A lawsuit seeking to vacate an approval for a child care center on Bennetts Mills Road at Johnson Lane may continue, a judge has just ruled.
Back in 2022, Bennett Mills Realty, LLC, which is owned by Michael Schwimmer, submitted plans to Jackson Township’s Planning Board for a massive Daycare and Medical Center. The child care center was to have a capacity of 450 children, and to imclude an after-school program which would keep the building in use from 7:45am to 5:00pm.
The proposal faced immediate backlash from many neighbors who argued that this is a "very residential area" and a child care center this size, especially with drop offs so early in the morning, would bring extra noise and traffic to the area.
As previously reported here on FAA News, at the first public hearing on the application, the developer agreed to eliminate the medical center.
Numerous neighbors still objected to the proposal.
Some frum neighbors suggested to the Board that they clarify the scope of the intended use and hours of use of the building, noting that our child care centers tend to be used "in many different ways over many different hours including off school hours."
The neighbors implored the applicant to consider selling the property so it could instead be preserved for open space.
As previously reported here on FAA News, in September 2023, the Board ultimately approved a scaled down plan for a 160 children capacity child care center.
A major contention at this public earing was regarding a proposed driveway on Johnson Lane. Johnson Lane is approximately 12 feet wide and only the first few feet is paved. After that, Johnson Lane is a dirt road with many potholes, mudholes, and sinkholes.
Board Engineer Erni Peters told the Board that a portion of the gravel road encroaches onto the adjacent property. He recommended that if any improvements are anticipated for Johnson Lane, at a minimum, the gravel roadway should be realigned to be within the right-of-way.
Board member Dr. Campbell agreed, stating “I’m concerned about Johnson Lane… It is a very narrow gravel lane. It really cannot handle any traffic [referring to non-emergency traffic]… That lane is a country lane, narrow, gravel.”
In response, Engineer Graham MacFarlane stated that they were seeking a design waiver from improving Johnson Lane.
Nachman and Toby Landynski are the owners of the adjacent property.
Mrs. Landynski told the Board that “the road does run through my lot… That is something that has to be clarified. I paid property taxes on it and in general, I paid a lot of money per square foot so that is a problem… The road must be worked out. If it is part of my lot its part of my lot.”
Chairman Tzvi Herman responded, “they did testify that there will be no traffic on Johnson Lane… Johnson Lane is not going to be utilized for this application besides, hopefully never, but we have to have emergency vehicles on site.” To which Mrs. Landynski responded “I am trying to understand how that can be used when it’s on my property?”
Chairman Herman did not have an answer to that question. The room was silent for a beat before the town attorney responded vaguely “I think that was the answer you got from Mr. Ray [the applicant’s traffic expert], about the traffic.” This answer was wholly insufficient and did not address Mrs. Landynski point, so she persisted, “the emergency road, hopefully no parents officially at least will be using it. Right?”
Before she could even complete her thought, Chairman Herman interjected by saying that it’s gated off. He said it’s a lane used for fire trucks or ambulances and will be locked off and only be used for first responders. Mrs. Landynski then continued her thought, saying, “so I’m just asking – it runs through my property!” Mr. Alfieri, the applicant's attorney then interjected that “all of our improvements are on our property. If we encroach on your property, we are not allowed to without your permission.”
Mr. Macfarlane added, “Johnson Lane is what we would consider an unimproved municipal street… The difficulty for us because of the existing geometry would be designing that intersection in accordance with municipal requirements is definitely going to require some right of way from adjoining property. If my client cannot obtain that right of way through negotiation with that owner, the county would have to step in and help in those proceedings.”
Board Planner Douglas Klee also urged the Board to require the developer to pave Johnson Lane in its proper location.
Mr. Klee stated, “right now the plan is showing that the gravel portion Johnson Lane goes out of the right of way onto the adjacent property. Can we get a stipulation that we can at least put the road in the right of way?”
The room went silent for a beat.
Mr. Alfieri finally responded “we are not improving – it is not our road so we are not doing it.”
Mr. Klee again urged, “you are not willing to put the Johnson Lane improvements in the existing right of way? Right now it is on someone else’s property.”
Mr. Macfarlane responded “I don’t believe it’s the Applicants responsibility to move the existing Johnson Lane to within a right of way. The Board certainly has the authority to require improvements to Johnson Lane that they see fit.”
Mr. Alfieri then disclosed the crux of the issue saying, “the problem is anything we do to touch that road triggers Ocean County Planning Board potential road improvements to their standards which I think everyone wanted that to remain... low traffic use. And you don’t want to improve it to encourage anything more than that.”
Ultimately, the Board granted the approval of the application, with a design waiver from improving Johnson Lane. The Board did stipulate that the proposed access to Johnson Lane be gated and permitted for emergency vehicles only.
Following this aproval, the Landynski's retained Attorney Nisan Zaghi Esq. of Brooklyn-based Zaghi Law Group, PLLC and Attorney Avrohom Yankelewitz Esq. of Rockland/Toms River-based Yankelewitzlaw to seek vacatur of this approval.
On January 29, 2024, Zaghi and Yankelewitz filed a 12-count complaint in New Jersey Superior Court in Ocean County seeking vacatur of the approval.
The lawsuit highlights the following:
• The Board Planner explicitly disclosed a fatal issue with the plan – that the emergency access road undeniably encroaches onto the Landynski's property line.
• At no point during the public hearings did the Planning Board or the Applicant address, challenge, or dispute Mrs. Landynski's assertion that Johnson Lane, and by extension the proposed emergency access lane, runs through her property line.
• Mr. Alfieri did not address Mrs. Landynski's assertion at all.
• In fact, Mr. Macfarlane responded “I don’t believe it’s the Applicants responsibility to move the existing Johnson Lane to within a right of way” - implicitly conceding that the existing Johnson Lane is in fact on the Landynski's property.
• Moreover, Mr. Alfieri disclosed the crux of the issue, which was simply that the Applicant did not want to “trigger Ocean County Planning Board potential road improvements to their standards." This is the entire reason for the Jackson Planning Board to approve a plan which encroaches on the Landynski's property!
"By approving the site plan, the Planning Board condemned Plaintiff’s property without just compensation. Further, the Applicant would be committing a trespass onto Plaintiff’s property any time the emergency access road would be used on Applicant’s behalf.
"Instead of requiring Applicant to negotiate a right of way with Plaintiffs, the Planning Board arbitrarily, capriciously, and unreasonably approved Applicant’s site plan without requiring any improvements to the intersection. Essentially, the Planning Board approved Applicant’s unjust and illegal condemnation of Plaintiffs property.
"Because the Johnson Lane roadway is not within the right of way and instead is on Plaintiff’s property, Plaintiffs would be well within their rights to erect a stone wall blocking off the entrance of Johnson Lane. Thus, the proposed emergency access lane is merely illusory.
"To the extent that the Planning Board approved the Resolution with the emergency access lane encroaching on Plaintiff’s property line, that decision was arbitrary, capricious, and unreasonable. That decision also violates the New Jersey State Constitution and the United States Federal Constitution," the complaint alleges.
The suit presents 12 counts as to why the approval must be vacated:
1) In granting the Application, the Planning Board palpably abused their discretionary authority, in that the action takes was in all regards not based upon the facts in evidence. Moreover, the Planning Board palpably abused their discretionary authority by approving Johnson Lane as an emergency access road.
As a result of the actions of the Planning Board, the Plaintiffs have been adversely affected and the Plaintiffs have suffered manifest injustice by the Planning Board’s arbitrary, capricious and unreasonable application of their planning use powers.
2) The use of Johnson Lane as a travel lane which encroaches on Plaintiff’s property constitutes a condemnation of Plaintiff’s property requiring the Town to pay just compensation to Plaintiffs under New Jersey state Law.
3) The use of Johnson Lane as a travel lane which encroaches on Plaintiff’s property constitutes a condemnation of Plaintiff’s property requiring the Town to pay just compensation to Plaintiffs under United States Federal Law.
4) The use of Johnson Lane as a travel lane constitutes an inverse condemnation requiring the Town to pay just compensation to Plaintiffs under New Jersey Law.
5) The use of Johnson Lane as a travel lane constitutes an inverse condemnation requiring the Town to pay just compensation to Plaintiffs under United States Federal Law.
6) Approval of Johnson Lane by the Planning Board as an emergency access road constitutes a condemnation and an inverse condemnation requiring the Town and the Planning Board to pay just compensation to Plaintiffs under New Jersey Law.
7) Approval of Johnson Lane by the Planning Board as an emergency access road constitutes a condemnation and an inverse condemnation requiring the Town and the Planning Board to pay just compensation to Plaintiffs under United States Federal Law.
8) It is undisputed that the entrance of the Johnson Lane travel-way is currently on Plaintiff’s property. As such, use of Johnson Lane by the Town or Applicant constitutes a trespass of Plaintiff’s property.
9) It is undisputed that the entrance of the Johnson Lane travel-way is currently on Plaintiff’s property. As such, use of Johnson Lane by the Town or Applicant constitutes a continuing trespass of Plaintiff’s property.
10) It is undisputed that the Johnson Lane travel-way is not within the right-of-way, but instead encroaches on Plaintiffs property. As such, the Town is obligated to realign the travel-way to be within the right-of-way.
11) The Planning Board wrongly made ad hoc changes to the published plans which were to be voted upon. The public had no opportunity to understand or consider the changes made to the plans.
12) The Planning Board did not require any improvements to Johnson Lane as a condition of its approval despite the plethora of testimony about its dilapidated state.
As a result of the actions of the Planning Board, the Plaintiffs have been adversely affected and the Plaintiffs have suffered manifest injustice created by the Planning Board’s arbitrary, capricious and unreasonable application of their planning use powers.
Following initiation of this lawsuit, the developer retained Attorney Donna Jennings Esq.
Ms. Jennings immediately filed a motion to dismiss the entire complaint, arguing that the Board was well within their rights to ignore their professionals' expert opinions, and that there was no unjust taking or trespass.
Judge Francis Hodgson was not phased.
Following oral arguments held on Friday morning, at the mutual consent of the parties, Judge Hodgson dismissed only the condemnation counts as to the developer only (as a private citizen can't be sued for condemnation). All the counts as to the Board remain intact.
The litigation will now continue, unless the developer agrees to settle with the neighbors.
Prior to filing their lawsuit, the Plaintiffs attorneys reached out to the developer and the planning board in an attempt to resolve the dispute without going to court. That overture was ignored. The Plaintiffs then sent a Hazmana to the developer which was also ignored. The Plaintiffs were thus forced to file their lawsuit.
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