In his ongoing litigation against the Lakewood Township Planning Board after the Board voted to withdrawing their pending appeal on the Besadar Holdings application, Viggy Blech has just cranked things up a notch by serving subpoenas for depositions upon Mayor Ray Coles, Planning Board Chairman Moshe Neiman and Yechiel Herzl, the Mayor's Designee on the Planning Board, FAA News has learned.
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 here on FAA News, due to pressure from Yechiel Herzl, the Board last month formally withdrew from their appeal.
As previously reported here on FAA News, just days later, a very upset Viggy Blech, represented by Mr. Liston, filed a lawsuit arguing 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."
Mr. Liston 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.
"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.
Following filing of the lawsuit, Mr. Liston served subpoenas on Mayor Coles, Moshe Neiman, and Yechiel Herzel.
The subpoenas require these individuals to sit for depositions - which may reveal who was behind Mr. Herzl's pressure.
Planning Board Attorney David J. Burns Esq. has just filed a motion seeking to quash the subpoenas.
"Compliance with these subpoenas would be both unreasonable and oppressive... it is unwarranted to take depositions of high-level government officials, absent a showing of firsthand knowledge or direct involvement in the events giving rise to an action, or absent a showing that such deposition is essential to prevent injustice.
"There is no reason that the Mayor should be called to testify in this matter. The mayor has not been mentioned by name or implied by position in the instant complaint. There is insufficient found to establish the mayor’s firsthand knowledge of the claims between the board and the plaintiff. Additionally, the plaintiff has not demonstrated that the Mayor’s testimony is essential to prevent injustice or that it pertains directly to the issues at hand. The lack of specific allegations or claims involving Mayor Coles underscores the absence of justification for compelling his deposition. This principle, established in Hyland reinforces that high-level officials should not be subjected to discovery obligations without a clear and compelling need.
"Similarly, Plaintiffs have not demonstrated that depositions of Yechiel Herzel or Chairman Moshe Neiman are necessary at this stage. The Board’s decisions and actions are already thoroughly documented, and no additional firsthand information from these individuals has been shown to be relevant or essential to the resolution of the case," Mr. Burns wrote in his motion.
The Planning Board has also filed a motion to dismiss the whole complaint.
Both motions are returnable before Judge Hodgson next Friday, December 6, 2024. Mr. Liston has not yet responded to either motion.
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2 comments:
The three gems of the township have to testify, I hope they don't get out of this and we get to hear what they have to say for themselves. Hope they finally crack these swamp creatures.
For a Board member to reference the “exclusivity” of a specific neighborhood as a justification for different treatment is a blatant violation of the Fair Housing Act. This statement not only undermines the credibility of the Board member but also calls into question the integrity of the entire Board for failing to object to this injustice.
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