BREAKING: AARON HIRSCH FILES LAWSUIT TO OVERTURN LAKEWOOD ZONING BOARD APPROVAL

In September 2023, Lakewood Township's Zoning Board formally denied Chestnut Equity (Yanky Lipshitz)'s application for a new 14 duplex structure development (28 homes plus basement apartments) on the north side of Route 70 between New Hampshire Avenue and Vermont Avenue.

At the public hearing, Chestnut Street resident Aaron  Hirsch strongly opposed the application.

Mr. Hirsch cited the Township's 2017 Master Plan which "discourages the construction of new residential development fronting state, county, and major local roadways."

Mr. Hirsch reiterated that the Board previously denied to lift an age-restriction to permit a housing development with children on Locust Street, so surely the Board should deny a housing development with children on Route 70.

"The safety of Lakewood children should be our priority over development," urged Mr. Hirsch.

However, on April 1, 2024, the Zoning Board did a major reverse and approved a modified development plan for a four-story, 74 unit multifamily residential apartment building on the site.

The use is not permitted in the zoning district and thus required a Use Variance - which the Board granted.

At the public hearing, Mr. Hirsch, who was the sole objector, testified that Brian Flannery, P.E., the applicant's engineer failed to provide the proofs required for the granting of a Use Variance for a non-inherently beneficial use.

Mr. Hirsch further testified as to the "negative criteria" of the required use variance that there is currently considerable traffic on Route 70 and the proposed multi-family residences would increase traffic, therefore the use variance can not be granted without substantial detriment to the public good and the impact on any neighboring adjacent roadways will substantially impair the intent and the purpose of the zone plan and zoning ordinance.

Notwithstanding these objections, the Board approved the use variance.

Mr. Hirsch has just now slammed legal action in New Jersey Superior Court in Ocean County seeking to overturn the Board's approval of the application.

The complaint highlights that the developer induced the Board to approve this major development based on a gross misrepresentation of the Township's 2017 Master Plan, and more specifically, the road improvements contingency that the Planning Board worked fervently to squeeze into the master plan.

Mr. Flannery testified under oath that while this site is currently located in the B-5 zone, the Township's 2017 master plan recommends that this site be rezoned to B-5A which does permit for multifamily uses - "once the traffic is fixed."

Board Chairman Abe Halberstam asked Mr. Flannery “what road improvements are required to be implemented prior to the zone changes going into effect?”

Mr. Flannery - still under oath - responded, "the master plan did not specify any specific road improvements, rather it states that multifamily development should be accessible only through Route 70 and not through Chestnut Street." He added that because the proposed development will only be right in / right out onto Route 70, with no access through Chestnut Street, the intent of the master plan is fulfilled.

This is grossly inaccurate. When the Lakewood Township Planning Board adopted the 2017 Master Plan, which rezoned many properties to permit higher density, they specifically stipulated that certain road improvements be undertaken prior to all the zone changes going into effect.

The final wording of this "road improvements contingency" states as follows:

The zoning recommendations of this section related specifically to changes that would result in an increase in density in the area of the Township located south of Central Avenue, south of Cedarbridge Avenue, west of New Hampshire, north of Route 70, to the borders of Jackson Township and Toms River Township, and not including the non-contiguous cluster ordinance, are intended to be enacted by the Township Committee only when traffic improvement fees have been established through the township and all the following road segments have been sufficiently widened or dualized to minimize congestion to ensure that Cross Street, US Route 9, Pine Street, James Street, Prospect Street (Ocean County Route No. 628), and Massachusetts Avenue (Ocean County Route No. 637) are improved such that they operate at a minimum of “C” in terms of the level of service they provide along the entire roadway as determined by the Township Engineer and as defined by the Institute of Traffic Engineers. Such analysis shall evaluate the total traffic buildout including potential basement apartments.

• Cross Street, from the border with Jackson Township to the intersection with River Avenue;

• US Route 9 from North Lake Drive to the Toms River Township boundary;

• Massachusetts Avenue from the intersection at Prospect Street to its intersection with Cross Street;

• Pine Street from US Route 9 to New Hampshire Boulevard.

• James Street from Cross Street to River Avenue; and,

• Prospect Street from River Avenue to Cross Street.

In addition to the above, the Planning Board recommends that the Township Committee:

• Work with the New Jersey Department of Transportation to provide turning lanes, where needed, along US Route 9.

The important takeaways are that the Master Plan emphatically indicates that no zone changes south of the lake, which will result in an increase in density, shall take effect until all listed road segments have been sufficiently widened or dualized to minimize congestion. Additionally, traffic improvement fees need to have been established through the township prior to the zone changes going into effect.

Accordingly, Mr. Flannery's sworn testimony was a misrepresentation for 3 reasons:

a) the Master Plan's road improvements contingency is that the zone change will not go into effect until all listed road segments have been sufficiently widened or dualized to minimize congestion - and not only that multifamily developments should be accessible only through Route 70 and not through Chestnut Street.

b) the terminology of "sufficiently widened or dualized to minimize congestion" is stipulated to mean that the roads operate at a minimum of “C” in terms of the level of service they provide along the entire roadway as determined by the Township Engineer and as defined by the Institute of Traffic Engineers. Such analysis shall evaluate the total traffic buildout including potential basement apartments

c) Additionally, traffic improvement fees need to have been established through the township. Upon information and belief, the Lakewood Township Committee has enacted such fees in certain areas of the municipality, but not completely throughout the Township.

The Board weighed heavily on Mr. Flannery's testimony when deciding to approve this major development.

Accordingly, the Board's approval was induced through wilful and wanton misrepresentation.

The complaint further contends that the Board's approval of the application was arbitrary, capricious, and unreasonable as it did not meet the statutory requirement for the granting of a use variance and that the Board's Resolution of Approval is deficient pursuant to the Municipal Land Use Law which requires that the Board make “findings of fact and conclusions based thereon," and put all that in writing.

The suit demands judgment voiding the Board's approval of the application; vacating the Resolution of Approval; for costs of suit; and for any further relief as set forth by the court.

The Zoning Board and Chestnut Equity have 35 days to answer the complaint.

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