The New Jersey Appellate Division is set this coming Tuesday to hear oral arguments from Yeshiva Toras Chaim, represented by Attorney Matthew Fiorovanti Esq., on their appeal which seeks to overturn Judge Ford and Judge Hodgson's rulings which tossed out the Lakewood Township Planning Board's approval of the yeshiva's dormitory expansion.
The Lakewood Township Planning Board's Attorneys are concurring with the Yeshiva's appeal.
The Ridge Avenue neighbors, represented by Attorneys Jan Meyer and Jonathan Leitman Esq., are opposing this appeal. They are asking for Judge Ford and Judge Hodgson's rulings to be affirmed.
As previously reported here on FAA News, back in January 2023, former Ocean County Superior Court Judge Marlene Ford tossed out the Planning Board's approval of the yeshiva's dormitory expansion on the basis that the Lakewood Township Committee has not deemed dormitories to be a permitted use in the residential zoning district, therefore the Board lacked jurisdiction to approve the non-permitted use.
As previously reported here on FAA News, back in March 2023, new Ocean County Superior Court Assignment Judge Francis Hodgson denied Yeshiva Toras Chaim's Motion for Reconsideration, concluding that "a Motion for Reconsideration is appropriate only when the Court erred in its decision or misapplied the correct standard of review, and not simply when the losing party is dissatisfied with the court's ruling."
The yeshiva, represented by Attorney Matthew Fiorovanti Esq., is appealing these decisions to the Appellate Division of the Superior Court.
Mr. Fiorovanti wrote:
In finding that a dormitory is not a permitted accessory use of a school in the Township, the trial court erroneously substituted its own judgment for that of the Board regarding the customary relationship between dormitories and schools such as YTC in the Township.
The Board’s determination that dormitories are, in fact, customarily incidental and subordinate to schools such as YTC, which is both a high school as well as an accredited institution for higher learning, was entitled to substantial deference by the trial court in light of the Board’s unique knowledge of local conditions and could only be reversed if arbitrary, capricious or unreasonable. The Board knows more than the trial court about how all-boys religiously oriented institutions of higher education such as YTC operate with the use of dorms. The Board knows that a dormitory is essential to such school—without a dorm, YTC cannot exist. The Board knows that students study nearly through the night and require a dormitory as an essential component of the school. Yet the trial court refused to defer to the Board’s findings and instead independently concluded that dorms are not a permitted accessory use of schools in the Township....
In addition, the trial court improperly inferred that because the Township specifically allowed for dormitories as a principal permitted use in connection with a planned educational campus in the R-M zone but did not specifically authorize dormitories in the R-15 zone, the Township must have intended to prohibit dorms in the R-15 zone. The trial court’s independent “accessory use” analysis was contrary to well-settled New Jersey.
By applying the incorrect standard of review and erroneously applying the “accessory use” test under New Jersey, the trial court has upended a well- established custom in the Township. For decades, dozens of schools such as YTC have utilized dormitories as a customary and incidental—and indeed necessary—use. This undeniable fact was expressly acknowledged by the Board and formed the basis of the Board’s conclusion that a dormitory is an accessory use to a school. Indeed, YTC and similarly situated schools in the Township cannot exist with a dormitory. The trial court’s entry of summary judgment in favor of Plaintiff, and its refusal to reconsider such orders, should be reversed by the Appellate Division.
Planning Board Attorneys John Jackson and Jillian McLeer Esq. filed a Trial Brief concurring with Yeshiva Toras Chaim’s legal arguments, and requesting that the Appellate Division reverse Judge Ford and Judge Hodgson's rulings.
The Ridge Avenue neighbors, represented by Attorneys Jan Meyer and Jonathan Leitman Esq., are opposing this appeal. They are asking for Judge Ford and Judge Hodgson's rulings to be affirmed.
Their trial briefs argue:
Judge Ford applied the correct standard in reviewing the Board’s determination, ultimately finding that a dormitory building was not an “accessory use” to the permitted use of constructing a school in this zoning district, and would require a Use Variance to permit the construction of such dormitory.
Specifically, Judge Ford found that the fact that the Lakewood Unified Development Ordinance (“UDO”) explicitly provides for student dormitories as a primary use in other zones expresses the legislature’s intention that they be treated as primary uses and not as accessory uses. Further, Judge Ford found that the extremely intensive and obtrusive proposed use of the property precluded a finding that it was a proper accessory use.
Judge Ford correctly determined that there were no questions of material fact that a student dormitory is not an accessory use to the permitted use of a “school” in an R-15 zone in the Township of Lakewood.
Judge Ford stated that it is “clear to the Court” that this is a second primary use on the lot and “not an accessory use even under an expansive definition.” In other word, Judge Ford found the Board's approval to be unreasonable, as there was no way to interpret the statute in a reasonable manner in which it comports with the decision of the Board.
A substantial portion of Judge Ford’s reasoning involved the fact that the Lakewood UDO explicitly treats student dormitories as a primary use in certain zones implies that they did not intend for them to be treated as accessory in other zones. This is purely a matter of statutory analysis and interpretation.
Judge Ford engaged in this analysis, looking at the five explicit accessory uses in an R-15 zone, the UDO’s definition of accessory use, and the Planned Educational Campus's categorization of student dormitories as a primary use on Planned Educational Campus zones. In interpreting these statutes, Judge Ford determined that the fact that the legislature, in the context of a Planned Educational Campus, specifically provided for Student Dormitories as a primary use meant that they did not intend for them to be included in the catchall accessory use provision.
This analysis is purely legal, and there is no reason that Judge Ford should have had to defer to the Planning Board on this matter.
Moreover, there was never any testimony or determination by the Board as to the intensity of the purported use and/or its effect on the neighborhood. A substantial portion of Judge Ford’s decision was her determination that the multi-story dormitory intended for use by over 180 teenagers was too intense for an R-15 zone, without a use variance. The impact of a purported accessory use on the zoning plan and on the neighbors is a factor as to whether the use can qualify as “customary." Tanis v. Twp. of Hampton. As no findings were made by the Board as to the impact of the large dormitory in the residential zone, the Board cannot be deferred to on this matter...
Accordingly, there is no deferential standard due to the Board’s decision, as Judge Ford’s decision is based on 1) statutory analysis and 2) matters which the Board did not opine on and, indeed, that are patently obvious to not be present. There is no way that the Appellants can make a reasoned argument that the dormitory is not an extremely intensive use that would have a disproportionate impact on the local R-15 zone and the residents therein. This is why Judge Ford used language indicating, essentially, that the standard of review is immaterial, and the decision would be the same, even under an abuse of discretion standard....
The Lakewood UDO identifies five permissible accessory uses in an R-15 zone: a) residential private garages, b) sheds, c) greenhouses, d) private swimming pools, and e) home occupations. The UDO also includes a general definition for accessory use - “a use, structure or building that is customarily incidental and subordinate to that of the principal and on the same lot.” In addition, the UDO provides that student dormitories are a primary use on Planned Educational Campus zones.
Judge Ford found that in interpreting the UDO, the fact that student dormitories are a primary use in some zones, this expresses the legislatures intention that they be treated as primary uses, and not accessory ones. “I am persuaded by a couple of issues. One is that Lakewood Township has provided for dormitories to be a second primary use within an educational campus, and they provided an ordinance for that to address those standards… Where the Ordinance addresses [dormitories] it addresses that… a dormitory would be a second primary use within an educational campus.”
Somehow, the Yeshiva seeks to misconstrue this point, in which Judge Ford adduces that the legislature specifically expressed an intention to not treat dormitories as accessory uses, into meaning that Judge Ford ruled that nothing but the five permitted accessory uses can qualify as an accessory use. This is simply not the case...
What Judge Ford adduced from the UDO explicitly providing for dormitories in other zones is that this is not an “unforeseen use," rather, this is a foreseen use, which the legislature decided to allow in certain zones, but not in others.
Rather than address this argument, the Yeshiva, in a single sentence, without any citation, simply hand waves it away, simply stating that the inclusion of dormitories as a principle use is “irrelevant” to whether a dormitory is an implied accessory use for a school. Notably, the Yeshiva does not even present any logical reason as to why a legislative declaration that a particular use is a primary use in certain zones is “irrelevant." Nor do they cite to any case law standing for this essential proposition. Instead, the Yeshiva simply cites to case law establishing that there is such a thing as an implied accessory use, then says the statutory determination as to dormitories in other zones is irrelevant. There is no logical connection from one to the other - let alone any case law to support the position claimed.
Judge Ford made clear that the intensive nature of the proposed use - a multi story residence hall, sufficiently large to house 180 teenagers - was a substantial factor in her decision.
This concern of the intensive nature of the use is not one that was made up by Judge Ford. It is found throughout the case law regarding accessory use in the state of New Jersey. For an accessory use to qualify as “incidental”, as required, it must be “minor in significance.”
The Tanis Court found that “a use which impairs the municipality's land use plan or interferes with the neighbors' use and enjoyment of their properties would not be one the governing body intended to permit.” This is clearly what Judge Ford is referring to in extensively relying on the intensity of the use in ruling that a dormitory cannot be an accessory use in an R-15 zone. Having 180 teenagers next door, in a zone that is intended for single family homes, dramatically changes the character of the neighborhood and affects the neighbor’s use and enjoyment of their property.
Despite Judge Ford’s heavy reliance on the intensity of the proposed use, the Yeshiva barely addresses this matter at all.
The Yeshiva presents purported arguments that the details of their operations, such as the intensive nature of the course of study, should for some reason have some bearing on this matter. They assert this without any citation to any case that stands for the proposition that whether something is an accessory use is based on the particularized need for such accommodation by the applicant. On the contrary- the case law is clear that this is not a consideration.
The question is one of, essentially, statutory interpretation. When the UDO provides that “schools” are a permitted use in an R-15 zone, does that necessarily imply that student dormitories are necessarily permitted as well?
This question has nothing to do with the operations of a particular applicant, it is about the definition of a word, and how it is interpreted by people. The Yeshiva further argues that their status as a degree granting institution somehow further indicates that they are entitled to treat dormitories as an accessory use. Firstly, this is wholly irrelevant, for the reasons set forth above. The question is about “schools," not about the nature of this particular school. If they were a ski school, they would not be entitled to construct a ski lift, even if ski lifts are clearly accessory for ski schools. The statute provides for “schools," not a particular type of school. What constitutes an accessory use to “schools” generally is what governs, not what is a requirement for this particular school, or any particular category of school.
Moreover, though, the matter of the status of YTC as a degree granting institution is not properly before the Court. The facts underlying this claim were not raised at the Subject Hearing, nor were they raised in the initial motion for summary judgment.
The Appellate Division will hear oral arguments this coming Tuesday. A ruling will later be released in writing.
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Who is paying the yeshivas legal bills
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