Viggy Blech has formally made good on his threat to file suit against the Lakewood Township Planning Board after the Board voted to withdrawing their pending appeal on the Besadar Holdings application, FAA News has learned.
Yechiel Herzl, the Mayor's Designee on the Planning Board, is the main "man in the middle."
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, back in June 2024, the Board's participation in the appeal nearly got thrown away due to pressure from Yechiel Herzl.
At the time, the Board held strong and continued their appeal.
However, since that point, pressure on the Board strengthened.
As previously reported here on FAA News, following a closed session on the matter earlier this month the Board formally announced they are withdrawing from their appeal.
Mr. Liston who is representing Viggy Blech, called out the Board for daring to cave in to this pressure, noting 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 questioned if Yechiel Herzl's pressure is really coming from Mayor Ray Coles.
Mr. Liston vowed to file a lawsuit against the Board for "violating Mr. Blech's constitutional rights."
Mr. Liston has now made good on his threat.
"The Board's action in attempting to withdraw its appeal was arbitrary, capricious, unreasonable, unlawful and a direct violation of the Board's responsibilities and duties under the Municipal Land Use Law," charges Mr. Liston in a complaint he just filed in Superior Court against the Board.
"The Board's decision to withdraw the appeal constitutes an ex-parte reversal of its original decision to deny the application which has the effect of abandoning its position that the said application was properly denied by the Board. The net effect of this action by the Board is to reverse its original position that its denial of the application was proper, without regard to its quasi-judicial role and therefore constitutes a direct violation of plaintiffs due process as an objector. To the extent that this action was undertaken under pressure from the applicant and/or members of the governing body, this pressure infringes on the quasi-judicial powers reserved to the Board under the Municipal Land Use Law," states the complaint.
The complaint demands judgment declaring the Board's withdrawal of the appeal to be ultra vires, null and void.
Almost immediately, Board Attorney David J. Burns, Jr. shot back a Motion to Dismiss For Failure To State A Claim.
"In reviewing the plaintiff's complaint, it is evident that plaintiff fails to cite any law or statutory authority that prohibits a public body such as the Planning Board from deciding not to pursue an appeal... The plaintiff has not demonstrated that any legal duty exists that requires the Board to continue with its appeal. Since no such obligation is imposed by law, there is no actionable claim against The Board.
"Furthermore, the plaintiff himself has filed a separate appeal regarding the same matter under docket number A-2075-23. Thus, the plaintiff’s cause of action, and Judge Wellerson’s decision, will still be reviewed by the Appellate Division. Given that his appeal remains active, the plaintiff is not precluded from pursuing his legal arguments in that forum.
"[Accordingly,] plaintiff’s complaint is devoid of legal merit, and the factual allegations, as presented, are insufficient to support a claim upon which any relief can be granted," the motion contends.
The motion is returnable before Judge Francis Hodgson on Friday, December 6, 2024.
Following the Board's vote to withdraw from the appeal, the Board filed a motion to the Appellate Division seeking approval to withdraw from the appeal. (Withdrawing from an appeal requires approval from the court if the other parties don't consent. As Viggy refused to give his consent, the Board needed to file a motion).
Mr. Liston wrote to the Superior Court that he intends to file opposition to the Board's motion to the Appellate Division, and further to seek a stay on the mattter from the Appellate Division pending the outcome of the instant Superior Court action.
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1 comment:
The taxpayer is the loser in this and all the other lawsuits filed against the township. It's high time that we vote in upstanding representation!
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