Preview
OCN L 003482-17 02/13/2018 Pg 1 of6 Trans ID: LCV2018274687
ee
FILED
FEB 13 2018
ORDER PREPARED BY THE COURT
Shore Builders Association of Central New SUPERIOR COURT OF NEW JERSEY
Jersey, LAW DIVISION: CIVIL PART
OCEAN COUNTY
Plaintiff
DOCKET NO. OCN-L-3482-17
CIVIL ACTION
Township of Lakewood and Township
Committee of the Township of Lakewood,
Defendants
PRETRIAL ORDER
This matter having come before the Court on the 13 day of February, 2018, for a pretrial
conference; Afiyfa Ellington, Esq. appearing on behalf of Plaintiff, Shore Builders Association of
Central New Jersey and Steven Secare, Esq. appearing on behalf of Defendants, Township of
Lakewood and Committee of the Township of Lakewood; and the Court having considered the
pretrial memorandum of the parties, and for good cause,
It is on this 13" day of February,201 8, ORDERED:
1. Nature of Action: This is a Compliant in Lieu of Prerogative
Writs filed by New Jersey Shore Builders Association of Central New Jersey (“Plaintiff”)
challenging the Township of Lakewood and the Township Committee of Lakewood
(“Defendants”) enactment of Ordinance # 2017-27, which amended the definition of “attic,
habitable” and established standards for off-street parking, loading, and circulation for the
habitable attics as being the equivalent to one bedroom when calculating the number of bedrooms
ina dwelling for purposes of imposing Residential Site Improvement Standards (“RSIS”). Plaintiff
seeks this Court to declare the subject Ordinance is void, unlawful and unenforceable because it is
arbitrary, capricious and unreasonable.
OCN L 003482-17 02/13/2018 Pg 2 of6 Trans ID: LCV2018274687
2. Admission and Stipulations: Defendant stipulates that on November 8,
2017, the Township Committee of the Township of Lakewood passed Ordinance 2017-27.
3-4, Factual and Legal Contentions: As set forth in the pretrial memoranda of the
Plaintiff and Defendant, copies of which are attached hereto.
5. Damage and Injury Claims: None,
6. Amendments: Plaintiff requests the substitution of the
Plaintiff entity to Shore Builders Association of Central New Jersey, due to a name change from
New Jersey Builders Association. Order entered this date authorizing the amendment to the
pleadings.
7. Issues and Evidence Problems: Whether the subject Ordinance should be
declared arbitrary, capricious and unreasonable, ultra vires, void, unlawful and unenforceable.
8. Legal Issues Abandoned: None,
9, Exhibits: (1) File of Lakewood Township regarding
adoption of the Ordinance 2017-27;
(2) Documents or exhibits discovered as a
result of discovery.
(3) Transcripts, if any, of proceedings before
the Township Committee, and/or minutes of proceedings.
10. Expert Witness: Parties shall exchange list of testimonial
witnesses within 14 days of trial date. Expert reports and depositions to be conducted as set forth
in this order.
11. Briefs: Plaintiff's brief: July 13, 2018
Defendants’ joint brief: August 3, 2018
Plaintiff’s reply brief: August 13, 2018
12, Order of Opening and Closing: Usual.
13, Any Other Matters Agreed Upon: None.
14. Trial Counsel: Paul H. Schneider, Esq.
Steven Secare, Esq.
15. Estimated Length of Trial: One day
16. Weekly Call or Trial Date: Parties have a continuing obligation to confer
relative to stipulations if any prior to trial.
OCN L 003482-17 02/13/2018 Pg 3 of6 Trans ID: LCV2018274687
17. Attorneys for Parties Conferred on: None.
18. Status of Discovery: Service of paper discovery: completed
Answers to paper discovery: April 2, 2018
Expert reports: May 4, 2018
Deposition of fact and expert witnesses:
June 6, 2018
19, Parties Who Have Not Been Served: None.
Parties Who Have Defaulted: None.
MARLENE LYNC. ORP, S.C y
OCN L 003482-17 02/13/2018 Pg 4 of6 Trans ID: LCV2018274687
OCN-L-003482-17 02/05/2018 4:43:46 PM Pg 5 of 6 Trans ID: LCV2018226290
3. Factual and Legal Contentions of Plaintiff
Plaintiff, Shore Builders Association of Central New Jersey is a non-profit association
comprised of homebuilders, subcontractors, vendors and suppliers of business services to the
home building industry and its allied trade throughout Ocean and Monmouth Counties. Shore
Builders has members that are owners and prospective owners of property within the Township
of Lakewood, Ocean County that are subject to the Township’s Land Use and Development
Regulations. Defendant, Township is a Municipal Corporation of the State of New Jersey with
offices located at 231 Third Street, Lakewood, New Jersey 08701. Defendant, Committee
constitutes the duly elected governing body of the Township of Lakewood, with offices located
at 231 Third Street, Lakewood, New Jersey 08701. Lakewood, through its Township
Committee, is empowered to regulate the use and development of real property within its
boundaries pursuant to the grant of authority from the State of New Jersey as set forth in the
Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (the “*MLUL”).
On November 8, 2017, the Township adopted Ordinance 2017-27, modifying Article IX,
Chapter XVIII, §18-200-B, which establishes definitions of terms, of the Township of Lakewood
Unified Development Ordinance (“UDO”), by creating definitions for alleged habitable attics,
Ordinance 2017-27 creates the following definitions:
Attic: The unfinished space between the ceiling assembly
and the roof assembly.
Attic, Habitable; An attic that has a stairway as a means of
access and egress, and in which the ceiling area at a height of
seven feet above the attic floor is not more than one-third the area
of the next floor below.
Ordinance 2017-27 also provides for minimum off-street parking, loading and circulation.
standards for the alleged habitable attics as being the equivalent of one (1) bedroom in
OCN L 003482-17 02/13/2018 Pg 5 of6 Trans ID: LCV2018274687
OCN-L-003482-17 02/05/2018 4:43:46 PM Pg 6 of 6 Trans ID: LCV2018226290
determining the number of bedrooms in a dwelling for calculating the Residential Site
Improvement Standards (RSIS), The Township’s definition of “attic, habitable” as a bedroom,
simply because the area is accessed by a stairway and has a ceiling area at a height of seven feet
above the attic floor that is no more than one-third the area of the next floor below is arbitrary,
capricious and unreasonable.
Under the Township’s definition there is no reasonable expectation that the attic could
reasonably be used as a bedroom where there is no heating, ventilation and air conditioning
standards, installation standards, finished walls, ceiling or floor and other standards that may call
for the space to be considered a bedroom. Permitting the undefined and unscrupulous standard,
would result in all rooms of a dwelling, including but not limited to the garage and kitchen, to be
considered a bedroom due to the potential of a dwelling owner converting the space to a
bedroom without the necessary permit. Thus, Ordinance 2017-27 is arbitrary, capricious and
unreasonable, ultra vires, void, unlawful and unenforceable,
OCN L 003482-17 02/13/2018 Pg 6 of6 Trans ID: LCV2018274687
3-4, FACTUAL AND LEGAL CONTENTIONS:
The plaintiff alleges that Ordinance 2017-27 is invalid as being arbitrary and
capricious. The Township of Lakewood contends that the definition is taken from the
Uniform Building Code and it is a fair definition as it is a national standard and
recognized as such.
DAMAGE AND INJURY CLAIMS:
To be provided by plaintiff.
AMENDMENTS:
None.
ISSUES AND EVIDENCE PROBLEMS:
None.
LEGAL ISSUES ABANDONED:
None.
EXHIBITS:
None at this time.
10 EXPERT WITNESSES:
To be supplied.
il BRIEFS:
Ordered by Court Order.
Page 2 of 4
Preview
OCN L 003482-17 02/13/2018 Pg 1 of6 Trans ID: LCV2018274687 ee FILED FEB 13 2018 ORDER PREPARED BY THE COURT Shore Builders Association of Central New SUPERIOR COURT OF NEW JERSEY Jersey, LAW DIVISION: CIVIL PART OCEAN COUNTY Plaintiff DOCKET NO. OCN-L-3482-17 CIVIL ACTION Township of Lakewood and Township Committee of the Township of Lakewood, Defendants PRETRIAL ORDER This matter having come before the Court on the 13 day of February, 2018, for a pretrial conference; Afiyfa Ellington, Esq. appearing on behalf of Plaintiff, Shore Builders Association of Central New Jersey and Steven Secare, Esq. appearing on behalf of Defendants, Township of Lakewood and Committee of the Township of Lakewood; and the Court having considered the pretrial memorandum of the parties, and for good cause, It is on this 13" day of February,201 8, ORDERED: 1. Nature of Action: This is a Compliant in Lieu of Prerogative Writs filed by New Jersey Shore Builders Association of Central New Jersey (“Plaintiff”) challenging the Township of Lakewood and the Township Committee of Lakewood (“Defendants”) enactment of Ordinance # 2017-27, which amended the definition of “attic, habitable” and established standards for off-street parking, loading, and circulation for the habitable attics as being the equivalent to one bedroom when calculating the number of bedrooms ina dwelling for purposes of imposing Residential Site Improvement Standards (“RSIS”). Plaintiff seeks this Court to declare the subject Ordinance is void, unlawful and unenforceable because it is arbitrary, capricious and unreasonable. OCN L 003482-17 02/13/2018 Pg 2 of6 Trans ID: LCV2018274687 2. Admission and Stipulations: Defendant stipulates that on November 8, 2017, the Township Committee of the Township of Lakewood passed Ordinance 2017-27. 3-4, Factual and Legal Contentions: As set forth in the pretrial memoranda of the Plaintiff and Defendant, copies of which are attached hereto. 5. Damage and Injury Claims: None, 6. Amendments: Plaintiff requests the substitution of the Plaintiff entity to Shore Builders Association of Central New Jersey, due to a name change from New Jersey Builders Association. Order entered this date authorizing the amendment to the pleadings. 7. Issues and Evidence Problems: Whether the subject Ordinance should be declared arbitrary, capricious and unreasonable, ultra vires, void, unlawful and unenforceable. 8. Legal Issues Abandoned: None, 9, Exhibits: (1) File of Lakewood Township regarding adoption of the Ordinance 2017-27; (2) Documents or exhibits discovered as a result of discovery. (3) Transcripts, if any, of proceedings before the Township Committee, and/or minutes of proceedings. 10. Expert Witness: Parties shall exchange list of testimonial witnesses within 14 days of trial date. Expert reports and depositions to be conducted as set forth in this order. 11. Briefs: Plaintiff's brief: July 13, 2018 Defendants’ joint brief: August 3, 2018 Plaintiff’s reply brief: August 13, 2018 12, Order of Opening and Closing: Usual. 13, Any Other Matters Agreed Upon: None. 14. Trial Counsel: Paul H. Schneider, Esq. Steven Secare, Esq. 15. Estimated Length of Trial: One day 16. Weekly Call or Trial Date: Parties have a continuing obligation to confer relative to stipulations if any prior to trial. OCN L 003482-17 02/13/2018 Pg 3 of6 Trans ID: LCV2018274687 17. Attorneys for Parties Conferred on: None. 18. Status of Discovery: Service of paper discovery: completed Answers to paper discovery: April 2, 2018 Expert reports: May 4, 2018 Deposition of fact and expert witnesses: June 6, 2018 19, Parties Who Have Not Been Served: None. Parties Who Have Defaulted: None. MARLENE LYNC. ORP, S.C y OCN L 003482-17 02/13/2018 Pg 4 of6 Trans ID: LCV2018274687 OCN-L-003482-17 02/05/2018 4:43:46 PM Pg 5 of 6 Trans ID: LCV2018226290 3. Factual and Legal Contentions of Plaintiff Plaintiff, Shore Builders Association of Central New Jersey is a non-profit association comprised of homebuilders, subcontractors, vendors and suppliers of business services to the home building industry and its allied trade throughout Ocean and Monmouth Counties. Shore Builders has members that are owners and prospective owners of property within the Township of Lakewood, Ocean County that are subject to the Township’s Land Use and Development Regulations. Defendant, Township is a Municipal Corporation of the State of New Jersey with offices located at 231 Third Street, Lakewood, New Jersey 08701. Defendant, Committee constitutes the duly elected governing body of the Township of Lakewood, with offices located at 231 Third Street, Lakewood, New Jersey 08701. Lakewood, through its Township Committee, is empowered to regulate the use and development of real property within its boundaries pursuant to the grant of authority from the State of New Jersey as set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (the “*MLUL”). On November 8, 2017, the Township adopted Ordinance 2017-27, modifying Article IX, Chapter XVIII, §18-200-B, which establishes definitions of terms, of the Township of Lakewood Unified Development Ordinance (“UDO”), by creating definitions for alleged habitable attics, Ordinance 2017-27 creates the following definitions: Attic: The unfinished space between the ceiling assembly and the roof assembly. Attic, Habitable; An attic that has a stairway as a means of access and egress, and in which the ceiling area at a height of seven feet above the attic floor is not more than one-third the area of the next floor below. Ordinance 2017-27 also provides for minimum off-street parking, loading and circulation. standards for the alleged habitable attics as being the equivalent of one (1) bedroom in OCN L 003482-17 02/13/2018 Pg 5 of6 Trans ID: LCV2018274687 OCN-L-003482-17 02/05/2018 4:43:46 PM Pg 6 of 6 Trans ID: LCV2018226290 determining the number of bedrooms in a dwelling for calculating the Residential Site Improvement Standards (RSIS), The Township’s definition of “attic, habitable” as a bedroom, simply because the area is accessed by a stairway and has a ceiling area at a height of seven feet above the attic floor that is no more than one-third the area of the next floor below is arbitrary, capricious and unreasonable. Under the Township’s definition there is no reasonable expectation that the attic could reasonably be used as a bedroom where there is no heating, ventilation and air conditioning standards, installation standards, finished walls, ceiling or floor and other standards that may call for the space to be considered a bedroom. Permitting the undefined and unscrupulous standard, would result in all rooms of a dwelling, including but not limited to the garage and kitchen, to be considered a bedroom due to the potential of a dwelling owner converting the space to a bedroom without the necessary permit. Thus, Ordinance 2017-27 is arbitrary, capricious and unreasonable, ultra vires, void, unlawful and unenforceable, OCN L 003482-17 02/13/2018 Pg 6 of6 Trans ID: LCV2018274687 3-4, FACTUAL AND LEGAL CONTENTIONS: The plaintiff alleges that Ordinance 2017-27 is invalid as being arbitrary and capricious. The Township of Lakewood contends that the definition is taken from the Uniform Building Code and it is a fair definition as it is a national standard and recognized as such. DAMAGE AND INJURY CLAIMS: To be provided by plaintiff. AMENDMENTS: None. ISSUES AND EVIDENCE PROBLEMS: None. LEGAL ISSUES ABANDONED: None. EXHIBITS: None at this time. 10 EXPERT WITNESSES: To be supplied. il BRIEFS: Ordered by Court Order. Page 2 of 4