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TRIAL HELD TODAY ON LAWSUIT WHICH SEEKS TO OVERTURN LAKEWOOD TOWNSHIP'S "BANQUET HALLS IN SCHOOLS" ORDINANCE




Ocean County Superior Court Assignment Judge Francis Hodgson today held a trial on a lawsuit which seeks to overturn Lakewood Township's ordinance permitting banquet halls in schools.


A written decision will be released in the coming weeks.


The saga began when, as the news was first broken here on FAA News, just before Rosh Hashonah 5783, Judge Ford shut down Bnos Brocha's banquet hall on the legal basis that the Township's ordinances did not permit banquet halls in schools and Bnos Brocha never received a Use Variance from the Township's Zoning Board for the banquet hall.


In response, as previously reported here on FAA News, back in December 2022, Lakewood's Township Committee adopted an Ordinance legalizing banquet halls in schools.


Therefore, as previously reported here on FAA News back in January 2023, 1650 Corporate Road West LLC, an industrial park property owner and a party to lawsuits filed against Lake Terrace and Bnos Brocha which allege that they were operating banquet halls without Township approval, represented by Attorney Rob Shea Esq., filed a lawsuit seeking to overturn the new ordinance.


The First Count of the lawsuit alleges that the Committee meetings which were held virtually, were in violation of the New Jersey Open Public Meetings Act.


The Second Count of the lawsuit alleges that Deputy Mayor Menashe Miller was prohibited from voting on the Ordinance because 1) he has sons who currently do, or recently did, attend Yeshiva Toras Ahron which has a banquet hall and would benefit from adoption of this ordinance, and 2) his mother holds "a significant position within the administration of Beis Faiga's girls school which operates one of the oldest banquet halls in Lakewood as well as a boys school within the industrial park, both of which could benefit from adoption of the ordinance."


The Third Count of the lawsuit alleges that because Deputy Mayor Miller was prohibited from voting, his vote was "tainted," and without his vote there would not have been sufficient votes to affirm the ordinance, therefore the Ordinance should be overturned.


The Fourth Count of the lawsuit alleges that the public notice for the second Committee meeting was insufficient due to the substantial changes to the Ordinance between first and second reading. "Following the Planning Board's review, the ordinance was substantially changed, yet at no time prior to adoption of the ordinance on second reading was the public noticed regarding the changes."


The Fifth Count of the lawsuit alleges that the Committee failed to notify the Ocean County Planning Board 10 days prior to adoption of the ordinance as required by State Statute.


The Sixth Count of the lawsuit alleges that the Committee failed to provide personal notice to all affected property owners prior to adoption of the Ordinance, which is a requirement for all "substantial changes" to zoning ordinances.


The Seventh Count of the lawsuit alleges that restraining Mr. Shea and Mr. Gemma from speaking longer than 4 minutes, especially regarding such a major issue, was "arbitrary, capricious, and unreasonable."


The lawsuit specifically calls out Township Manager Patrick Donnelly for muting Mr. Shea's mic "without any prompting from the Committee."


The Eighth Count of the lawsuit alleges that the Planning Board violated the Open Public Meetings Act by failing to give the public adequate notice of the Ordinance which they were going to review. The agenda simply stated "ordinance for review," without actually listing the Ordinance by title, number or summary.


The Ninth Count of the lawsuit alleges that the Planning Board simply made changes to the proposed parking requirements, but failed to properly conduct a consistency review of the Master Plan as they are required to do when they review proposed ordinances. They also failed to adopt a Resolution memorializing their own vote or findings, as well as to submit a report to the Committee.


The Tenth Count of the lawsuit alleges that Planning Board Attorney John Jackson's email to the Committee listing the Board's recommendations, did not constitute a "report" (of the Ordinance) which the Planning Board is required to submit to the Committee, nor did the Planning Board even bother to pass a Resolution adopting Mr. Jackson's email as their report.


The lawsuit also notes that this "report" was not actually read into the record at the second Committee meeting, nor was it made available for public review.


Furthermore, this report inaccurately stated that the Planning Board recommended grandfathering in currently operating banquet halls, which in fact the Board specifically stated they did not want to incorporate.


"This provision is at odds with Mayor Coles' on the record representation to the public at the First Reading that the ordinance "is for future applications. This provision is at odds with Mayor Coles' on the record representation to the public at the Second Reading that an existing school's ability to operate an existing banquet hall "would depend on whether or not they've been to the Planning Board already to get that approval as an accessory use.


"Jackson's email also stated that banquet halls should be specifically permitted in the Industrial Park. At no time did any of the Planning Board members state that banquet halls should be specifically permitted in the Industrial Park. Jackson did not read this provision to the Board, nor was it voted on. His comment had no basis in anything the Board stated and further had no bearing whatsoever on the Ordinance as presented," the lawsuit alleges.


The Tenth Count (b) of the lawsuit alleges that it can be "inferred that the Ordinance was inconsistent with the Master Plan," and therefore, if Mr. Jackson's email did constitute a "report," the Committee failed to address any inconsistency between the Ordinance and the Master Plan and publish a Resolution containing the reasons for the deviation from the Master Plan, as required by State Statute.


The Eleventh Count of the lawsuit alleges that the Planning Board's reliance on Administrator Ally Morris' report was "arbitrary, capricious, and unreasonable."


In response to Mr. Gemma presenting his expert report showing that the Ordinance was inconsistent with the Master Plan, Mr. Jackson quickly suggested that Board Engineer Dave Magnos review the ordinance and provide his own expert report. "This was never done. Rather than seeking an expert analysis from its own professionals, the Board instead relied on a report prepared by Morris, who has neither a planner nor an engineer. Morris admitted she did not rely on any expert interpretation or legal authority, but rather, on 'personal experience.' Morris' report set forth that in her personal opinion, banquet halls are an accessory use to a school. Morris is not qualified to make this determination. Since Morris has no expertise in the area of planning, the Board's reliance on her report over Gemma's is 'arbitrary, capricious, and unreasonable.'"


The Twelfth Count of the lawsuit alleges that Township Attorney Steven Secare "tainted the record" at the Second Reading.


"At the Second Reading, Donnelly muted Plaintiff's Counsel in middle of his presentation of Plaintiff's objection. In response to this, Secare advised the Committee that they did not need to allow Plaintiff's counsel to present their full objection since "he is going to sue us anyway.


"Secare vastly overstepped his role as Township Attorney, and in fact took an active position to quash the right's of the public's right to object and be heard. Moreover, he emboldened the Committee to disregard Plaintiff's objection. Most disturbingly, Secare poisoned the Committee against the Plaintiff's position by speculating as to the threat of a lawsuit against the Committee," the suit contends.


The Thirteenth Count of the lawsuit alleges that the Committee failed to review a Planning Board report as required by State Statute.


"At the Second Reading, Mayor Coles specifically references a report from the Planning Board which contains comments regarding the Ordinance. The Committee relied upon this report. The Committee selectively adopted some, but not all of the alleged report's recommendations. At no time prior was the public made aware of the alleged report. At no time was the public permitted to review the alleged report.


"Plaintiff later learned that the alleged 'report' was not actually a 'report' but rather an email from Mr. Jackson's which inaccurately summarized the Board's findings. Same was never reviewed or officially adopted by the Board," the suit charges.


The Fourteenth Count of the lawsuit alleges that the Amended Ordinance is not consistent with the Master Plan and "is not drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses," as required by State Statute.


The Amended Ordinance applies to all non commercial zones.


The New Jersey Municipal Land Use Law requires that a zoning ordinance or amendment thereof "be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan element." It further requires "the zoning ordinance shall be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land..."


"The Amended Ordinance impacts the industrial zone where Plaintiff's property is located. Public commentary was provided at the First Reading expressly stating that the industrial park should be excluded from the Ordinance's effects. Gemma provided testimony to the Planning Board and the Committee that the Amended Ordinance fails to consider the character of each zone.


"The industrial park is populated with industrial uses. There has been a history of litigation as a result of the existing unapproved banquet halls disrupting the operations of multiple industrial properties. Commercial trucks have great difficulty accessing industrial properties and traversing the overcrowded streets as a result of banquet hall activities. Banquet hall patrons regularly trespass onto industrial properties and park in their lots.


"The Amended Ordinance contains no buffer, lighting, or setback requirements, nor does it contain any requirements at all, aside from its minimal parking requirement. Under the Amended Ordinance, a banquet hall would be able to operate a mere 10 feet from an industrial building. The traffic and trespass issues created by banquet halls within the industrial park will be exacerbated by the Amended Ordinance," the lawsuit contends.


The Fifteenth Count alleges that the ambiguous language of the Amended Ordinance effectively creates a Conditional Use ordinance.


"The Amended Ordinance makes banquet halls into an 'accessory use' in schools. As the parking requirements are a 'specific condition' to the accessory use of a banquet hall in a school, the effect of the ordinance is to create a permitted use with conditions which constitutes a 'conditional use.'"


The New Jersey Municipal Land Use Law requires Conditional Uses to "definite specifications and standards which shall  be clearly set forth with sufficient certainty and definiteness to enable the  developer to know their limit and extent."


The Amended Ordinance reads:


For the section of the school utilized for catering and banquet functions (to be known as the Banquet Hall space, but not including bathrooms, food prep rooms, and facilities not associated with the Banquet Hall function, such as guest preparation rooms, etc.) 1.0 parking space shall be required for every 50 square feet thereof.


"The Amended Ordinance contains a non-exhaustive list of areas which do not count toward the parking calculation, ending with the word 'etc.' The Amended Ordinance does not state whether said parking requirement is in addition to that required for the school itself, or if the school spaces can be counted for purposes of meeting the parking condition for a banquet hall. Due to the use of the word 'etc,' the Amended Ordinance is ambiguous on its face, and fails to set forth 'definite specifications and standards' as required by the Municipal Land Use Law," the suit concludes.


As reported here on FAA News, in July 2023, Judge Hodgson granted Mr. Shea's Motion to Amend the Complaint, to add two additional counts.


The additional counts involve violations of the New Jersey Open Public Meetings Act (OPMA) on the part of the Township Committee and Planning Board, resulting in the lack of jurisdiction for either party to have held any of the meetings at which the Ordinance was discussed and adopted.


Count Sixteen argues that the Planning Board failed to Reorganize for the 2022 term and had no authority to conduct the November 15 and November 29, 2022 hearings.


Count seventeen argues that the Committee violated the Open Public Meetings Act, thus rendering the October 20, 2022 and December 8, 2022 hearings ultra vires.


NJSA 10:4-18 mandates that a public body must publish an annual notice of all public meetings for the coming year in two official newspapers with 7 days of their annual re-organization meeting.


Under NJSA 10:4-8, all meetings which are not contained within the annual notice must be noticed as special meetings, with said notices published in two official newspapers at least 48 hours prior to the meeting.


The Committee held their 2022 re-organization on January 3, 2022.


The resulting annual notice was published only in the Star Ledger on January 5, 2022.


Neither the October 20, 2022 meeting nor the December 8, 2022 meeting were noticed as special meetings.


As such the Committee had no authority to take any action at either meeting.


As recently reported here on FAA News, the Township's taxpayers have already forked up over $240,000 for the Township's legal fees in defending Lake Terrace and the banquet hall ordinance.


Judge Hodgson today held a trial on the lawsuit.


A written decision will be released in the coming weeks.


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