YEHUDA DACHS IS RUNNING BACK TO COURT SEEKING TO FORCE THE LAKEWOOD PLANNING BOARD TO APPROVE HIS MAJOR APPLICATION ON JAMES & CROSS

A judge previously 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.

Mr. Dachs is now running back to court using other claims in an attempt to get the judge to force the Planning Board to approve his application.

Application SD 2511, filed under the name Yeshiva Chemdas Hatorah (but owned by 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.

Dachs 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 as duplexes are not a permitted use in this zone and they are only permitted in accordance with the 2018 ordinance, which does not apply to 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.

As previously reported here on FAA News, back in July 2024, Ocean County Superior Court Assignment Judge Francis Hodgson dismissed the fourth count with prejudice, noting 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."

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

The remainder of the suit asserts that the Board previously approved R7.5 applications where Yeshiva Gedolah of South Jersey had received a Planned Educational Campus approval, and on Cross Street and Massachusetts Avenue (Yeshiva Chemdas Hatorah's first application), and only at this application - which was filed under the same 2018 application did the Board put up a fight. 

The first count of the complaint alleges that the Board’s failure to take jurisdiction of the application was arbitrary, capricious, and unreasonable.

The second count of the complaint alleges that the application should be granted an automatic approval. 

The third count seeks declatory judgement that the 2018 ordinance only requires that a complete application for a campus be "filed" with the Board, and not that it needs to actually be heard and approved.

Attorney Donna M. Jennings Esq., representing Yehuda Dachs has now filed a motion for summary judgment on the remainder of the complaint.

"Yeshiva Chemdas Hatorah (“Plaintiffs”) attempted to lawfully develop two separate parcels of land under the Ordinance. In the first instance, the Board took no issue with Plaintiffs’ proposal and agreed that only a “complete” Planned Educational Campus application needed to be filed, for the Board to retain jurisdiction. It did not require full approval for the Planned Educational Campus application to be converted to a residential development application Indeed, Plaintiffs never received such approval prior to the Board granting their first residential application. With respect to the second campus application converted to a residential application, the application in issue in these proceedings, the Board decided to re-write the Ordinance based on the Board Attorney’s suggestion that it may re-interpret the Ordinance’s plain language regardless of the legislative history and prior application. Two proposed developments utilizing the same Ordinance’s conversion mechanism were treated disparately. The Board cannot argue its inaction is merely the result of mistake or inadvertent application of the Ordinance when the Board is aware of its own prior action and one of its members, Eli Rennert, heard both applications. The Board also has notice of the legislative history and its own recent decision interpreting the Ordinance," Ms. Jennings wrote.

The motion filing also focuses heavily on Ms. Morris's April 2018 letter deeming the application administratively complete.

On April 3, 2018, Ms. Morris reviewed the application and sent back a letter with a list of missing items. One of these items was that a Planned Educational Campus is permitted only to schools accredited to give a graduate degree. Accordingly, Ms. Morris directed the Yeshiva to submit proof of their accreditation status.

On April 18, 2018, the yeshiva's engineer responded with some of the items requested. Notably, proof of their accreditation status was NOT submitted to the Board (because none existed).

Nonetheless, the next day, Ms. Morris granted the prized "letter of completion."

Ms. Jennings is now using this letter in court against the Board's determination that they lack jurisdiction to hear the duplex application because the Educational Campus application was "never complete."

The Board's resolution of denial states that the Campus Application was incomplete because the Board Administrator’s April 19, 2018 letter “did not specifically state that the application had been deemed complete” and because documents requested at the September 2018 Plan Review meeting were never provided.

"This conclusion is plainly contradictory to the rules governing completeness set forth in the MLUL at N.J.S.A. 40:55D-10.3 and the Township’s own Ordinance § 18-603(E). The Board also ignored the language of the Ordinance requiring only a “complete application” for the Campus Application to be converted into the Residential Application, and instead invented a requirement that that the Campus Application required approval before it could be converted into the Residential Application," Ms. Jennings stressed in her motion filing.

The motion, which is returnable before Judge Hodgson on Friday, September 27, 2024, demands that the Court grant summary judgment in their favor: (1) finding Plaintiffs’ site plan application #2291 proposing to develop a Planned Educational Campus was deemed complete (Count I); (2) declaring Lakewood Ordinance Section 18-900(J) only requires an applicant to file a complete campus application with the Board prior to converting it to one to develop property for residential use pursuant to the R-7.5 zoning standards (Count III); and (3) granting Plaintiffs an automatic approval because the Board failed to act within the statutory timeframe by improperly declining jurisdiction over Plaintiffs’ residential subdivision application (Count II).

In light of the heavy weight Mr. Dachs is holding over Ms. Morris's letter of completion, it boggles the mind how Ms. Morris could have issued that prized letter despite the lack of accreditation she previously indicated was necessary for the application to proceed.

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