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Ridge Avenue neighbors, represented by The Law Office of Jan Meyer and Associates, have just received a victorious ruling from the New Jersey Appellate Division against Yeshiva Toras Chaim and the Lakewood Township Planning Board.

The appeals court affirmed Judge Ford and Judge Hodgson's rulings which tossed out the Planning Board's approval of the yeshiva's dormitory expansion.

The ruling makes it crystal clear that dormitories are permitted in Lakewood only in an Educational Campus, which requires 3 acres and is available only to schools that give graduate degrees - but not in regular residential neighborhoods.

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., appealed these decisions to the Appellate Division of the Superior Court.

Everyone agrees that the Township's ordinances do not list dormitories as permitted as a principal use or as an accessory use. However, in approving the application, the Board made a determination that dormitories are permitted accessory uses of a school.

A key point of the dispute was whether the Board had jurisdiction to determine that dormitories are permitted accessory uses of a school, despite the ordinance not saying so. After Judge Ford vacated the approval on the basis that the Board did not have this jurisdiction, a key point of the appeal was whether Judge Ford should have deferred to the Board.

The yeshiva, represented by Mr. Fiorovanti, argued that the Board made certain "factual findings" in coming to an "independent determination that dormitories are permitted accessory uses of a school," and that the Board has full jurisdiction to make such "factual findings."

As such, they asserted that the trial court applied the wrong standard by giving no deference to the Board’s finding. Under this "wrong standard," the trial court found that the Board therefore lacked jurisdiction to consider the application and vacated the approval accordingly.

"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," Mr. Fiorovanti wrote in his briefs.

However, the neighbors who were represented by Jan Meyer, argued that Judge Ford correctly looked at it as a matter of law, that "there was no way the Board read the law correctly."

Essentially, Mr. Fiorovanti argued that the Board's correct decision was a matter of fact finding, and Mr. Meyer argued that the Board’s incorrect decision was a matter of law.

Mr. Fiorovanti further argued:

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., opposed this appeal.

Their trial briefs argue:

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 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. 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.”

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...

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.

Mr. Fiorovanti also highlighted the uniqueness of the situation in that "all-boys religiously oriented institutions of higher education such as YTC operate with the use of dorms. A dormitory is essential to such school - without a dorm, YTC cannot exist."

Following oral arguments on the case, Appellate Division Judges Mayer, Enright and Augostini have just released a written decision rejecting all of the yeshiva's arguments, and affirming Judge Ford and Judge Hodgson's rulings.

"Having reviewed the record, we are satisfied the summary judgment judge properly considered the Association's jurisdiction issue as a question of law and appropriately applied a plenary standard of review. Because the jurisdiction issue was a legal question rather than a factual question, the judge did not err in declining to apply the arbitrary, capricious, and unreasonable standard of review. 

"We next consider whether the judge erred in concluding a dormitory was not an accessory use to the existing school. The Yeshiva and the Board conceded dormitories were not listed as accessory uses. 

"Here, the record failed to establish that dormitories adjacent to schools are common and usual. A dormitory is not necessarily common, customary, incidental, or obvious in relationship to a school as a primary use of a property. 

"Schools commonly exist without dormitories, even in Lakewood. 

"Under the UDO, dormitories are permissible as primary uses in a planned educational campus. UDO §18-902(H)(6)(a)(5). If Lakewood considered dormitories to be accessory uses to every primary school use in the municipality, it could have enacted an ordinance delineating such structures as permissible instead of limiting dormitories to planned educational campuses. While the Yeshiva argued "dorms go hand in hand" with schools, the converse, that schools go hand in hand with dormitories, is neither obvious, usual, nor customary.

"Regarding the impact factor, the focus is "the impact of the use on the surrounding neighborhood and the zoning plan." Tanis, 306 N.J. Super. at 606. Our case law recognizes the impact of a proposed accessory use on the surrounding area "as an appropriate factor in determining whether the use is 'so necessary or commonly to be expected that it cannot be supported that the ordinance was intended to prevent it.'" Ibid. (quoting P.T. & L, 77 N.J. at 27). 

"While there may be other religious schools in Lakewood with dormitories, it cannot be said that a dormitory housing one hundred eighty students adjacent to several single-family residential homes would have no impact on surrounding properties. Moreover, based on the testimony in the record proffered by the Association and neighboring residents, the dormitory would have a negative impact on the character of the surrounding neighborhood. Applying the commonality and impact analysis to facts in this matter, the judge correctly concluded the proposed dormitory did not constitute an accessory use and the Yeshiva's 2021 Application required a use variance," the court concluded.

Yeshiva Gedola of Brick has an application pending before the Planning Board for approval for a dormitory. The matter is on the Board’s May 14, 2024 meeting agenda. Time will tell how the Board will deal with that and future dormitory applications.

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Yisrael Berkowitz said...

It's now officially easier to get a dormitory approved in Jackson than in Lakewood.

Congratulations to the Ridge Avenue neighbors on a fight well fought. The record is very clear that the neighbors offered numerous suggestions to the yeshiva both prior to, and during their public hearing. The yeshiva administration simply waived them away.

Even Judge Ford urged the yeshiva's administration to settle with the neighbors. The yeshiva's administration refused.

Congratulations to Attorney Jan Meyer on yet another astounding victory!

Anonymous said...

To get the facts straight, YTC was a yeshiva BEFORE the ridge neighbors were there. All the neighbors knew that they will be next door to a very big yeshiva and still bought their houses. The ridge neighbors are terribly wrong and will lose the end of the day.The lakewood township can change the law in 2 seconds. Its a shame that the lakewood township doesnt just change this crazy law that you can not have a dormitory in R-15 zone. Look around lakewood there are tons of dormitories in R-15 zones!! The ridge neighbors are regular Anti Yeshiva guys.

Observer said...

This decision was fully expected, especially after the school's staff expressed total inconsideration to the neighbors' concerns and jeered at them during the public hearing at the planning board. Their bullying and intimidation tactics against the neighbors backfired. The attitude of "it's my way or the highway" got them nowhere, besides wasting good money on litigation.

It was already clear long ago, that certain board/staff members must be relieved of their official and unofficial duties if the school wants to have a good relationship with their neighbors. Arrogance and entitlement never win.

Given that the school has outgrown this location, it's probably best at this point for them to purchase a bigger property elsewhere, so they can build as much as they want without creating a nuisance to others.

Anonymous said...

Anon 10:56 is spewing blatant lies.

The neighbors were there BEFORE the yeshiva. Put another way, the yeshiva came AFTER the neighbors were there. The poster was still in diapers at that time, so he wouldn’t know.

The original owner of the lot next door to yeshiva (where they wanted the massive 4 story dormitory) was the developer Ahron Rottenberg, who lost his lot in foreclosure. When he developed the area, he advised all the neighbors that there would be a yeshiva in the area with a maximum of 180 students. He also testified under oath that there would be no more than 180 students on the site. He further stipulated that the said lot he owned at the time would never be developed as a dormitory for the school, as that would be disgusting to the neighbors.

Obviously, the yeshiva and its professionals weren't truthful in their testimony to the Planning Board and more than DOUBLED the size of their student body. They also lied about the basement in the current dorm by testifying it would be used for storage only. However, a few years later when they thought nobody was paying attention, they converted that entire floor into more dorm rooms. So, they've already earned themselves a chezkas shakran before we even begin discussing their new proposed monster dorm.

So, after failing to abide by their sworn testimony and self-creating their purported hardship, they now come crying that they don’t have enough room.

So again, the neighbors had no major issues with the current structure because that’s what was agreed to. (This does not include the boys parking their cars all over the neighborhood and taking away needed spots from the people living there, even though the yeshiva has an “official” rule prohibiting cars. Nor does it include the loud ruckus and kumzitzen the boys regularly make at 2 and 3 in the morning waking up the neighbors and small children. Nor does it include the cigarette butts and other trash left by the boys in the neighbors’ front and backyards. That’s a different parsha.)

However, now that the self-entitled board and family members decided, without any regard to the neighbors, that they want to massively expand and cause severe nizkei shcheinim, the shcheinim were left with no choice but to protect their privacy and quality of life from being utterly destroyed.

The other yeshivos with dorms probably started out acting like mentchen to the neighbors. They built much smaller sized dormitories and took other neighborhood concerns into honest consideration. Bullying and calling the code inspectors on the neighbors – especially on trumped up charges – is a recipe for disaster.

It's also terribly offensive for the yeshiva staff to pull out the old “anti-yeshiva” card. That’s an example of another blatant lie. The neighbors are fine machzikei torah who’ve attended yeshivos themselves and send all their children to good yeshivos. The people running this particular school are acting like real jerks by trying to besmirch the good reputation of the neighbors – all in order to get their way in the name of “torah.” The problem is that hilchos nizkei shcheinim applies even more when it’s a hezeika d’rabim. Their aggressive behavior has so far been nothing short of repulsive and a chillul hashem. It’s farshtunkene gaiva!

Lo zu darkah shel torah!!

Anonymous said...

On the other side of town, a "kollel" is trying the same tactic of besmirching the neighbors. Hopefully they too will fail.

But expect Lakewood township to amend the rules. They did this for Lake Terrace and the Hotel project. This town is always about who you know.

Anonymous said...

The way it rolls in Lakewood is as follows:
We as a school or shul have a right to trample all over the neighbors and if they object they are ANTI-TORAH.
It is disgusting to watch.
Moreover over the board members are told by these same people, vote yes or your kids do not get into school...

Anonymous said...

Why does this school insist on staying in Lakewood no matter how much they outgrow their space just to fight with their neighbors?

There's a big world with lots of space and bigger buffers for the residential homes in the surrounding towns.

Anonymous said...

Anon 1:03,

They'd be crazy to amend the rules just because of this one school! All hell will break loose if they allow powerful roshei mosdos to build massive dormitories right next door to regular homes.

I don't want dozens or even hundreds of boys roaming at all hours of the day & night right next to my house - and neither does anyone else I know. There's a proper place for everything. Just like gas stations and supermarkets. These yeshivos readily admit that they have zero power to enforce the rules on their bachurim.

Our town should not be allowed to become a literal hefkervelt where anything goes. It's bad enough as it is. That's why we there are zoning rules in the first place.

The system has worked fine until now. Just because this one school decided to act greedy to their neighbors and jerk them around doesn't mean that everyone else must suffer.

Plus, there's still the available option to apply to the zoning board for a use variance to build a dorm. In fact, I don't understand why this school hasn't applied to Zoning instead of trying to force this dorm down the throat of the neighbors??

Anonymous said...

The oilam should get to gether and make a dorm next to Coles, Meir Lictenstein and askan Mensahe Miller I am sure they would have no problem.

Anonymous said...

the guy with the longwinded comment admits that the neighbors knew that a yeshiva was planned for there before they moved in. in other words, the yeshiva (on paper) was there before the neighbors.
he also refers to a dorm of bnei torah as "disgusting" and then claims not to be anti-yeshiva. sure, keep convincing yourself.
other comments also make clear that the neighbors problem is having yeshiva bochurim near them. such as the lady who doesn't want "boys" (in other words, bnei torah) "roaming" near her house.
at least be honest with yourself. it is clear what your real motives are.