Lakewood Mayor Mum on Plan Endorsement Ordinance

May 29th, 2017
Lakewood Mayor Mum on Plan Endorsement Ordinance

[Editor's Note: At 6:16 a.m. on May 29 and at 8:42 a.m. on June 1, 2017, this story was edited for style, content and accuracy.]

In the halls of government in New Jersey's fastest-growing municipality, the silence is deafening.

There is no clack of heels scuffing vinyl flooring as feet stride through glass entry doors.

Tongues strike the back of teeth as mouths move in soundless communication.

Hammer strikes anvil in ears that hear nothing.

Words are soundless in the halls of government when public officials pick and choose the questions they want to answer.

These days, those in a position of power aren't talking about the township's out-of-control development if they can help it.

If public officials want to stay in office, that is exactly what they need to do.

On May 23, members of the Lakewood Planning Board were supposed to discuss an ordinance the Lakewood Township Committee approved on first reading at their April 6 meeting, one year after committeemen decided not to hold second reading and vote on it following public opposition and the threat of litigation.

That did not happen.

The item for discussion was not scheduled for action on the May 23 planning board agenda, as planning board professionals said it would be at the board's May 9 meeting.

At that time, planning board professionals, rather than township professionals, began a presentation of the proposed ordinance. Resident Shloimy Klein strode up to the podium and objected.

The planning board attorney did not ask Klein to swear or affirm that he would tell the truth before allowing Klein to speak.

Planning board professionals said they would reschedule the ordinance discussion for their May 23 meeting, when township professionals would instead make the presentation.

This editor/reporter for NJ News & Views also came to the speaker's podium and asked planning board professionals to confirm what they told Klein.

They did, but once again failed to ask a member of the public to swear or affirm to tell the truth before allowing that person to speak on the record.

Neither Klein nor this editor/reporter spoke during a public forum opened for public comment during the meeting for that purpose.

On May 29, 2017, this editor/reporter for NJ News & Views searched for the planning board's posted May 9, 2017 meeting minutes on the Lakewood Township Website.

Although the May 23, 2017 meeting agenda included the May 9, 2017 minutes as an item scheduled for board approval, the minutes were not posted on the township Web site.

Planning board members were originally scheduled to discuss the amended TID ordinance at their April 25 meeting, which was canceled due to lack of a quorum.

On May 23, this editor/reporter inspected the planning board's meeting agenda, posted on the Lakewood Township Web site, several hours prior to the scheduled 6:00 p.m. meeting that evening. After noting that the agenda did not include an item scheduling the ordinance for discussion, this editor/reporter called planning board Secretary Ally Morris for comment.

Morris said that Township Clerk Kathryn Hutchinson had informed her the committee would be holding second reading and vote of the ordinance without planning board review of it, based on the number of days that had elapsed since the introduction of the ordinance.

This editor/reporter called and e-mailed Hutchinson for comment.

Hutchinson did not respond for comment.

The Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.) governs the planning, zoning, subdivision, and site plan powers of the municipality. Chapter 7 of the Municipal Land Use Law (MLUL) addresses the role of the township clerk in administering the state law.

The township clerk is the administrative officer under the MLUL, unless otherwise designated by local ordinance. He or she may also serve as the municipal planning or zoning board secretary.

In Lakewood Township, Morris serves as planning board secretary and Francine Siegel, the acting zoning officer, serves as secretary for the Lakewood Zoning Board of Adjustment.

Whenever the governing body seeks to legislate a change in local zoning or development, the first step is to prepare a draft ordinance or to accept a proposed ordinance from the planning board. Under the MLUL, the governing body shall read the proposed ordinance by title only at first reading. Members must cast their vote by roll call. In order to advance the proposed legislation, a majority of the members present must cast an affirmative vote for it.

Following approval of the ordinance on first reading, the governing body schedules second reading of the ordinance at least 10 days later.

Because the Lakewood Planning Board did not meet as scheduled on April 25, due to lack of a quorum, the Lakewood Township Committee did not hold second reading and vote on the ordinance at their May 4 meeting.

Planning board professionals accommodated a member of the public concerned that no township professional had been present to discuss the proposed ordinance by rescheduling the discussion to the board's May 23 meeting.

They were not doing him any favor.

Under Chapter 7 of the MLUL, in municipalities having a Master Plan, the municipal planning board adopts the Master Plan and the Housing Element. As a result, any zoning ordinance the governing body approves on first reading must be referred to the planning board for review. The review is based on whether the proposal is substantially consistent with the Master Plan.

The planning board has a period of 35 days after referral to report to the governing body. Failure to report within the 35-day period relieves the governing body from the requirements of a planning board review of the proposed development regulation, revision or amendment being legislated.

At stake is amended legislation that grants preferential treatment to an influential government lobbyist poised to profit from development rights to public land located in a TID that would not be included in an impact fee schedule requiring all other developers to share the cost of off-tract public road improvements.

Noblesse oblige.

Nobility obligates.

Like its' 2016 predecessor, the 2017 ordinance the committee first approved on April 6 would amend a 2013 ordinance, which created two Transportation Improvement Districts (TID), instead of six, and established an off-tract road improvement impact fee schedule.

Last year, NJ News & Views reported that the amended ordinance, introduced in 2016, would have removed Cedarbridge Town Center from the impact fee schedule.

So would the amended TID ordinance introduced this year.

In order to comply with state requirements for permanent Plan Endorsement, Lakewood officials must create TID that distribute the cost of the township's redevelopment among all parties contributing to it, not just among those with less political influence than others.

In an April 20, 2017 letter signed by Lakewood Municipal Manager Thomas Henshaw, addressed to Gerard Scharfenberger, Ph.D., Director of the N.J. State Planning Commission, Henshaw outlined the township's progress in meeting state requirements for permanent Plan Endorsement.

The state Planning Commission conditionally approved Lakewood's Plan Endorsement on February 17, 2016, by Resolution 2016-01. According to Henshaw, the adopted resolution indicates that the town's petition conditionally meets the goals of the State Plan.

"As outlined below, the Township has undertaken efforts to fulfill the conditions of the approval and has made significant progress," Henshaw told Scharfenberger. "However, additional time may be required to address some of the PIA (Planning Implementation Agreement) items, including adopting of the required zoning ordinances."

Henshaw reported that Lakewood had yet to adopt the following:

1.) Revised zoning map, zoning ordinance amendments, and Master Plan;
2.) Revised environmental protection ordinances;
3.) Updated Circulation Element as part of the Master Plan; and
4.) Mechanisms to permanently protect lands outside the sewer service area.

Henshaw noted in his letter to Scharfenberger that the resolution gave Lakewood 18 months to meet those goals, but that the state Planning Commission may elect to extend that time frame.

Henshaw discussed the progress Lakewood had made towards adoption of a revised Master Plan and zoning ordinances. He said that in January 2016, the township hired T&M to prepare a comprehensive update of the Lakewood Master Plan.

"The new master plan will establish the planning foundation for the zoning amendments implementing the centers, planning areas, cores and nodes of the Lakewood Smart Growth Plan," Henshaw said in his letter. "Shortly thereafter, the Township Committee appointed a Master Plan Advisory Committee to oversee the development of the plan."

In May 2016, the Master Plan Advisory Committee met without notice to the public. At the advisory committee's second meeting, members of the public and the media attempted to attend the session. One of the advisory committee members objected to a reporter videotaping the proceedings. Henshaw entered the upstairs meeting room and threatened to call Lakewood police if the reporter and members of the public did not exit the room.

Members of the public and the media exited the room under threat of arrest.

"The Master Plan Advisory Committee, chaired by the Planning Board chairman, held its' first meeting in May 2016 and reviewed a background study prepared by T&M Associates," Henshaw reported in his letter.

Ben Heinemann, whom committeemen announced last year as an appointee to the 2016 Master Plan Advisory Committee, and who chaired the 2006 Master Plan Advisory Committee, responded to an e-mail request for comment last year by informing NJ News & Views that Justin Flancbaum - who is not the planning board chairman - was the current advisory committee chairman, not Heinemann.

Michael Neiman was the 2016 planning board chairman.

At the end of last year, Neiman reportedly resigned his seat on the board. He was succeeded as chairman in 2017 by planning board member Yechiel Herzl.

According to sources, at the end of 2016, committeemen responded to public anger over planning and zoning approval of development applications that diminished the quality of life in Lakewood by asking for the resignations of both Neiman and zoning board chairman Abe Halberstam. Neiman complied by submitting his, but Halberstam refused.

Halberstam continues to serve as zoning board chairman.

Henshaw said that the background study prepared by T&M Associates provided a comprehensive review of the demographics, land use, circulation, natural resources and community facilities of the municipality as a basis for the update to the current Master Plan.

"Subsequently, the Master Plan Advisory Committee formed a series of subcommittees to focus on the major issues and subject areas of the plan, facilitate community outreach, and formulate recommendations for the master plan," Henshaw told Scharfenberger. "The following subcommittees were formed: Open Space, Circulation, Downtown, Housing Density and Senior Issues."

Several weeks after formation of the advisory subcommittees, this editor/reporter for NJ News & Views, accompanied by the journalist calling himself the First Amendment Activist, entered the upstairs meeting room where one of the subcommittees was meeting in closed-door session. As this editor/reporter questioned members as to why the subcommittee was meeting in closed-door session, the First Amendment Activist videotaped the discussion on his smartphone.

After a videotape of the discussion was posted online, the Master Plan subcommittees opened their doors to all members of the public that wanted to attend.

The change in public policy greatly benefits a growing township that needs to respond to the concerns of all citizens invested in it.

"The Master Plan Advisory Committee will meet on May 3rd to review the recommendations and reports of the subcommittees, which serve as the foundation of the draft Master Plan," Henshaw said. "It is anticipated that the Master Plan Advisory Committee will meet in mid to late June to review a draft master plan and forward the draft to the Planning Board for public hearing."

Henshaw said that it was his understanding that the township had scheduled first reading of the required environmental ordinances being prepared by T&M Associates for the township committee's April 20, 2017 meeting.

"Draft wellhead protection, water conservation, and riparian corridor ordinances have been prepared and submitted to the Township Attorney for review," Henshaw wrote.

According to the April 20, 2017 Lakewood Township Committee meeting agenda, the committee did not schedule first reading of the reported ordinances, nor did they introduce the ordinances at any their May 2017 meetings.

NJ News & Views contacted Lakewood Mayor Raymond Coles for comment.

He did not respond to this editor/reporter's e-mail, sent on May 29.

Henshaw told Scharfenberger in his April 20 letter that an updated circulation plan would be prepared as part of the Master Plan.

"The updated circulation will include recommendations formulated by the Transportation subcommittee," Henshaw wrote. "The Township Committee also has authorized Maser Consulting to conduct a series of workshops focusing on solutions and ideas to relieve traffic problems throughout the municipality. This additional study is currently in progress and the Township anticipates the findings of the study will be incorporated into the updated Circulation Element."

Lakewood committeemen can greatly alleviate traffic congestion just by rezoning the township to exclude some uses that are currently permitted throughout town.

According to public testimony at meetings of the Lakewood Planning Board, neighbors have complained that schools and houses of worship open for business in their neighborhood increase traffic and reduce available parking as a result. Accessory uses reportedly also diminish the quality of life for neighbors, while reducing the value of their homes, according to planning board public forum comments.

In his April 20, 2017 letter to Scharfenberger, Henshaw said that Lakewood would shortly begin discussion with the N.J. Department of Environmental Protection (DEP) to review mechanisms to protect lands located outside the approved sewer service areas, including the area near the Kettle Creek. Henshaw also said that the township would engage in discussions with DEP officials regarding preparation of an ordinance to allow non-contiguous clustering.

At previous township committee meetings, this year and last year, resident Gerri Ballwanz repeatedly asked committeemen when such an ordinance would be adopted.

Adoption of the non-contiguous clustering ordinance is required by the state Planning Commission for permanent Plan Endorsement.

Henshaw said in his letter that although some PIA items were not due by August 2017, they would be addressed as part of the comprehensive Master Plan update. Henshaw identified the items as an Historic Preservation Plan, Community Facilities Plan, land issues related to the publicly-owned Lakewood Airport, and an update to the Conservation Plan.

He said other items in the PIA were ongoing, but did not identify them.

Henshaw concluded by asking Scharfenberger for an extension of time.

"The extensive public outreach process associated with the preparation of the master plan including meetings of the Master Plan Advisory Committee and its various subcommittees has added to the time required to complete the master plan," Henshaw wrote. "While time-consuming, Lakewood feels that the involvement of numerous stakeholders and additional citizen input will be beneficial to the overall planning effort and establish a sound foundation for the ordinance implementing the plan."

As a result, Henshaw asked Scharfenberger for a 6-month extension for completion of the conditions of Plan Endorsement that were otherwise required to be completed by August 2017.

Henshaw said that adoption of a revised Master Plan, including a circulation element, would be completed by September 2017.

He said that under the extension - if granted - the township committee also would adopt environmental protection ordinances by September 2017.

Henshaw anticipated adoption of a mechanism to permanently protect lands outside the sewer service area by December 2017.

That will not be possible unless the township committee acts to contain Lakewood's unbridled overdevelopment as well.

Henshaw projected February 2018 as the target date to adopt zoning ordinance amendments and revisions to the township's Zoning Map.

That is a case of putting the cart before the horse. Lakewood needs to adopt zoning ordinance amendments and revisions to the township's Zoning Map before it's too late to do it later.

More importantly, Lakewood committeemen need to focus on completing their punch list of to-do items for permanent Plan Endorsement, not on cynically reintroducing amendments to ordinances required for permanent Plan Endorsement that grant preferential treatment to some Lakewood stakeholders at the expense of others.

They have another chance to get it right.

Instead of dispensing with planning board review of the amended TID ordinance, committeemen can and should ask Hutchinson as MLUL administrative officer to instruct Morris as planning board secretary to reschedule the planning board review of the proposed amended TID ordinance for their June 6 meeting, which precedes the next scheduled township committee meeting on June 8.

More importantly, committeemen need to listen to the recommendations of planning board members, even though the governing body does not have to. Planning board members may have insights into the proposed TID ordinance that committeemen do not, just as members of the public may have insights to share with members of the township's Master Plan Advisory subcommittees that its' members do not.

As long as Lakewood is a representative government, voters have the right to know what is in a proposed ordinance approved by their elected representatives and governed by the state's Municipal Land Use Law.

That means listening to people seeking to communicate with the elected representatives of the state's fastest-growing municipality, whether or not those people are citizens of Lakewood or are members of the media that communicate with those who are.

In a May 25, 2017 e-mail request for comment, this editor/reporter for NJ News & Views asked Lakewood Mayor Raymond Coles to respond for comment regarding the reintroduction of the amended TID ordinance, first approved in 2013.

This editor/reporter asked Coles why the township committee was going to hold second reading and vote on the amended ordinance without the review and recommendations of the Lakewood Planning Board.

This editor/reporter asked Coles to respond to public comments made last year by Lakewood Township Attorney Steven Secare.

At that time, Secare responded to a question from a member of the public regarding the amended TID ordinance. In his response, Secare indicated that the Cedarbridge Town Center, which includes the Cedarbridge Corporate Park, was removed from the TID impact fee schedule based on the Cedarbridge Option Agreement.

Committee members approved the Option Agreement at the turn of the millennia, predating the township's application for Plan Endorsement by several years.

Under the Option Agreement, the development arm of Beth Medrash Govoha, a non-profit institution of higher learning in Lakewood, was contracted to develop a for-profit corporate park in Cedarbridge Town Center, located on the same block as FirstEnergy Park. Despite the site's proximity to the award-winning stadium, the corporate park remained barren of commercial development for more than a decade.

The site is at last being developed for commercial occupancy, but is also the focus of ongoing litigation filed by California resident Kenneth Garzo. Garzo claims title to undersized parcels that comprise the development site that is being improved. As a result, fulfillment of the Option Agreement will continue to cost Lakewood tax dollars, rather than generate them, for many years to come.

"To your knowledge, does the original version of the Option Agreement, or any of the numerous extensions to it that the committee adopted, include specific language to that effect?" this editor/reporter asked Coles.

This editor/reporter had another question for Coles.

"Has the township communicated with state officials to confirm that Lakewood is still eligible for permanent Plan Endorsement if some developers building in a TID are exempt from paying a cost that all other developers must assume?" this editor/reporter asked Coles.

This editor/reporter had one last question for Coles.

"The first TID ordinance included a map with six TID drawn on it," this editor/reporter wrote Coles. "Why did the township committee reduce that number to just two when developers are building throughout the township?"

Coles did not respond for comment.