NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2146-22
RED OAKS HOMEOWNERS' ASSOCIATION, LLC,
Plaintiff-Respondent,
v.
PLANNING BOARD OF THE TOWNSHIP OF LAKEWOOD,
Defendant-Respondent,
and
YESHIVA TORA CHAIM,
Defendant-Appellant. __________________________
Argued April 16, 2024 – Decided May 6, 2024
Before Judges Mayer, Enright and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0653-22.
Matthew N. Fiorovanti argued the cause for appellant (Giordano, Halleran & Ciesla, attorneys; Matthew N. Fiorovanti, of counsel and on the briefs). Jonathan L. Leitman argued the cause for respondent Red Oaks Homeowners' Association, LLC (Law Offices of Jan Meyer & Associates, PC, attorneys; Jan Meyer and Jonathan L. Leitman, on the brief).
John J. Jackson III argued the cause for respondent Planning Board of the Township of Lakewood (John J. Jackson III & Associates, Attorneys at Law, LLC, attorneys; John J. Jackson III, of counsel and on the brief; Jilian McLeer, on the brief).
PER CURIAM
Defendant Yeshiva Tora Chaim (Yeshiva) appeals from a January 11,
2023 order denying its cross-motion for summary judgment and a January 12,
2023 order granting a motion for summary judgment on behalf of plaintiff Red
Oaks Homeowners' Association, LLC (Association). Additionally, the Yeshiva
appeals from a March 10, 2023 order denying its motion for reconsideration of
the January 2023 orders. We affirm all orders on appeal.
We recite the history of the Yeshiva's development application presented
to the Planning Board of the Township of Lakewood (Board) from the January
18, 2022 hearing transcript before the Board, the Board's March 1, 2023
resolution granting the Yeshiva's development application, and the judge's
January 6, 2023 oral decision.
A-2146-22 2 In December 2019, the Yeshiva filed an application with the Board for
preliminary and final major site plan approval to construct a stand-alone
dormitory adjacent to an existing school.
Several objectors retained counsel to voice opposition to the dormitory.
The objectors' attorney sent a July 24, 2020 letter to the Board, arguing the
Board lacked jurisdiction to review the Yeshiva's application to build a
dormitory.
In December 2021, following receipt of the letter objecting to the
dormitory, the Yeshiva submitted a revised preliminary and final major site plan
application seeking consolidation of two existing lots and construction of a
stand-alone dormitory (2021 Application). The proposed dormitory was located
in the R-15 single family residential zone as designated per the Lakewood
Township Uniform Development Ordinance (UDO). Pursuant to
§18-902(D)(1) of the UDO, schools are permitted uses in the R-15 zone but
stand-alone dormitories are not.
Prior to the Board's hearing on the 2021 Application, counsel for the
objectors raised the same opposition previously articulated regarding the
Yeshiva's prior application. The objectors claimed the Board lacked jurisdiction
to consider the 2021 Application. The objectors argued the UDO did not permit
A-2146-22 3 a dormitory in an R-15 zone and asserted the Yeshiva required use variance
approval from the Township's Zoning Board of Adjustment.
At the January 18, 2022 public hearing, the Board initially declined to
consider the objectors' jurisdictional argument. The Board proceeded to hear
testimony from various expert witnesses in support of the 2021 Application.
After completion of the Yeshiva's testimony regarding the 2021
Application, the objectors' attorney addressed the Board. The objectors' counsel
argued the Board lacked jurisdiction to review the 2021 Application because a
dormitory was not an accessory use to the school. Counsel asserted the Yeshiva
required a use variance to construct a dormitory in a residential zone and,
therefore, the Township's Zoning Board of Adjustment was the proper forum to
review the 2021 Application.
In response to the objectors' argument, the Board's attorney explained the
Township historically considered a dormitory on the same lot as a school to be
a customary, incidental, and accessory use to a school. Additionally, because
the two existing lots owned by the Yeshiva were going to be consolidated, the
Board's attorney opined "the issue of whether the dormitory is a freestanding
use[] no longer exists."
A-2146-22 4 Counsel for the objectors then voiced the neighboring residents' concerns
regarding noise, lack of privacy, and the number of students associated with the
proposed dormitory. According to testimony proffered by the Yeshiva, the
dormitory would house approximately one hundred eighty students.
Following the objectors' arguments, the Board considered comments from
members of the public regarding the 2021 Application. Those individuals cited
noise and privacy concerns related to the proposed dormitory abutting their
single-family homes.
At the conclusion of the hearing, the Board unanimously approved the
2021 Application. On March 1, 2022, the Board adopted a memorializing
resolution. According to the resolution, the Board found "the granting of the
application will not cause any detriment to the zone plan and zoning ordinance,
and that the benefits of [the] same outweigh any detriments." Additionally, the
resolution "recognized that in Lakewood specifically, a dormitory has been
found to be an accessory use to a school."
The Association filed a complaint in lieu of prerogative writs alleging the
Board lacked jurisdiction to hear the 2021 Application because the Yeshiva
required a use variance under N.J.S.A. 40:55D-70 and only the Township's
A-2146-22 5 Board of Adjustment could review a request for a use variance. The Yeshiva
and the Board filed answers to the Association's complaint.
In November 2022, the Association moved for summary judgment to
vacate the Board's approval of the 2021 Application. In December 2022, the
Yeshiva filed opposition and cross-moved for summary judgment to dismiss the
Association's complaint. On January 6, 2023, the judge heard legal arguments
on the parties' summary judgment motions.
The Association argued a dormitory was not an accessory use to the
school. The Association asserted a dormitory under the UDO was a primary
principal use associated with a planned educational campus. Because the
dormitory was not an accessory use to the school, the Association contended the
Board lacked jurisdiction to consider the 2021 Application. Further, because
the Association raised a legal question regarding jurisdiction, it argued the
judge's review of the jurisdictional issue "should be plenary."
In response to the Association's arguments, the Board claimed, "a
dormitory use is incidental to a school use and[,] [because] there's a close
relationship to a school use in Lakewood Township . . . [,] thus should be
considered an accessory use." When asked by the judge if the Township had an
ordinance authorizing a dormitory as an accessory use in an R-15 zone, the
A-2146-22 6 Board's attorney stated there was none. However, counsel explained the Board
had "institutional knowledge" related to dormitories associated with schools
within the municipality and relied on that knowledge in granting the 2021
Application.
Following the Board's arguments regarding the pending motions, the
Yeshiva disputed the trial court's standard of review was de novo. Rather, the
Yeshiva argued the judge should determine whether the Board's granting of the
2021 Application was arbitrary, capricious, or unreasonable. Additionally, the
Yeshiva asserted the Board's findings in approving the application were entitled
to substantial deference. The Yeshiva's attorney also argued "you can't have a
dorm without a school. They go hand in hand." The Yeshiva further relied on
the Board's "historical analysis" in granting its application based on the Board's
prior approvals of schools with dormitories. Additionally, the Yeshiva asserted
the dormitory met the definition of an accessory use under § 18-200 of the UDO
notwithstanding the absence of dormitories on the list of accessory uses
permitted in the R-15 zone.
After considering the parties' written submissions and oral arguments, the
judge rendered a decision, based on the jurisdiction issue, as to whether the
A-2146-22 7 Yeshiva required a use variance to construct a freestanding dormitory in the R-
15 zone. The judge found:
Lakewood Township has provided for dormitories to be a second primary use within an educational campus, and they provided an ordinance for that to address those standards. . . .
. . . [T]he question here is whether in the R-15 zone a dormitory building is considered an accessory use. There is no ordinance that addresses this. That's not disputed. Where the ordinance addresses it, it addresses that there is, that a dormitory would be a second primary use within an educational campus.
The judge concluded:
I agree that the authority of the Board, the jurisdiction of the Board is driven not by a subjective analysis of what within the community of Lakewood the Board feels is appropriate and just in connection with an application, but what the law views and what is authorized under the Municipal Land Use Law. . . .
And that's not only to protect the applicant so that the applicant is aware of what they have to address when they make an application, but also to protect the community and the people within the R-15 zone. . . .
Additionally, the judge stated:
I cannot conclude that this is authorized under the existing land use ordinances affecting the R-15 zone in Lakewood Township. It's clear to the [c]ourt that this is a second primary use on the lot. It's not an accessory use even under an expansive definition.
A-2146-22 8 And viewed from an objective perspective of the case law as well as the application there, the fact that there has been a practice and a custom in Lakewood to approve these types of applications does not diminish the fact that a freestanding building which [is] sizable enough to provide for living accommodations and sleeping accommodations for [one hundred eighty] students is a reasonable [accessory] use to a school unless an application is made for a use variance.
. . . [I]t's clear to me that this would have required a use variance within the R-15 zone and that the prior history of approvals by the Board, in the [c]ourt's opinion, does not in any way create a right to consider something an accessory use under these circumstances.
. . . [T]he motion for summary judgment based upon the jurisdictional aspect is granted. The cross[-]motion is denied . . . [and] the approval is vacated. . . . I assume that a new application will be made to the Board of Adjustment for a use variance. . . .
The judge further found the proposed dormitory would be a highly intense
use in a predominantly residential zone as it anticipated housing one hundred
eighty students. Because the judge concluded the proposed dormitory was not
"authorized under the existing land use ordinances affecting the R-15 zone in
Lakewood Township," she determined the 2021 Application required a use
variance.
After placing her factual findings and legal conclusions on the record, the
judge entered a January 11, 2023 order denying the Yeshiva's cross-motion and
A-2146-22 9 a January 12, 2023 order granting the Association's motion. For the reasons
explained in her written decision, the judge vacated the Board's approval of the
2021 Application.
On January 31, 2023, the Yeshiva filed a motion for reconsideration of
the January orders. Because the judge who entered the January 2023 orders
retired, a different judge heard the Yeshiva's motion. On reconsideration, the
Yeshiva argued the judge who granted summary judgment in favor of the
Association "applied the wrong standard in reviewing the . . . Board's decision."
The Yeshiva argued the summary judgment judge should have decided whether
the Board's decision was arbitrary, capricious, and unreasonable, and deferred
to the Board's approval because the 2021 Application presented a question of
fact rather than a question of law. The Yeshiva also claimed the summary
judgment judge erred in failing to consider the historic relationship between
schools and dormitories in Lakewood. It also asserted the matter required a
remand for the Board to render "further findings of fact between the relationship
of a dorm and a school."
After considering the parties' written submissions and oral arguments, the
reconsideration judge framed the issue as whether the summary judgment judge
A-2146-22 10 "applied the correct standard; whether it should have been a de novo standard,
or the arbitrary and capricious standard."
The reconsideration judge found:
It is clear . . . these issues were before [the summary judgment judge]. It is also clear, in reviewing page [twenty-eight] of the transcript, that [the summary judgment judge] addressed these in her decision.
As a result, the [c]ourt finds that this does not come within the narrow corridor of properly reconsidering a matter. The [summary judgment judge]'s decision addressed the issues that were raised. . . . [I]t's not an appropriate basis to voice your dissatisfaction with the previous[] decision. [I am d]enying the motion for reconsideration for that reason.
Based on these findings, the reconsideration judge entered a March 10, 2023
order denying the Yeshiva's motion for reconsideration.
On appeal, the Yeshiva argues the summary judgment judge applied the
wrong standard of review in granting the Association's motion for summary
judgment. Further, the Yeshiva contends the summary judgment judge erred in
finding the proposed dormitory was not an accessory use. In addition, the
Yeshiva asserts the reconsideration judge erred in denying its reconsideration
motion. We reject these arguments.
We review a judge's decision on a motion for summary judgment de novo,
applying the same standard as the trial court. Samolyk v. Berthe, 251 N.J. 73,
A-2146-22 11 78 (2022). We must consider "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995)). See also R. 4:46-2(c).
We first address the jurisdiction argument. Whether a board has
jurisdiction over an application is a legal question, which we review de novo.
Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J.
Super. 335, 350 (App. Div. 2008) (citing TWC Realty P'ship v. Zoning Bd. of
Adj. of Twp. of Edison, 315 N.J. Super. 205, 211 (Law Div. 1998)) ("A board's
decision regarding a question of law, such as whether it has jurisdiction over a
matter, is subject to de novo review by the courts and thus is afforded no
deference.").
Only a board of adjustment has statutory authority to hear a variance
application under N.J.S.A. 40:55D-70(d) (colloquially known as a use variance
or (d) variance). The board of adjustment has exclusive jurisdiction to "grant a
variance to allow departure from regulations" to allow "a use or principal
structure in a district restricted against such use or principal structure, [and] an
expansion of a non-conforming use." N.J.S.A. 40:55D-70(d); see also Najduch
A-2146-22 12 v. Twp. of Independence Plan. Bd., 411 N.J. Super. 268, 276-77 (App. Div.
2009) (noting the exclusive jurisdiction of boards of adjustment with resp ect to
(d) variances). Under N.J.S.A. 40:55D-20, "[a]ny power expressly authorized
by [the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163], to be
exercised by (1) [a] planning board or (2) [a] board of adjustment shall not be
exercised by any other body, except as otherwise provided in this act.". Thus,
the exercise of authority by a planning board in reviewing a (d) variance
application is ultra vires. Tanenbaum v. Wall Bd. of Adj., 407 N.J. Super. 446,
460-61 (Law Div. 2006), aff'd o.b., 407 N.J. Super. 371 (App. Div. 2009).
Where an applicant appears before the wrong board based on a lack of
jurisdiction, any action taken by that board is a nullity. Trinity Baptist v. Louis
Scott Hold, 219 N.J. Super. 490, 496-98 (App. Div. 1987).
Planning and zoning boards obtain their jurisdiction by statute,
specifically the MLUL, which "enables and defines the limits of a municipality's
procedural and substantive powers to regulate land development within its
borders." Twp. of Franklin v. Hollander, 338 N.J. Super. 373, 387 (App. Div.
2001), aff'd o.b., 172 N.J. 147 (2002). Because they are created by statute,
planning and zoning boards "may exercise only those powers granted by
A-2146-22 13 statute." Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54 (1998) (quoting
Cox, New Jersey Zoning and Land Use Administration § 4.2.1 (1997)).
A planning board's authority to grant or deny an application under
N.J.S.A. 40:55D-60 is grounded on the planning board having jurisdiction. The
MLUL expressly precludes a planning board's review of a (d) variance
application. Therefore, where a (d) variance is necessary, only the board of
adjustment has jurisdiction to review the application.
Having reviewed the record, we are satisfied the summary judgment judge
properly considered the Association's jurisdiction issue as a question of law and
appropriately applied a plenary standard of review. Because the jurisdiction
issue was a legal question rather than a factual question, the judge did not err in
declining to apply the arbitrary, capricious, and unreasonable standard of
review.
We next consider whether the judge erred in concluding a dormitory was
not an accessory use to the existing school. The Yeshiva and the Board
conceded dormitories were not listed as accessory uses.
"Zoning ordinances frequently permit uses that are accessory or incidental
to an expressly permitted use. However, they often do not define those permitted
accessory uses, and courts must determine whether the proposed accessory use
A-2146-22 14 is 'customarily incidental' to the main activity." Wyzkowski v. Rizas, 132 N.J.
509, 518 (1993). "[A]n accessory use is implied as a matter of law as a right
which accompanies the principal use." Shim v. Washington Twp. Plan. Bd., 298
N.J. Super. 395, 401 (App. Div. 1997). "Zoning ordinances which permit
'customarily incidental' accessory uses to the main activity permit, by
implication, any use that logic and reason dictate are necessary or expected in
conjunction with the principal use of the property." Charlie Brown of Chatham,
Inc. v. Bd. of Adj. for Twp. of Chatham, 202 N.J. Super. 312, 323 (App. Div.
1985).
To determine whether a particular use is accessory to a primary use, courts
analyze whether the use bears a "close resemblance and obvious relation to the
main use," and whether such a use is a "customary use." State v. P.T. & L.
Constr. Co., 77 N.J. 20, 26-27 (1978). "Generally, a use which is so necessary
or commonly to be expected that it cannot be supposed that the ordinance was
intended to prevent it will be found to be a customary use." Id. at 27.
Our courts will evaluate an incidental use's commonality and impact to
determine whether it should be deemed customary. Tanis v. Twp. of Hampton,
306 N.J. Super. 588, 604 (App. Div. 1997). Regarding the commonality factor,
"the decision maker has a duty to 'determine whether it is usual to maintain the
A-2146-22 15 use in question in connection with the primary use.'" Id. at 604-05 (quoting
Charlie Brown, 202 N.J. Super. at 324). "The use must be further scrutinized to
determine whether it has commonly, habitually and by long practice been
established as reasonably associated with the primary use." Charlie Brown, 202
N.J. Super. at 324.
Here, the record failed to establish that dormitories adjacent to schools are
common and usual. A dormitory is not necessarily common, customary,
incidental, or obvious in relationship to a school as a primary use of a property.
Schools commonly exist without dormitories, even in Lakewood.
Under the UDO, dormitories are permissible as primary uses in a planned
educational campus. UDO §18-902(H)(6)(a)(5). If Lakewood considered
dormitories to be accessory uses to every primary school use in the municipality,
it could have enacted an ordinance delineating such structures as permissible
instead of limiting dormitories to planned educational campuses. While the
Yeshiva argued "dorms go hand in hand" with schools, the converse, that schools
go hand in hand with dormitories, is neither obvious, usual, nor customary.
Regarding the impact factor, the focus is "the impact of the use on the
surrounding neighborhood and the zoning plan." Tanis, 306 N.J. Super. at 606.
Our case law recognizes the impact of a proposed accessory use on the
A-2146-22 16 surrounding area "as an appropriate factor in determining whether the us e is 'so
necessary or commonly to be expected that it cannot be supported that the
ordinance was intended to prevent it.'" Ibid. (quoting P.T. & L, 77 N.J. at 27).
While there may be other religious schools in Lakewood with dormitories,
it cannot be said that a dormitory housing one hundred eighty students adjacent
to several single-family residential homes would have no impact on surrounding
properties. Moreover, based on the testimony in the record proffered by the
Association and neighboring residents, the dormitory would have a negative
impact on the character of the surrounding neighborhood. Applying the
commonality and impact analysis to facts in this matter, the judge correctly
concluded the proposed dormitory did not constitute an accessory use and the
Yeshiva's 2021 Application required a use variance.
We next address the denial of the Yeshiva's motion for reconsideration.
We review the denial of a motion for reconsideration under an abuse of
discretion standard. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).
We will not disturb a judge's denial of a motion for reconsideration absent "a
clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,
440 N.J. Super. 378, 382 (App. Div. 2015) (citing Hous. Auth. of Town of
Morristown v. Little, 135 N.J. 274, 283 (1994)).
A-2146-22 17 Reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a motion." Palombi
v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010). Rather, reconsideration
should be utilized only for those cases which fall into that narrow corridor in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
Here, the reconsideration judge did not abuse his discretion in denying the
Yeshiva's motion. The Yeshiva failed to present any new facts or additional
information. Rather, in its motion for reconsideration, the Yeshiva re-asserted
the same issues and facts presented to, and adjudicated by, the summary
judgment judge.
To the extent we have not addressed any of the Yeshiva's remaining
arguments, the arguments are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2146-22 18