JUST IN: ATTORNEY JAN MEYER FILES LAWSUIT TO OVERTURN CONG. SUNSET ROAD SEFARDIC'S SITE PLAN APPROVAL

Back in December 2023, to many boos from the neighbors, Lakewood Township's Planning Board granted approval to Sunset Road Sefardic Congregation's Site Plan application.

The neighbors, who are represented by Teaneck Attorney Jan Meyer Esq., have just filed a lawsuit seeking to overturn the Board's approval, FAA News has learned. The complaint lists a number of issues which were brought to the attention of the Planning Board members, who ignored the issues.

The Board's approval came after their third contentious hearing on the application.

Curiously, while Attorney Adam Pfeffer Esq. represented to the Board that "the shul is anyways already here in the current building," the Rabbi of the shul admitted to the Board that the proposed Site Plan "will double the size of the existing shul."

The Rabbi also made things more contentious when he testified, "it stinks to live next to a shul."

The revised Site Plan presented to Board at this hearing was for the construction of a proposed two-story synagogue, almost 4,800 sq feet in area. The architectural plans depict a main sanctuary of 2,900 sq feet as well as adjoining 748 sq feet cheder sheni on the first floor, as well as a 1,541 sq feet ezras noshim and 217 sq feet warming kitchen on the second floor.

Designing a sizable "cheder sheni" room next to the main sanctuary is a legal loophole to get away from parking requirements as the Township only requires parking on the main sanctuary room area and not on any "accessory rooms." The neighbors highlighted this issue to the Board. However, the Board responded that their hands were tied. The neighbors are now taking this issue to court.

According to the shul's calculations, the 2,900 sq feet main sanctuary room requires 30 parking spaces.

The shul's professionals testified that they plan to provide only 2 parking spaces on-site, and to provide the remaining required parking spaces offsite at the shopping center to the southeast of the Sunset Road and James Street intersection.

The application was represented by Attorney Adam Pfeffer Esq. and Engineer Brian Flannery, who indicated that they have an agreement with the owners of the shopping center to utilize some of their parking spaces.

Per the Board Engineer's review, the application required variances for Aggregate Side Yard Setback, maximum Building Coverage, Buffer, and Parking Setback.

Additionally, the revised plans propose the parking lot only 2 feet from the front right-of-way line. This conflicts with most of the proposed Shade Tree and Utility Easement. Therefore, a design waiver was required from proposed street tree spacing since they can only be planted near the property corners.

Importantly, the application also sought a design waiver from providing the required 20 foot buffer on each side. The application sought to provide a 0 foot buffer.

Numerous neighbors - represented by Mr. Meyer - spoke up, saying that they have many concerns with the current ad-hoc shul, including substantial illegal parking, trash not being kept in the refuse container, as well as many members smoking close to their property line at all hours of the day and night.

Neighbors also emphasized that aside from just a shared parking plan, they also want to see a buffer plan to address their privacy concerns.

The neighbors also heavily objected to the proposed off-site parking plan, saying that many congregants will park on Sunset Road which is already congested. They added that the shopping center only appears to have unused parking spaces because Torah Umesorah has moved out and no new tenant has yet moved in.

In addition, the neighbors reminded the Board that, at the previous hearing, they told the applicant to supply the Board with a shared parking easement which can be recorded in the Ocean County Clerk's Office (so it can be enforced perpetually) and the applicant failed to supply this parking easement.

Mr. Meyer added that the Zoning Board's approval for the shopping center required 250 parking spaces and they did not provide any extras to now share with this shul. Additionally, a substantial number of these spaces have been converted into truck loading areas for NPGS, so the parking lot is actually deficient in parking.

Mr. Meyer added that the shopping center already has a long-term agreement with a nearby Yeshiva to utilize their parking lot, therefore it's not very likely that they have a sufficient number of parking spaces to now share with this shul.

Mr. Meyer presented his Professional Planner Joe Vince.

Mr. Vince testified to the Board that the Township's ordinance specifically reduces the maximum building coverage for shuls from what is permitted for houses. He stated that this suggests that the governing body was specifically concerned with the neighbors very concerns of privacy and breathing space, and accordingly, the Board should not approve the requested variances.

Mr. Vince added that the requested side yard setback variance will also be a detriment to the neighbors.

Importantly, Mr. Vince highlighted that there are c(2) variances being sought in this application, and, with respect to a (c)(2) application, the Supreme Court has stated in Kaufmann v. Planning Bd. for Warren, "no c(2) variance should be granted when merely the purposes of the owner will be advanced. The grant of approval must actually benefit the community in that it represents a better zoning alternative for the property. The focus of a c(2) case, then, will be not on the characteristics of the land that, in light of current zoning requirements, create a "hardship" on the owner warranting a relaxation of standards, but on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community."

In other words, the Board can only grant the variances upon a finding that the benefit for the community substantially outweigh any detriments. In this case, the neighboring community have clearly voiced the substantial detriments regarding the application.

Mr. Meyer closed off by saying, "the site simply doesn't fit the proposed Site Plan. The shul can buy any larger property in the area. It's unfair to throw this down the neighbors throats and tell them that if they are unhappy then they should be the ones to move."

Board Attorney John Jackson Esq. thanked Mr. Vince "for making good arguments and standing his ground despite the hostile environment."

Mr. Pfeffer told the Board that they want an approval on the specific design plan, however, they would agree that there would be no simcha hall, no Kollel or daytime learning, they would ask the congregants not to smoke near the neighbor's doors, ask the Township for no parking signs in front of the neighbors homes, install a fence around the property, and replace as many trees as they can.

Addressing the neighbors substantial concerns, the Board demanded more concessions. After deliberating considerably, the Board ultimately approved the application with the applicant agreeing to revise the plans to show a 20 foot buffer on each side, submit a parking easement agreement to the Board, somehow address the neighbors concerns regarding the smoking, and all of the conditions which Mr. Pfeffer previously agreed to.

The complaint just filed in New Jersey Superior Court in Ocean County seeks for the approval to be vacated on several jurisdictional grounds:

• Sunset Road Sefardic Congregation ("SRSC") asserted that 30 parking spaces is sufficient under Lakewood Zoning Ordinance 18-905, which provides for the parking requirements of Houses of Worship, which is based on the square footage of what is referred to in the schematics as the “Beis Medrash." This assertion is based on the assumption that the “main sanctuary” includes only the men’s section (the “Beis Medrash”) of the synagogue, and not the women’s section, which is separately labeled as the “Ezras Nashim”, and would add an additional 1,541 square feet. Moreover, this assertion is based on the assumption that the room in the rear of the sanctuary, which has opens to the sanctuary 

and will have windows that open, to hear the services from the sanctuary, should not be counted. 

Indeed, SRSC does not count the back room, which opens to the sanctuary, despite the fact that Rabbi Waddische, the Rabbi of SRSC, testified in the May 23, 2023 hearing that the space may be used by men for services. This back room, called a “Cheder Sheini” on the schematics, would add an additional 878 square feet to the calculation.

The Plaintiff, as an objector, presented testimony from Mr. Joseph Vince, a New Jersey licensed professional engineer, licensed planner and licensed land surveyor. Mr. Vince testified that by including the woman’s section and the rear room with the men’s section, SRSC would need at least 59 parking spaces.

The Planning Board erred in the interpretation of the statute, and, even counting the purported agreement regarding the Parking Lot, SRSC does not have sufficient parking spaces. The Resolution does not identify how many parking spaces SRSC would be required to be given an easement on. At the hearings, two alternative understandings of the relevant ordinance were proposed. Lakewood Zoning Ordinance 18-905 provides that parking for Houses of Worship should be based on a schedule based on the square footage of the “main sanctuary." The statute notes that the main sanctuary is “main sanctuary area shall not include secondary sanctuary space, mikvah, hallways, bathrooms, kitchen, and other ancillary and/or support rooms.”

Mr. Scott Kennel, SRSC’s expert, calculated the parking based on a “main sanctuary” that included 

only the 2,362 square foot men’s section of the sanctuary excluding the woman’s section (the “Ezras Nashim”) and the rear room, open to the “Beis Medrash” (the “cheder sheini”).

Using this calculation, Kennel concludes that the SRSC needs a total of 30 spaces, pursuant to the statute.

Mr. Joseph Vince, Plaintiff’s expert, included the 748 square foot “cheder sheini” and the 1,541 square foot woman’s section in his calculation. Vince testified that this would require SRSC to maintain at least 59 parking spaces.

The Subject Resolution is fatally deficient in that it failed to make any finding of fact or law regarding this question. It simply stated that there must be “a non-revokable easement for parking” with no identification of the amount of spaces the easement must include.

Assuming arguendo that the Resolution is intended to accept Kennel’s calculation, this is an error of law. Firstly, counting only the “men’s section” of a sanctuary is plainly discriminatory on its face. The women’s section is a large balcony on the second floor overlooking the men’s section. Not counting it as part of the “main sanctuary” is exactly the same as not counting a theater balcony when counting the seating area for the theater.

The sole justification given for not counting the woman’s section is that women allegedly do not regularly come to synagogue at times when people drive to synagogue, only on Sabbath day, when their congregants do not drive. This is a consideration that is wholly irrelevant to the Subject Resolution. The Subject Resolution requires you to look at the sanctuary space, not those that will be using the space. The woman’s section is clearly a part of the main sanctuary, as much as the balcony is a part of a theater’s seating space.

For example, if there were testimony that a House of Worship would only serve those that walk to the synagogue, that does not obviate the need for parking, or the application of the statute. The calculation is based on the space, not the testimony regarding the who will be using the space.

This is the only logical way to approach parking, as usage of a space can change. If SRSC would construct this building, then sell it to a church, the woman’s section would clearly be included. The same would be true if it became a reformed synagogue. The parking applicable to this property moves with the property, regardless of how many people regularly drive to the synagogue.

Moreover, the failure to count the “cheder sheini” is an error of law. The testimony was that the “cheder sheini” will be separated from the men’s section by a wall, with windows that open to the men’s section, such that the services could be heard from the Cheder sheini. The Cheder sheini will be used for additional woman’s seating during services and/or for additional mens seating (though not both simultaneously).

A room that is specifically designed to be used in concert with the primary sanctuary, and to provide additional seating for the services occurring in the main sanctuary, is clearly a part of the main sanctuary. To hold otherwise would invite manipulation. A House of Worship could construct 

a building with a small “main sanctuary”, perhaps smaller than 800 square feet with a large “overflow room” that opens to the main sanctuary, and is used in concert with the main sanctuary during services. By doing this, the parking requirements of the Subject Resolution can be entirely bypassed.

Whatever the “cheder sheini” is called, given that it is designed to join with the same services, it contributes to the parking burden associated with those services, and should be included in the calculation for parking. The same could be case for the Women’s section to be used by men joining in the same services as the main sanctuary and therefore must also be included in the parking calculations.

• The Subject Resolution purports to grant preliminary and final major site plan approval, as well as waiver relief. However, the Subject Resolution also expressly denied the requested bulk variance relief.

It is simply illogical and contradictory to grant site plan approval based plans that require variances, when denying the variances that those plans rely upon. The denial of the variances makes clear that SRSC must re-write their plans to ones that do not require the requested variances. Accordingly, the purported granting of site plan approval is a nullity.

• The Planning Board erred in provisionally approving the parking agreement regarding the Parking Lot, for a multiple reasons, including a lack of jurisdiction.

• The Planning Board erred in granting Site Plan approval, despite not having a signed, or even draft, Parking Agreement at the Hearing.

• The Parking Lot (shopping Plaza on James Street) is owned by 319 Sunset, LLC. They do not have the right or ability to grant a perpetual easement, granting parking spots to SRSC in perpetuity, as their mortgage already granted all rights, title and interest, including all easements and rights of way, to First Commerce Bank. Any subsequent granting of a perpetual easement regarding parking to SRSC would be invalid.

• The Planning Board does not have jurisdiction to re-allocate parking spaces that 319 Sunset is required to maintain, by order of the Zoning Board. The Zoning Board required that 319 Sunset keep at least 235 parking spaces, based on their own representations to the Zoning Board. The Planning Board does not have the authority or ability to amend that requirement, imposed by the Zoning Board.

Despite this, the Planning Board is purporting to require, as a condition of SRSC’s approval, 319 Sunset to cede, in perpetuity, their required parking spaces to SRSC.

The Planning Board cannot countenance, let alone induce 319 Sunset to violate the terms of their zoning approval.

The 5 count Complaint seeks judgment reversing the decision of the Planning Board, as set forth in the Resolution, to deny any and all variances requested by the defendants; attorney's fees; costs of suit; as well as for such other relief as the Court deems just and equitable.

The Planning Board and the shul have 35 days to answer the complaint.

Mr. Meyer has a track record of successfully getting approvals from Lakewood's land use boards reversed in court.