JUDGE RULES LAKEWOOD PLANNING BOARD DID NOT VIOLATE YEHUDA DACHS'S CIVIL RIGHTS IN DENYING HIS MAJOR APPLICATION ON JAMES & CROSS

A judge has just tossed out Yehuda Dachs's claims that the members of the Lakewood Township Planning Board violated the New Jersey Civil Rights Act when they determined they lack jurisdiction to hear his application for a brand new residential development at the 17.5 acre parcel on the northeast corner of Cross Street and James Street with 125 duplex homes plus basement apartments.

Application SD 2511, filed under the name Yeshiva Chemdas Hatorah (but owned by Mr. Dachs) sought approval to build a residential development with 125 duplex homes plus basement apartments at the 17.5 acre parcel on the northeast corner of Cross Street and James Street.

That is 250 families, and approximately 500 cars.

This zoning district does not permit duplexes. However, this particular application for duplexes was not seeking a Use Variance from the Zoning Board. As previously explained in a full background story here on FAA News, this is because the developer was demanding that he can rely on a loophole ordinance the Township Committee adopted in 2018 which states:

"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."

Back in March 2018, shortly before this ordinance was adopted, the developers of Yeshiva Chemdas Hatorah filed Application SP 2291 to the Planning Board for an Educational Campus at this site.

This application was never actually presented to the Board at a public hearing, rather it was simply filed with the Board's administrative staff.

The developer was now attempting to rely on this Educational Campus "submission" as the basis to now be permitted to apply for these 125 duplexes on 10,000 sq foot lots (which are permitted in the R7.5 zoning district) as a by-right application.

At their public hearing on the application, held in December 2022, the Planning Board delved into the 2018 Educational Campus application submission to determine whether or not it was indeed a "complete application was filed."

Board Attorney John Jackson Esq. noted that in August 2018 the Board Engineer provided a written review letter of the application and noted certain items which needed to be addressed before the application could be considered for a public hearing. Since that time, the applicant did not submit any follow up on the outstanding items. 

Moreover, in March 2020, Board Administrator Ally Morris wrote to the applicant:

"Your application has not yet been approved or denied by the Board... In the absence of activity on this application... the Board will schedule it to be dismissed without prejudice..."

Shortly afterwards, Attorney Adam Pfeffer responded:

"The applicant is addressing the design waivers and review comments. We anticipate providing additional submission documents in the near future."

The developers never did provide the required documents.

Board members discussed the nuanced wording of the 2018 ordinance, ultimately determining that simply "dropping papers down on the desk" is not enough and you need to actually go forward with your application and comply with the Board Engineer's review letter in order for an application to be considered "complete application... filed," and because the developers of the 2018 Educational Campus developers did not submit additional documents as required by the Board Engineer, that application was deemed incomplete and therefore they are now not eligible for "re-approval for development of that tract.. in accordance with the provisions of the R-7.5 District."

Accordingly, the Board voted that they lacked jurisdiction to hear this application.

Subsequently, in February 2024, as previously reported here on FAA News, Yeshiva Chemdas Hatorah filed a lawsuit seeking to reverse the Board's denial.

The fourth count of the complaint alleges violations of the New Jersey Civil Rights Act. This count asserts that the developers are entitled to their civil rights of due process and equal treatment under the law, as well as their property rights to proceed with their application and ultimately the development of their land, and the board members violated the developer's civil rights by expressing that the Ordinance involved represented bad policy, would lead to a bad result, questioned the right of the Plaintiffs to apply as contract-purchasers, and ultimately tossing out the application with the claim that they lack jurisdiction to hear the application.

The Planning Board brought in Attorney Michael S. Nagurka, Esq. to join their attorney John Jackson Esq. in defending them against this allegation. The Township Committee brought in Attorney Kevin B. Riordan Esq. to defend them against this allegation.

Mr. Nagurka and Mr. Riordan filed a Motion to dismiss the fourth count as to both the Township Committee and the Planning Board.

As 'tis is the season for hiring attorneys, Yeshiva Chemdas Hatorah brought in Attorney Donna Jennings Esq. to join Mr. Doyle in arguing in support of their Civil Rights Act claim.

The developers' heavily argued in their court filings that the Board violated their rights because they previously approved other "educational campuses converted to residential" applications while only this application got denied.

At oral arguments held on Friday morning, Ocean County Superior Court Assignment Judge Francis Hodgson was not at all impressed with the developers' arguments.

"You can't simply invent a civil rights claim as that would have a chilling affect on land use boards which are simply attempting to review ordinances and applications.

"The fact that the Board previously approved other "educational campuses converted to residential" applications shows that they have no hard feelings against the ordinance itself.

"Land use boards are tasked with reviewing ordinances and applications as they happen to come on the Board's agenda. Therefore just because a board approves one application doesn't mean they can't take a further look at a later application and deem it not worthy of an approval.

"There is a major difference between this application and the previous ones which the Board did approve - the fact that in those other applications the educational campus itself was presented at a public hearing. As this did not occur in this case the Board simply struggled," Judge Hodgson stated.

Hodgson also cited case law which established that civil rights claims must "shock the conscience," and that "to state a claim, you must have been deprived of a certain property interest."

"However, the rights to your land do not extend to permit you to develop your land without regulation. Therefore I don't see how this issue shocks the conscience," Judge Hodgson emphasized.

Judge Hodgson also noted that there was a 5 year delay between submission of the educational campus and the residential application, and the board "simply struggled to find what was appropriate to do here."

Mr. Doyle pleaded for the claim to be dismissed without prejudice only so as to permit him to amend the complaint to better amplify his claims.

Judge Hodgson refused, saying "there is nothing you can do here to make me believe that you have a valid civil rights claim against the board."

Judge Hodgson dismissed the fourth count with prejudice.

The balance of the lawsuit will continue to trial.

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