The Lakewood Township Planning Board has just formally submitted an appeal to the New Jersey Appellate Division seeking to overturn the Superior Court’s ruling in the Besadar Holdings application which vacated the Board's denial of the application.
This move is a big loss for Yechiel Herzl, the Mayor's Designee on the Planning Board, who was called out by an attorney for allegedly colluding with the developer to attempt to nudge the Board to withdraw from appealing the Superior Court’s ruling.
As first reported here on FAA News, back in June 2022, Solomon Halpern of Besadar Holdings, represented by Attorney Robert C. Shea, Esq. and Engineer Brian Flannery, presented a "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane.
Many neighbors, represented by Attorney Ron Gasiorowski Esq. and Engineer Gordon Gemma, opposed the application.
The Planning Board typically approves new developments easily, especially if they are technically fully conforming. However, this application got very special treatment.
The Board cited concerns that there would be insufficient parking both off and on-street due to the "possibility" that there would be basements.
Board Chairman Moshe Neiman explained that his hesitations with this application were due to the "uniqueness" and "specific clientele" of the Fourteenth Street neighborhood.
Ultimately, the Board voted nearly unanimously to deny the application. Only Chairman Neiman and Mr. Yair Stern abstained from voting.
As previously reported here on FAA News, back in August 2022, the developer returned to the Board seeking reconsideration.
Despite renewed pushback from the developer, the Board again uncharacteristically advocated strongly on behalf of this "unique" neighborhood.
Chairman Neiman uncharacteristically sided strongly with the neighbors, stating, "yes, the application is conforming, and therefore, in a court of law a judge might side with you, however, this board needs to take into account the exclusivity of this neighborhood."
"We can't deny this application solely due to traffic, and if we could do that, we would deny every application because there is traffic everywhere in Lakewood. However, this is a very exclusive neighborhood, with neighbors who have lived here a long time and there are no basements in this area, therefore, this application would change the look of this whole neighborhood and that's why the neighbors fought so strongly against this application," Chairman Neiman added.
The Board voted to deny the reconsideration request.
As first reported here on FAA News, represented by Attorney Shea, back in November 2022, the developer filed a lawsuit seeking to overturn the Board's denial, asserting that "though there was one single design waiver, the application was "effectively as of right."
As previously reported here on FAA News, following the filing of the lawsuit, Viggy Blech retained Attorney Ed Liston Esq. to join the lawsuit as intervenor and help defend the Board.
Ultimately, as previously reported here on FAA News, at a plenary hearing held on November 2, 2023, Judge Wellerson overturned the Board's denial, saying that he is constrained and compelled to reverse the Board's denial of the application because "the Township Committee is the one with the authority to look at an undeveloped piece of property and determine what the appropriate use of the property should be. Unfortunately, it's not in the Planning Board's discretion to question the density permitted by the Township Committee."
"I'm not substituting my own judgement for what is best for Lakewood. I'm saying that I need to consider what is reasonable under the circumstances. Was the reason for the denial based on the waiver or based on other reasons, such as the "uniqueness" and "specific clientele" of the Fourteenth Street neighborhood.
"There is no record before the Board that an approval of this application would create a dangerous situation. Therefore, the question here simply is 'does Lakewood permit this type of development?' That is the question. The answer is yes. Therefore, the Board simply can't enact its own zoning plan," Judge Wellerson concluded.
Subsequently, the neighbors decided to appeal the decision. In January 2024, they filed an initial Notice of Appeal to the Appellate Division.
At the time, the Planning Board agreed to join the appeal.
However, as previously reported in this bombshell report, the Board's participation in the appeal nearly got thrown away.
The Board discussed the pending appeal in a closed session. When they came out of closed session, Mr. Jackson stated that "there had been a suggestion that the Board withdraw from participation in the appeal, but that ultimately the majority of the Board disagreed with this suggestion, therefore the status quo remains in tact and we will continue with our appeal."
Mr. Liston spoke up on behalf of the neighbors. He stated that "the suggestion to withdraw" came from Mr. Herzl who pushed for it due to pressure from the developer. He pointed out that ironically, Mr. Herzl was not even a member of the Board when they denied this application so he shouldn't now have any basis to meddle with the Board's prior actions.
Mr. Liston also objected to the Board discussing Mr. Herzl's suggestion in closed session. He vowed to file complaints with the Ocean County Prosecutor's Office and the New Jersey Attorney General's Office if the Board does go into closed session.
Despite Mr. Herzl's strong efforts, the Board has now held strong to their original commitment to join the neighbors in appealing the ruling, and they have just filed their appeal brief.
The developer is expected to file his appeal brief later this month.
Oral arguments will likely be held in early 2025.
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