FIRST REPORT
In a crushing blow to Fourteenth Street area residents, the New Jersey Appellate Division on Wednesday upheld Judge Wellerson's ruling which overturned the Lakewood Planning Board's denial of the Besadar Holdings application, FAA News has learned.
This application has been quite contentious for over 3 years.
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, Blech filed an appeal, arguing:
1) the public notices were insufficient because they did not specify that approval of the plan would permit the construction of basement apartments
2) the developer failed to present sufficient proofs to satisfy the criteria to be granted two design waivers; and
3) the Township's Ordinance requires developers to prove either a hardship or that the property is peculiarly shaped in order to be granted the design waivers the Besadar Holdings application sought - and the developer failed to comply with this Ordinance requirement, thus the Board properly denied the application and Judge Wellerson's ruling should be overturned.
In a written ruling released this morning, Appellate Division Judges Firko and Bishop-Thompson rejected all 3 arguments.
"Blech argues the public notices were insufficient because they did not specify that approval of the plan would permit the construction of basement apartments.
"Here, Blech misconstrues the nature of plaintiffs' application. The public notices for both hearings were legally sufficient and properly advised the public about plaintiffs' proposed application - preliminary and final major subdivision approval to subdivide an existing tract known as Lots 23, 24.01, and 34 in Block 24 into nine new single-family parcels with a cul-de-sac road, located within the R-12 single-family residential zone district. As reflected in the hearing transcripts, the information provided in the notice was sufficient to enable the public to attend the hearings and present their views to the Board.
"We next address whether the trial court erred in finding plaintiff presented sufficient proofs at the hearing to satisfy the criteria to be granted two design waivers. Both Blech and the Board contend that plaintiffs are required to demonstrate undue hardship to request a design waiver. We are not persuaded.
"A board may grant a design waiver "if the literal enforcement of one or more provisions of the ordinance is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question." N.J.S.A. 40:55D-51(b). This same standard is articulated in UDO § 18-601. While plaintiffs concede no undue hardship existed here, a design waiver may still be granted if literal enforcement of the ordinance is impracticable. We hold the trial court's decision is supported by substantial competent evidence in the record. The record reveals that the trial court acknowledged that plaintiff submitted a conforming application to the Board. The record further reveals that the Board denied the application based on public safety concerns related to density, an issue that falls outside the Board's scope of authority. The trial court correctly determined that "the [B]oard cannot use the occasion of a request for a waiver of a site plan regulation . . . to delve into areas not implicated by the application or which can be adequately addressed in another fashion." We also note the Board mistakenly found plaintiffs failed to satisfy the negative criteria, which applies only to applications seeking variances. Thus, the court correctly determined that it was inappropriate for the Board to consider negative criteria to deny plaintiffs' application.
"Based on our review of the record, we discern no error in the trial court's conclusions that the Board neither followed the statutory guidelines nor properly exercised its discretion... We likewise discern no error in the trial court's conclusion that the Board's action in denying plaintiffs' application was arbitrary, capricious, and unreasonable," the Appellate Division concluded.
This project has been very contentious.
The Planning Board originally joined in with Blech's appeal. However, as previously reported here on FAA News they subsequently bowed to pressure from Yechiel Herzel and withdrew from their appeal. This led to Blech suing the Board in an attempt to force them to rejoin the appeal.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment