The Board also refused to reconsider the matter.
Mr. Dachs is now continuing the fight in court. The neighbors who were represented at the public hearing by Attorney Jan Meyer have not joined the fight in court.
Application SD 2511, filed under the name Yeshiva Chemdas Hatorah (but owned by Mr. Dachs) sought approval to build a brand new residential development at the 17.5 acre parcel on the northeast corner of Cross Street and James Street with 125 duplex homes plus basement apartments.
That is 250 families, and approximately 500 cars.
This zoning district does not permit duplexes. However, this particular application for duplexes was not seeking a Use Variance from the Zoning Board. As previously explained in a full background story here on FAA News, this is because the developer was demanding that he can rely on a loophole ordinance the Township Committee adopted in 2018 which states:
"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."
Back in March 2018, shortly before this ordinance was adopted, the developers of Yeshiva Chemdas Hatorah filed Application SP 2291 to the Planning Board for an Educational Campus at this site.
This application was never actually presented to the Board at a public hearing, rather it was simply filed with the Board's administrative staff.
The developer was now attempting to rely on this Educational Campus "submission" as the basis to now be permitted to apply for these 125 duplexes on 10,000 sq foot lots (which are permitted in the R7.5 zoning district) as a by-right application.
As previously reported here on FAA News, as soon as legal notice of this application was sent to the neighbors, they retained Teaneck Attorney Jan Meyer Esq., to represent them in opposing this application.
At their public hearing on the application, held in December 2022, the Planning Board delved into the 2018 Educational Campus application submission to determine whether or not it was indeed a "complete application was filed."
Board Attorney John Jackson Esq. noted that in August 2018 the Board Engineer provided a written review letter of the application and noted certain items which needed to be addressed before the application could be considered for a public hearing. Since that time, the applicant did not submit any follow up on the outstanding items.
In March 2020, Board Administrator Ally Morris wrote to the applicant:
"Your application has not yet been approved or denied by the Board... In the absence of activity on this application... the Board will schedule it to be dismissed without prejudice..."
Shortly afterwards, Attorney Adam Pfeffer responded:
"The applicant is addressing the design waivers and review comments. We anticipate providing additional submission documents in the near future."
Board members discussed the nuanced wording of the 2018 ordinance which states:
"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."
Board members ultimately determined that simply "dropping papers down on the desk" is not enough and you need to actually go forward with your application and comply with the Board Engineer's review letter in order for an application to be considered "complete application... filed," and because the developers of the 2018 Educational Campus developers did not submit additional documents as required by the Board Engineer, that application was deemed incomplete and therefore they are now not eligible for "re-approval for development of that tract.. in accordance with the provisions of the R-7.5 District."
Accordingly, the Board voted that they lacked jurisdiction to hear this application as duplexes are not a permitted use in this zone and they are only permitted in accordance with the 2018 ordinance, which does not apply to this application.
Months later, Mr. Doyle returned to the Board, requesting them to reconsider this application.
Essentially Mr. Doyle's first argument was that there are two portions to an application, submission and hearing. "Submission" is dealt with by the Board Administrator and "hearing" is dealt with by the Board, and the Board cannot now mix up the two and decide they have jurisdiction over the submission process.
Mr. Doyle noted that when the applicant submitted the Educational Campus application, Board Administrator Ally Morris deemed it administratively complete. "Thus, the process regarding the status of the application was concluded at that point with it being deemed complete. There is no further statutory authority for the application to be deemed incomplete retroactively. Moreover, the completeness determination process is delegated by the MLUL and the UDO exclusively to Ms. Morris, and legally cannot be exercised by the Board."
Mr. Doyle also noted that State Statue provides that any application which is not deemed to be incomplete within 45 days of submission is to be deemed complete, and as their 2018 application was not deemed incomplete within 45 days, it must have been automatically deemed complete.
The Board previously made note that the Board Engineer cited numerous deficiencies with the Educational Campus application which were never corrected, and the Board used this as their basis to now say that application was never complete. Mr. Doyle now argued that State Statue requires applicants to "correct any incorrect submissions," but specifically provides that incorrect submissions does not mean that the submission of the application is incomplete.
Mr. Meyer shot back with highlighting that the proposed application has nothing to do with Yeshiva Chemdas Hatorah.
"We all know that the developer is not the institution and the paper trail supports that very clearly. It is promoted by Mr, Dachs and presumably also paid for by the same part.
"The proposed homes are going to be sold at market value, all for the benefit and profit of the developer. In fact, the only motivation here is to maximize profits for the developer (apparently Mr. Dachs, behind all the facades and entities etc.) Granting and circumventing this application will be nothing more than participating in a charade and gaining nothing but a “private benefit” to the developer.
"The Board already agreed with the objectors, that the application had nothing to do with the Campus ordinance. The institution and applicant did not bring forward Rabbi Pruzansky presumably because he does not have anything to do with either the ownership or the development of the property in question. The Board previously stated that the application seemed very murky, and that determination of the validity and the intent of the governing body should be determined somewhere else. The Board ultimately and correctly determined that the application must be denied for a plethora of reasons. Nothing has changed since then, and same must be the outcome if the Board should reconsider their earlier decision," stated Mr. Meyer.
The Board ultimately agreed with Mr. Meyer that there was nothing for them to "reconsider," and they sent Mr. Dachs home empty-handed.
Subsequently, in February 2024, Yeshiva Chemdas Hatorah filed a lawsuit seeking to reverse the Board's denial.
The 5 count Complaint named as defendants both the Planning Board as well as the Township.
The suit highlights that the Board previously approved R7.5 applications where Yeshiva Gedolah of South Jersey had received a Planned Educational Campus approval, and on Cross Street and Massachusetts Avenue (Yeshiva Chemdas Hatorah's first application), and only at this application - which was filed under the same 2018 application did the Board put up a fight.
The first count of the complaint alleges that the Board’s failure to take jurisdiction of the application was arbitrary, capricious, and unreasonable.
The second count of the complaint alleges that the application should be granted an automatic approval.
The third count seeks declatory judgement that the 2018 ordinance only requires that a complete application for a campus be "filed" with the Board, and not that it needs to actually be heard and approved.
The fourth count alleges violations of the New Jersey Civil Rights Act. This count asserts that the developers are entitled to their civil rights of due process and equal treatment under the law, as well as their property rights to proceed with their application and ultimately the development of their land.
Specifically, this count contends that the Board has an obligation under the Municipal Land Use Law to hear site plan applications, and the board members violated the developer's civil rights by expressing that the Ordinance involved represented bad policy, would lead to a bad result, questioned the right of the Plaintiffs to apply as contract-purchasers, and ultimately tossing out the application with the claim that they lack jurisdiction to hear the application.
This count further asserts that the Board refused to take evidence on the facts and merits of the application and reached a predetermined decision to ensure the application was not approved, despite knowing they lacked the statutory power and authority to do so based on the merits of the application.
The fifth count charges that the Committee adopted an ordinance which is "ambiguous, and created a lack of express standards that has created inconsistent interpretation, difficult applications, and arbitrary action by the Planning Board."
This count asserts that the Township Committee's actions interfered with the developer's property rights, privileges, and immunities protected by the federal constitutional.
Planning Board Attorney John Jackson Esq. is representing the Board. Attorney Michael S. Nagurka, Esq. is also representing the Board as to Count Four.
Kevin B. Riordan Esq. is representing the Township Committee.
Mr. Riordan originally had the entire case moved to federal court due to the fifth count involving a federal question. However, that posed problematic for Yeshiva Chemdas Hatorah as Mr. Doyle is not barred in federal court. Instead, the developers consented to withdrawing the fifth count.
Mr. Nagurka and Mr. Riordan have just now filed a Motion to dismiss the fourth count as to both the Township Committee and the Planning Board.
The motion argues:
The Due Process Clause prohibits states from depriving “any person of life, liberty, or property, without due process of law.” The New Jersey Constitution similarly contains a due process clause. The prohibition contains both a procedural and substantive component. New Jersey also recognizes a substantive component of the due process clause.
When a plaintiff challenges the validity of a non-legislative state action, such as the decision at issue in this matter, Courts look, as a threshold matter, to whether the property interest being deprived is “fundamental” under the Constitution. If it is, then substantive due process protects the plaintiff from arbitrary or irrational deprivation, regardless of the adequacy of procedures used. If the interest is not “fundamental,” however, the governmental action is entirely outside the ambit of substantive process analysis and will be upheld so long as the state satisfies the requirements of procedural due process.
Thus, the first issue is always whether or not Plaintiffs have a fundamental “life, liberty, or
property” right at issue in the present case. This is true whether the issue is due process or equal
protection. Do the Plaintiffs have a constitutionally-protected property interest they seek to vindicate in the case at bar?
In this case, Plaintiffs allege the right to develop their land. More specifically, they allege a right to have a Residential Application heard 5 years after they presented a Campus Application, that was never heard or granted. Plaintiffs wrongfully allege they are entitled to this approval as a matter of law. Plaintiffs further allege that the Board’s interpretation of the Ordinance, to require approval of a completed Campus Application, is contrary to the plain language of the Ordinance and the prior practice of the Board.
None of the usual fundamental rights demanding heightened protection are implicated in such allegations. The right to develop property without regulation does not exist. There are no allegations of religious or racial discrimination alleged, and certainly no violation of First Amendment rights has been implicated. This is a dispute concerning the actions of the local Planning Board on an application for improvements. Plaintiffs object to the Board’s interpretation requiring that the prior Campus Application had to have been approved prior to consideration of the Residential Application. These are the kinds of decisions local planning boards make every day.
In the case at bar, Plaintiffs allege their protected property interest is “their property rights to proceed with their application and ultimately the development of their land.” While it is uncontroverted that Plaintiffs have property ownership rights, entitling them to procedural due process protections, these rights are not the kind of fundamental rights entitled to substantive due process or equal protection. Stated differently, the construction of the project contemplated by Plaintiffs’ Residential Application is subject to government regulation; the only issue is whether or not the Board’s decision was arbitrary, capricious, and unreasonable, based on the evidence before the Board.
As noted above, the first question in either a substantive due process or an equal protection
analysis is whether or not the Plaintiffs, be they property owner or neighbor, have a constitutionally-protected property interest in the decision that was made. A plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment’s due process protection applies. A plaintiff cannot prevail on a procedural or a substantive due process claim without showing he has been deprived of a property interest that the Constitution protects.
The text of the Fourteenth Amendment speaks of “property” without qualification. The constitutionally protected right in such cases is ill-defined. Some cases indicate that plaintiffs must establish “entitlement” to zoning and occupancy permits themselves, not merely to the use of their land, before they can properly invoke constitutional protections on these grounds.
Thus, in the context of land use regulation, that is, in situations where the governmental decision denies a landowner's intended use of their property, a land-owning plaintiff states a procedural due process claim where he or she alleges that the decision limiting the intended land use denied them a permit to which they were otherwise entitled. When the governmental action at issue is the denial of a permit the plaintiff must demonstrate a right under state law to obtain the permit in question.
Procedural due process rights attach to a mere possessory interest in property when the issue is denial of a requested use of land. In contrast, the threshold property interest necessary for one seeking substantive due process protection is much higher than for procedural due process protections. Not all property interests worthy of procedural due process protection are protected by the concept of substantive due process.
Plaintiffs attempt to satisfy the similarly situated requirement by reference to earlier applications made under the Ordinance. But two of the three referenced Campus Applications, Plaintiffs admit, were approved, before the Residential Application was considered. Whereas Plaintiffs’ Campus Application had never been approved and, in fact, had been deemed incomplete. In the one other application referenced by Plaintiffs, the Board’s Resolution recites that the previous Campus application was approved, although Plaintiffs allege this was a scrivener’s error. These allegations do not demonstrate unequal treatment of similarly situated applications. Each of the applications was demonstrably different. Accordingly, Plaintiffs’ Complaint fails to state a claim for violation of the equal protection or substantive due process protections of the New Jersey Constitution.
The motion is returnable before Judge Hodgson on Friday, May 10, 2024. Yeshiva Chemdas Hatorah has not yet responded to the motion.
As the first three counts only affect the Planning Board and not the Township Committee, if the Committee prevails on this motion then they will be dismissed from the litigation completely.
The neighbors who were represented at the public hearing by Attorney Jan Meyer have not joined the litigation in court.
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1 comment:
The neighbors should intervene in court.
The Township's attorneys can not be trusted all on their own to get the job done correctly.
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