Three-judge panel presses attorneys over shared parking plan, approval of plans requiring denied variances — and whether a shul’s women’s section counts toward required parking
A three-judge panel of the New Jersey Appellate Division heard oral argument Thursday in the closely watched appeal challenging the Lakewood Planning Board’s approval of Sunset Road Sefardic Congregation — and the judges appeared highly engaged with virtually every major issue raised in the appeal.
Perhaps the most significant moment came during questioning over the shul’s controversial plan to satisfy most of its parking requirement through a permanent shared-parking arrangement with a nearby shopping center on James Street.
Lakewood Planning Board Attorney John Jackson ultimately conceded to the appeals court that the proposed arrangement “may be a violation” of the shopping center’s existing site plan approval.
But that was far from the only lively exchange.
The approximately 40-minute argument also featured extensive questioning over whether the Planning Board could grant final site plan approval after denying the bulk variances upon which the submitted plans were based — leaving entirely new conforming plans to later be reviewed by the Board’s engineer.
And in perhaps the most colorful portion of the argument, the judges and attorneys delved deep into the particulars of Orthodox Jewish synagogue practice while debating whether the women’s section of a shul is part of its “main sanctuary space” and therefore must be included when calculating how many parking spaces Lakewood’s ordinance requires.
As previously reported by FAA News, Sunset Road Sefardic Congregation’s submitted plans provided only two parking spaces on the shul property itself.
The remaining required parking was proposed to be provided at the nearby shopping center through a permanent off-site parking easement.
Attorney Jonathan Leitman of the Law Office of Jan Meyer and Associates, arguing the appeal on behalf of the neighboring property owner, contended that there is a major problem with that arrangement: the shopping center was itself previously approved by the Lakewood Zoning Board subject to its own parking requirements.
Leitman told the court that the shopping center was required to maintain at least 235 parking spaces and has approximately 240 total spaces.
Therefore, he argued, the Planning Board could not simply permit the shopping center to permanently dedicate dozens of those spaces to satisfy another property’s parking obligation if doing so would conflict with the Zoning Board’s prior approval.
One of the appellate judges directly confronted Jackson with that argument.
“So, what about your adversary’s argument, though, that the shopping center will run afoul of the ordinance because they had to have a certain amount of spots?” the judge asked.
Jackson responded that any issue regarding the shopping center’s compliance could be dealt with separately by local officials.
Then came the concession:
“That may be a violation of that site plan. I’ll concede that if they have a site plan that was approved by the Board of Adjustment, they violate it, not the Planning Board.”
The court noted that whether the shopping center ultimately violates its own approval may be an issue “for another day.”
Jackson maintained that the Planning Board was entitled to rely on the shopping center owner’s representation that parking was available and argued that Lakewood’s ordinance expressly permits a Planning Board to approve off-site parking within 1,000 feet.
Leitman’s argument, however, was that the issue is not simply whether Lakewood generally permits off-site parking. Rather, he argued that the particular parking spaces being pledged here are already subject to a prior Zoning Board approval requiring them for the shopping center itself.
The oral argument then ventured into an unusually detailed discussion of Orthodox Jewish synagogue practice — but the precise wording of Lakewood’s ordinance makes that discussion particularly significant.
Lakewood’s parking ordinance does not actually calculate required parking based upon the size of “the main sanctuary.” Instead, it calculates parking based upon the amount of “main sanctuary space.”
The ordinance then expressly states that “main sanctuary area shall not include secondary sanctuary space, mikvah, hallways, bathrooms, kitchen, and other ancillary and/or support rooms.”
Notably, the ordinance does not expressly exclude a women’s section or women’s seating area.
Board Attorney John Jackson, defending the Planning Board’s parking calculation, specifically argued that the women’s section should not be counted.
“This so-called women’s sanctuary, the women’s area, is in a balcony,” Jackson told the panel, explaining that “it is located on the second floor overlooking the sanctuary through an open atrium.” Jackson argued that because the ordinance excludes “auxiliary, accessory, secondary” areas from the parking calculation, “then it cannot be counted.”
Jackson later emphasized that Lakewood’s Planning Board had determined that the women’s section did not count, telling the judges: “They said the women’s sanctuary, we’re not going to count that. The ordinance gives us that latitude.”
Leitman vigorously disagreed.
When Judge Mayer suggested that the women do not sit together with the men under Orthodox tradition and questioned whether the ordinance therefore excluded the women’s sanctuary, Leitman responded: “No, absolutely not, Your Honor. The main sanctuary certainly encompasses the women’s section.”
Leitman, himself an Orthodox Jew, explained that although men and women sit separately, they are nevertheless participating in the same prayer service. He emphasized that the women’s section here is essentially a balcony overlooking the lower sanctuary and offered the court a colorful analogy: excluding the balcony from the parking calculation would be akin to calculating the capacity of a Broadway theater while ignoring everyone sitting in the balcony.
But the precise wording of Lakewood’s ordinance adds another wrinkle to the dispute.
The ordinance does not calculate parking based upon the size of “the main sanctuary.” Rather, it calculates parking based upon “main sanctuary space,” expressly excluding “secondary sanctuary space, mikvah, hallways, bathrooms, kitchen, and other ancillary and/or support rooms.”
The ordinance does not expressly exclude a women’s section.
That distinction could prove significant. Even if the upstairs women’s section is not itself considered the main sanctuary, the Appellate Division could potentially conclude that an area devoted to women participating in the principal worship service nevertheless constitutes “main sanctuary space” rather than “secondary sanctuary space” or another ancillary area expressly excluded by the ordinance.
Leitman went one step further, arguing that interpreting the ordinance to count the portion of the sanctuary where men sit while excluding the portion where women sit would be discriminatory as applied based upon gender and religion.
Jackson later offered his own lengthy explanation of Orthodox Jewish practice while defending the Board’s interpretation.
Jackson emphasized that the women’s section is situated in a balcony and noted Lakewood’s large observant Jewish population. Discussing the practice of men and women sitting separately during services, Jackson told the panel that “in many instances, women don’t go to service on Sabbath, and that is the cultural norm.”
Jackson also emphasized the importance of neighborhood shuls within walking distance, explaining that observant Jews walk to synagogue on Shabbos, and argued that Lakewood’s relatively liberal parking ordinance reflects the particular religious and cultural needs of the Township’s population.
At one point, Jackson — who noted that he himself is not Jewish — told the panel that he had discussed the issue with the shul’s attorney, Adam Pfeffer, on the way into court.
“He is my expert on the ways - ” Jackson began.
The court quickly interjected:
“We don’t need an expert.”
Jackson nevertheless argued that these local circumstances help explain Lakewood’s relatively liberal parking regulations for houses of worship.
“The ordinance is intended to be very liberal to honor both the Constitution and also the predominant cultural force that is in Lakewood,” Jackson told the panel.
He maintained that the Planning Board was familiar with how local shuls operate and permissibly determined that the women’s area did not need to be included in the parking calculation.
The panel also spent considerable time on another potentially consequential issue: What exactly did the Planning Board grant final approval to?
The plans presented to the Board sought multiple bulk variances.
The Board ultimately denied those variances — meaning the proposed building must be redesigned to comply with the ordinance — but nevertheless granted site plan approval conditioned upon new compliant plans subsequently being submitted to and approved by the Board engineer.
Leitman argued that this amounted to an impermissible delegation of the Planning Board’s statutory responsibilities.
Judge Smith appeared particularly interested in the issue and summarized Leitman’s contention for him: “Are you arguing that the Board’s resolution is an impermissible delegation of the Board’s power to its Planning Board professional?”
Leitman answered yes.
Judge Smith then followed the argument to its legal consequence: if the issue is whether the Board unlawfully delegated its statutory authority, that would present a legal question reviewed by the appellate court de novo rather than merely asking whether the Board acted arbitrarily or capriciously.
The judges later pressed the respondents on an even simpler question.
If all of the requested bulk variances were denied and a conforming plan must now be prepared anyway, why not simply bring that new plan back to the Planning Board?
“Why not just submit a new plan so that it’s a cleaner application?” Judge Smith asked the shul’s attorney. “Just submit a revised or amended plan and come back at the next Board meeting.”
Attorney Adam Pfeffer responded that "the application had already consumed numerous lengthy hearings over an extended period" and argued that the Board permissibly conditioned approval on the applicant shrinking the building and complying with the ordinances.
Pfeffer stressed that if the Board engineer determines the revised plans require another variance, the applicant would have to return to the Board.
Jackson similarly argued that the required changes were essentially a matter of making the proposed building smaller.
But the panel pushed back on that characterization.
One judge observed that if the building shrinks and its configuration changes, the resulting site plan could look substantially different from what the Planning Board actually considered.
“The site plan that was approved is not going to look anything like the site plan” ultimately constructed, the judge suggested.
Jackson disagreed, maintaining that the building would simply become smaller while features such as the driveway and parking locations would remain largely unchanged.
Leitman responded on rebuttal that those assurances themselves illustrated the problem.
He noted that neither Pfeffer’s representation that ingress and egress would remain unchanged nor Jackson’s representation that the parking configuration would remain unchanged appears as such in the Board’s resolution.
According to Leitman, the resolution instead leaves the applicant to submit new plans that eliminate the need for the denied variances and allows the Board engineer to determine whether they comply.
Leitman also argued that the changes could be substantial. The original plans contemplated zero-foot buffers in certain locations and virtually no on-site parking, whereas the conforming plans would require significantly different buffers and a substantially smaller building — potentially creating additional room for parking on the shul property itself.
Jackson also offered a practical defense of the Planning Board’s decision not to require yet another public hearing.
He described Lakewood as possibly the busiest Planning Board in New Jersey, with numerous applications regularly appearing on its agendas.
“They need to get shuls approved, and we can’t clog the Planning Board when someone’s going to have a by-right application to come back to have a fourth meeting on the same thing,” Jackson argued.
Jackson then characterized the continued opposition as “really only an all-out attempt to stop this shul from being there.”
The court immediately cautioned him that it was unnecessary to characterize the dispute that way, noting instead that "it had been a lengthy process in which the parties were entitled to exercise their rights."
The three-judge panel did not announce a decision from the bench.
Importantly, the judges’ extensive questioning should not necessarily be read as indicating how they will ultimately rule. Throughout the argument, the panel actively tested the positions advanced by both the neighbors and the respondents.
But Thursday’s argument made clear that the judges were closely examining the appeal’s central questions: whether the Planning Board could approve the application while leaving substantially revised plans for later professional review; whether the proposed off-site parking arrangement can stand despite the shopping center’s own parking obligations; and how Lakewood’s unusual house-of-worship parking ordinance applies to the women’s section of an Orthodox synagogue.
At the conclusion of argument, the court thanked counsel for their oral arguments and written submissions and took the case under advisement.
“We’ll issue an opinion as soon as possible,” the court stated.
FAA News will continue following the case and will report on the Appellate Division’s decision once it is released.
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