YEHUDA SHAIN v. LAKEWOOD TOWNSHIP PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

YEHUDA SHAIN and

BERNICE SHAIN,

Plaintiffs-Appellants,

v.

LAKEWOOD TOWNSHIP PLANNING

BOARD and BETH MEDRASH

GOVOHA OF AMERICA,

Defendants-Respondents,

and

TOWNSHIP OF LAKEWOOD,

Defendant/Intervenor-

Respondent.

_______________________________

April 23, 2014

Before Judges Sapp-Peterson, Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3053-11.

Michele R. Donato argued the cause for appellants.

John J. Jackson, III, argued the cause for respondent, Lakewood Township Planning Board (King, Kitrick, Jackson & McWeeney, LLC, attorneys; Mr. Jackson, on the brief).

Michael B. York argued the cause for respondent, Beth Medrash Govoha of America (Novins, York & Jacobus, P.A., attorneys; Lauren Murray Dooley, on the brief).

Respondent Township of Lakewood has not filed a brief.

PER CURIAM

Plaintiffs Yehuda and Bernice Shain appeal from a July 11, 2012 Law Division order dismissing their complaint in lieu of prerogative writs, which challenged Resolution SP#1957 adopted by defendant the Lakewood Township Planning Board (Board). The resolution was related to an application for preliminary and final major site plan approval, without variances, filed by defendant Beth Medrash Govoha of America (BMG), a specialized graduate level educational institution. BMG proposed to modify its campus by constructing additional library space, a "future [student] dormitory, and parking" on the existing one square block facility. Plaintiffs, who reside across the street, opposed the proposed development, citing various procedural and legal defects.

On notice to the public, the Board held an informational session and later a public meeting. Following BMG's experts' presentations, the Board entertained public comment from plaintiffs and other citizens. The Board also heard numerous legal challenges raised by plaintiffs' counsel. The resolution approving BMG's development was adopted on July 26, 2011.

Plaintiffs filed their Law Division complaint challenging the Board's adoption of the resolution approving BMG's application. On November 22, 2013, Judge Vincent J. Grasso heard the parties' arguments and issued a written opinion rejecting plaintiffs' challenges and dismissing their complaint.

On appeal, plaintiffs reassert each argument presented to and rejected by Judge Grasso. In objecting to the development, plaintiffs emphasize the proposed increased size, resultant aggravation of existing congestion, and overcrowding. We identify plaintiffs' specific arguments.

Plaintiffs allege the development exacerbates the residential area's "parking crisis" because the development would eliminate existing parking. Other points were directed to insufficient stormwater drainage and excessive noise.

Plaintiffs also maintain Judge Grasso erred as a matter of law in upholding the Board's resolution because N.J.S.A. 40:55D-70b grants the Board of Adjustment sole jurisdiction to interpret the municipal zoning map. Plaintiffs claim the Board and the trial judge intruded on this exclusive jurisdiction by relying on their own interpretation of Ordinance 209-53, which plaintiffs suggest restricts development of a Planned Educational Campus to multifamily residential zones (RM).1 Plaintiffs reasoned because BMG's development was not within an RM zone it was therefore inconsistent with the municipal Master Plan, precluding the proposed development.

Plaintiffs next cite, as legal error, the rejection of their argument of conflict of interest. Plaintiffs maintain the Board's Chairman should not have participated in the voting on BMG's development because his recent donation to BMG created a disqualifying conflict of interest and because he and another Board member graduated from BMG in 1994, roughly seventeen years earlier. See N.J.S.A. 40:55D-23b (prohibiting any member of planning board to "act on any matter in which he has, either directly or indirectly, any personal or financial interest").

Further, plaintiffs believe notice to affected neighboring owners was defective. This assertion, raised for the first time before the Law Division, was premised on the fact the published notice included lot and block numbers of the affected realty, rather than street addresses. See N.J.S.A. 40:55D-11 (providing notices describing property proposed for development identify the property "by street address"). Additionally, plaintiffs suggest specifics of proposed use of buildings on the campus were omitted.

Also, plaintiffs assert the Board impinged on the public's due process rights by denying them the ability to pose questions during plaintiffs' initial presentation, which inhibited the Board from considering the completeness of plaintiffs' application. The public was noticed of this "planning review meeting," but public objection was not permitted. Plaintiffs' contention attacks this procedure, without consideration of the Board's June 28, 2011 public hearing conducted prior to issuing final approval.

Returning to the Board's consideration of the parking issue, plaintiffs' last argument identifies what they believe were flaws in the Board's review and conclusions. Accordingly, plaintiffs assert the approval was arbitrary, capricious and unreasonable and the court's failure to reverse was error.

We have considered each of these arguments as discussed during oral argument before us, as presented in the briefs, and as argued to the Law Division. We have also reviewed the record and applicable law. We reject plaintiffs' contentions of error and find no factual or legal insufficiency. We conclude the Board's approval was not ultra vires, nor was it arbitrary, capricious or unreasonable. Further, Judge Grasso's determination, informed by the unrefuted expert testimony, was substantiated by the evidence in the record and correctly applied the law. Accordingly, we affirm for the reasons set forth in Judge Grasso's thorough and well-reasoned thirty-one page written opinion. R. 2:11-3(e)(1)(A).

Affirmed.

1 Section 4 of Ordinance 2009-53 provides:

The area designated by the Township of Lakewood to be Planned Educational Campus is intended to be an overlay into every zone in which schools are permitted, with the overlay of the RM Zone type requirements. This is because the RM Zone permits multifamily. Having a campus with a greater density will fit in best in the RM Zone.