for November 27, 2023.
On November 14, 2023, Plaintiff served its answers to the Township’s interrogatories and produced certain documents in response to the Township’s notice to produce.
The court conducted another Case Management Conference on November 27, 2023. During the conference, counsel for the Township advised that he was still reviewing the documents and interrogatory answers provided by Plaintiff in order to report back to the Township’s insurance carrier and recommend whether the Township should participate in mediation. The Court scheduled a follow up conference for January 16, 2024, to enable the Township to perform that review. In addition, during the conference, Plaintiff advised the Court that it was holding off on proceeding with the depositions of the individual Board members until such time as the Township confirmed its mediation position to avoid potentially unnecessary expenses. The Court entered a Case Management Order which scheduled another conference for January 16, 2024.
On January 16, 2024, counsel for the Township advised that it was “likely” that the Township would agree to mediation, but may need to depose Plaintiff before formally agreeing to do so.
Once again, Plaintiff’s counsel advised that Plaintiff was holding off on proceeding with the depositions of the individual Board members until such time as the Township confirmed its mediation position to avoid potentially unnecessary expenses. The Court entered an Order which scheduled another conference for March 4, 2024, at which time the “parties shall confirm whether they will participate in mediation.”
The parties again appeared for a Case Management Conference on March 4, 2024, and the Township again advised the Court that it required additional time to confirm whether it would participate in mediation. The Court entered an Order which scheduled a conference for March 18, 2024, during which the parties would advise as to “whether all parties wish to participate in mediation,” and if not, “final discovery deadlines will be set on an expedited basis and dates for dispositive motions will be set.”
On March 18, 2024, the Court held another case management conference. During the conference, the Township finally advised that it did not agree to participate in mediation. As such, the Court extended the discovery period for 30 days until April 18, 2024, and scheduled a pretrial conference for April 22, 2024.
The next day, March 19, 2024, counsel for Plaintiff requested that the Board provide dates for the depositions of the individual Board members. In response, counsel for the Board advised that the Board intended to file a motion to quash the Subpoenas.
Denton Holdings has now jumped in first by filing a motion to enforce the Subpoenas and compel the depositions of the individual Board members and to extend the discovery period to allow for the completion of such depositions.
Mr. Fiorovanti wrote that the Subpoenas were served "to confirm the unlawful bias expressed towards Plaintiff during the application process."
"The deposition testimony of the individual Board members is not protected by any privilege and is critical to the claims raised by Plaintiff in this action. Indeed, in the Oros Bais Yaakov lawsuit, in which the Orthodox Jewish school alleged that the Board engaged in unlawful and unconstitutional conduct through the denial of a site plan application, the individual Board members were deposed and compelled by Court order to produce personal Facebook information and other materials. There is no basis to exempt the Board members in this action from having to appear for depositions and produce the subpoenaed materials," Mr. Fiorovanti wrote.
Zoning Board Attorney Ryan J. Murphy, Esq. has just filed a Cross-Motion seeking to quash the subpoenas.
The cross-motion states:
The Board asserts that the depositions sought by Plaintiff are nothing more than a fishing expedition, designed to harass past and present Board members who made a Land Use Determination with which the Plaintiff disagrees.
In fact, Plaintiff has no factual basis whatsoever aside from pure, unsupported, unfounded, baseless speculation, to support those allegations in Plaintiff’s Amended Complaint and; accordingly, Plaintiff’s attempt to abuse the discovery process and go fishing for information where Plaintiff is in possession of no fact, document, and/or evidence that could potentially support any of those allegations is inappropriate and should not be permitted by this Court.
Plaintiff’s brief asserts that the intent of these subpoenaed depositions are to “gain information regarding the Board members’ awareness of the growth of the Orthodox Jewish population in the Township, the vocal public opposition to such growth, the Board members’ own personal observations and opinion regarding such growth, and their awareness of the fact that Plaintiff’s proposed development would be occupied by members of the Orthodox Jewish community.”
The basis for requiring these “proofs” was shattered by the testimony of the Applicant’s sole owner, member, and/or employee during his own deposition. What is clear is that Plaintiff has no proofs to support any allegations as to purported violations of RLUIPA, the FHA, the Equal Protection Clause, Due Process, and/or the NJLAD and that Plaintiff is asking this Court to permit his abuse of the discovery process, as well as his harassment of volunteer Board Members, to go on a fishing expedition in the hopes that Plaintiff could possibly glean some mere iota of even a portion of a fact that might provide some shred of credibility to his wholly unsupported allegations.
Plaintiff’s Motion paperwork alone should make clear that Plaintiff’s claims are unsupported by any fact and/or evidence which could support those claims made by Plaintiff. Plaintiff’s brief and exhibits are completely devoid of even one reference to the record in this matter which actually supports those allegations found in the Complaint.
Based upon the testimony of Plaintiff at his deposition, it is clear that he has no factual basis to assert that the Board acted with any discriminatory animus toward anyone, or that the Board even knew that this development was intended solely for members of the Orthodox Jewish Community.
Based upon a review of the entirety of the record in this matter, it is clear that there was no discriminatory animus against anyone. This was a bifurcated residential subdivision application which required a conditional use variance related solely to the use as a residential subdivision. No religious use of any portion of the subject property was proposed and/or referenced, expressly and/or implicitly, at any point during any one of those four public hearings held on this bifurcated application.
Neither portion of this bifurcated application, heard over the course of four public meetings, contained any reference, express or implied, to any religion, creed, race, national origin, and/or any other protected class.
There is no fact in any part of the record and/or of which Plaintiff is aware that could permissibly lead to any conclusory statement, as made by Plaintiff, that the Board was aware that the subject residential development was intended for members of the Orthodox Jewish community. In fact, by Plaintiff’s own admission, Plaintiff was not even aware that the homeowners within the proposed subdivision would be members of the Orthodox Jews. If Plaintiff himself was unaware of the fact that this development was intended solely for members of the Orthodox Jewish community at the time of the hearings, there is no basis whatsoever for Plaintiff to assert that the Board knew something that even he, as the Applicant, did not know and could not testify to.
There is no factual evidence whatsoever that Plaintiff can produce that would permit any Court to conclude that in this application, by denying a purely residential subdivision application, that Defendant Board, in any way: a) placed a substantial burden on the religious exercise of a person, including a religious assembly or institution; b) imposed and/or implemented any land use regulation in a manner which treats religious assembly or institution on less than equal terms with a religious assembly or institution; c) imposed or implemented a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination; d) imposed or implemented any land use regulation that totally excludes religious assemblies from a jurisdiction; or e) imposed or implemented any land use regulation that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. Accordingly, there is no valid RLUIPA claim, and it is egregious to subject Board members to depositions based on an unprovable, disingenuous, and frivolous claim.
There is no factual evidence whatsoever that Plaintiff can produce that would permit any Court to conclude that in this application, by denying a purely residential subdivision application, that Defendant Board, in any way violated the Fair Housing Act as Plaintiff clearly testified that he, himself, was unaware that only Orthodox Jewish community members would purchase those homes in the proposed residential subdivision.
There is no factual evidence whatsoever that Plaintiff can produce that would permit any Court to conclude that in this application, by denying a purely residential subdivision application, that Defendant Board, in any way violated the Equal Protection Clause of either the Federal and/or State Constitution(s). There is not one shred of competent evidence which Plaintiff has produced which would permit a finding that the denial of a purely residential subdivision was intended to discriminate against the Orthodox Jewish community or that Defendant Board denied same with any discriminatory animus. There is no factual evidence whatsoever that Plaintiff can produce that would permit any Court to conclude that in this application, by denying a purely residential subdivision application, that Defendant Board, in any way violated Substantive Due Process as found in either the Federal and/or State Constitution(s). Again, there is not one shred of competent evidence which Plaintiff has produced which would permit a finding that the denial of a purely residential subdivision was intended to discriminate against the Orthodox Jewish community or that Defendant Board denied same with any discriminatory animus.
Likewise, there is no factual evidence whatsoever that Plaintiff can produce that would permit any Court to conclude that in this application, by denying a purely residential subdivision application, that Defendant Board, in any way violated the NJLAD by discriminating against, or preventing the development of housing for, the Orthodox Jewish community.
The allegations in Plaintiff’s Amended Complaint are clearly without merit and, in what can only be defined as a disingenuous effort, Plaintiff has claimed that the Board discriminated against him and other members of the Orthodox Jewish community by denying a residential subdivision without any religious use component, any discussion of religion, and/or any discussion of the Orthodox Jewish community at any point during the life of this Application.
The Court should not permit Plaintiff, who filed a Complaint filled with what are now confirmed to be baseless allegations, very clearly unsupported by any credible evidence to proceed to depose past and present Board members.
The discovery sought by Plaintiff is designed to harass those volunteer Board members who denied the subject application. There is no other permissible conclusion based upon the lack of evidence in Plaintiff’s possession.
Discovery is not a fishing expedition for potential claims or defenses. Plaintiff clearly lacks any evidence to support any of its claims and should not be permitted to go fishing by harassing Board members who made a decision to deny a residential subdivision where there was no religious use proposed, no mention of any race, religion, creed, national origin and/or other protected class, and/or any indication from any portion of the record that the subdivision sought by Plaintiff was intended only for members of the Orthodox Jewish community.
Based upon the entire record in this matter which is devoid of even one fact that supports Plaintiff’s claims, as well as the deposition testimony of Plaintiff, requiring seven past and present board members to submit to depositions which amount to no more than fishing expeditions would be both unreasonable and oppressive. Accordingly, the Court should quash the subpoenas.
The Zoning Board has also served the developers with a Notice of Frivolous Litigation, warning them that they will seek their legal fees if the litigation is not withdrawn.
The motion to enforce the subpoenas is returnable before Judge Hodgson next Friday, April 26, 2024.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
1 comment:
Sounds like the board is playing dirty.
Post a Comment