Complaint in Lieu of Prerogative Writs Challenging The Master Plan and Amendments To Unified Development Ordinances

OCN-L-000071-18 01/12/2018 12:24:44 PM Pg 1 of 31 Trans ID: LCV201872769
Michele R. Donato, Esq.

Attorney ID# 023751977
106 Grand Central Avenue
P.O. Box 145
Lavallette, NJ 08735-0145
(732) 830-0777
Attorney for Plaintiff
SUPERIOR COURT OF NEW JERSEY

FAIRWAYS AT LAKE RIDGE OCEAN COUNTY
HOMEOWNERS ASSOCIATION, INC., LAW DIVISION
DOCKET NO.
Plaintiff,
Civil Action
v.
COMPLAINT IN LIEU OF
LAKEWOOD TOWNSHIP PLANNING PREROGATIVE WRITS
BOARD, LAKEWOOD TOWNSHIP CHALLENGING THE MASTER PLAN
COMMITTEE and GDMS HOLDINGS, AND AMENDMENTS TO UNIFIED
LLC, DEVELOPMENT ORDINANCES
Defendants.
Plaintiff, Fairways at Lake Ridge Homeowners Association,
Inc. (“Plaintiff” or “Fairways”), by way of Complaint against
the Defendants, alleges as follows:
NATURE OF ACTION
This complaint challenges the adoption of the 2017 Master
Plan and Unified Development Ordinances Nos. 2017-24, 2017-51
and 2017-52.
PARTIES
1. Plaintiff is a homeowners’ association consisting of
approximately 1,117 houses affected by changes to the 2017
Master Plan and Unified Development Ordinance (“UDO”).

Plaintiff’s rights to use and enjoy property have been denied,
violated and infringed by the actions of the Defendants.
2. The Defendant Lakewood Township Committee
(“Committee”) is the governing body of the municipality and is
responsible for adoption of the UDO.
3. The Defendant Lakewood Township Planning Board
(“Board”) is a municipal agency established pursuant to the
Municipal Land Use Law (“MLUL”) with jurisdiction to adopt and
amend the master plan, to review proposed amendments to the UDO
and to act on applications for development.
4. The Defendant GDMS Holdings, LLC acquired the Eagle
Ridge Golf Course (“Golf Course”) in 2017. The Golf Course is
designated as Block 524, Lots 1, 2.01 and 77.02 and Block
524.23, Lot 1 in Lakewood Township, New Jersey.
BACKGROUND
1. The R-40 zone is a single-family residential zone
requiring lots to have a minimum lot area of 40,000 square feet.
2. On March 5, 1987, the Township adopted an unnumbered
ordinance allowing adult communities in the R-40 zone.
3. Subsection 5 states that “housing projects for adults,
if not properly located, constructed and maintained may be
detrimental to the general welfare, health and safety of the
occupants of the projects and the Township at large. It is also
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F:\WPDOCS\Fairways at Lake Ridge Homeowners Association\Pleadings\Complaint final.doc
deemed essential that the Township safeguard against
deterioration of an adult community….”
4. Subsection A specifies the design criteria,
development standards, bulk standards and the maximum project
density for all housing types allowed in adult communities.
5. Subsection C specifies the requirements for
Recreational Facilities. “A nine-hole golf course having a
total length of at least 1,400 yards from tee to greens will be
required.” An 18-hole course was required for adult communities
of 1,200 dwelling units or more.
6. Subsection D requires a Declaration of Covenants and
Restrictions (“DCR”) implementing Subsection 18-7.10a “to be
reported by the applicant as an encumbrance upon the site of the
Adult Community …”
7. The Township adopted an amended ordinance affecting
the R-40 zone on February 23, 1989, which again has no number.
The amended ordinance was responsive to the invalidation of the
prior ordinance. The standards for adult communities were
essentially the same as those in the prior ordinance. In
addition, Section (j)(4)(b) requires an age restriction.1
Section (j)(4)(d) requires a minimum open space of 25 percent
“and expressly including the golf course.” Section (j)(4)(e)1
specifies the requirements for recreational facilities,

1
Paragraph numbering in these ordinances is inconsistent and difficult to
follow.
3
including the requirement of a “nine-hole golf course having a
total length of at least 1,400 yards from tee to greens.” An
18-hole course is required for adult communities of 1,200
dwelling units or more. Section (j)(4)f requires a DCR
implementing subsection 18-7.10a “to be reported by the
applicant as an encumbrance upon the site of the Adult Community
…”
8. The Township adopted another amended ordinance
affecting the R-40 zone on March 9, 1989, again with no number.
Subsection 5(j) specifies additional bulk standards for lots in
adult communities.
9. On May 18, 1993, the Planning Board adopted an
amendment to the Master Plan to refer to planned development,
planned recreational communities and planned adult communities
in the R-40 zone. The Planning Board adopted a resolution for
this amendment on June 15, 1993. The amendment states:
In order to provide for increased amenities,

preservation of environmentally sensitive features,
and the application of modern planning techniques, it
is recommended that planned development including
planned recreational and planned adult communities be
allowed as a permitted use at a maximum density of six
(6) units per acre. …
10. The overall strategy for planned development
recognized “environmentally critical features … coupled with an
objective of creating desired amenities, such as increased open
space and recreational facilities.” The purpose of the planned
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development is to “encourage the preservation of natural
features more effectively than conventional zoning techniques.
Special care should be administered in establishing standards
that would coincide with existing development patterns around
such developments.” The attorney for a developer appears to
have prepared the Master Plan amendment and filed the document
with the County Planning Board.
11. On September 23, 1993, the Township again amended the
provisions for the R-40 zone by adopting Ordinance No. 93-046.
This amendment added Section 17.16 for adult communities.
Section 17.16a defines an adult community project (“ACP”) as the
residential community, the recreation facilities, commercial
uses and accessory uses. Section 17.16b requires a minimum
tract size of 100 acres. Section 17.16e specifies area,
coverage and minimum open space requirements with maximum
building coverage of 25 percent of the ACP tract. Density was
reduced to 4.5 units per gross acre and open space was increased
to 50 percent of the ACP tract. Section 17.16h requires
mandated and optional recreation facilities. A golf course,
referred to as the “ACP Golf Course” was classified as optional.
Section 17.16j addresses ownership of recreation facilities.
Section 17.16m requires a declaration of covenants and
restrictions, including recreation facilities, open space and
other common areas within the ACP.
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12. Section 17.16r sets forth the procedures for approval
of an ACP as a general development plan (“GDP”). Section
17.16r1C requires the open space plan as a mandatory minimum
element. Section 17.16r2 mandates certain findings by the
Planning Board in approving any GDP, including that the
maintenance and conservation of the common open space are
reliable. The term of the GDP must also be determined by the
Planning Board.
13. On December 17, 1996, the Planning Board approved the
subdivision and site plan application of Cross Street
Associates, LLC to construct an adult community and a golf
course. The Resolution adopted on January 21, 1997 concluded
that the “proposed development conforms in all respects to the
plan [sic] development provisions permitted within the R-40
Zone.” See Exhibit A attached hereto, consisting of the
Resolution of the Planning Board memorialized on January 21,
1997. Pursuant to the GDP ordinance, the entire tract of land
consisting of the area now developed for the Fairways and the
Eagle Ridge Golf Course applied for subdivision and site plan
approval for the overall project as an ACP. The golf course
satisfied the open space requirements of the GDP ordinance.
14. Municipal records regarding the approval of the
development are sparse. Documents required for approval of the
GDP are not available in the municipal records.
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15. The Fairways residential development and the Golf
Course were approved by a comprehensive permit pursuant to the
Coastal Area Facility Review Act (“CAFRA”) issued by the New
Jersey Department of Environmental Protection (“NJDEP”) in 1997.
The Golf Course created as part of the ACP provided the needed
open space that balanced the development of the housing to
satisfy state requirements.
16. The Golf Course satisfied impervious coverage
requirements and recreational needs pursuant to the 1997 CAFRA
permit and the planned development provisions of the Township
ordinance for the ACP. The CAFRA permit incorporated a mandated
preservation of more than forty acres of forested area, a
thirty-foot buffer surrounding the Golf Course and approximately
four acres of ponds.
17. The CAFRA permit was recorded and is available, but
the file and supporting reports and plans are missing from the
NJDEP’s records.
18. On November 16, 1999, the Planning Board granted final
approval to Sections 8, 9 and 10 for a unit count of 1,035.
With subsequent sections, the total number of units arrived at
approximately 1,125, eight of which are still owned by the
original developer.
19. Eagle Ridge Golf Course was later expanded to include
an additional nine holes, resulting in a 27-hole course. The 9-
7
hole extension is owned by the Township of Lakewood and is a
portion of the former municipal landfill that is still
undergoing monitoring for methane gas releases.
20. Municipal master plan documents designate the Golf
Course as a recreation area. See Exhibit B consisting of the
2014 Land Use Element of the Lakewood Master Plan and Exhibit C
consisting of the 2013 Smart Growth Plan. It is the last
significant open space remaining in the southwest portion of the
rapidly growing municipality.
21. In June 2013, the Township adopted a Smart Growth
Plan, which states that smart growth “consists of a center-based
development approach that concentrates future development into
well-planned compact communities of place, promotes
redevelopment and revitalization of Lakewood’s traditional
downtown, encourages new infill development and redevelopment
along the Township’s highway corridors, and protects critical
environmental resources.” The Smart Growth Plan does not
include the Eagle Ridge Golf Course for development.
22. The Eagle Ridge Golf Course is classified as a fringe
area on the State Planning Map allowing a maximum coverage of
five percent.
23. The site drains to the Toms River and is in the
watershed of the Barnegat Bay, both of which are designated as
Category One waters. Category One waters are afforded the
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highest protections under the Clean Water Act as delegated to
the State of New Jersey for implementation.
24. The Golf Course contains documented habitat for
threatened and endangered species. The Golf Course is subject
to flooding and is an aquifer recharge area. The Golf Course is
environmentally sensitive.
25. Until 2017, the UDO designated the Golf Course in the
R-40 zone and incorporated the ACP provisions of the UDO with a
maximum building coverage of 25 percent of the gross area of the
tract. Maximum building density is 4.5 units per gross acre of
the ACP tract exclusive of commercial uses. Minimum open space
is 50 percent of the gross area of ACP tract and is defined as
portions of the tract not covered by buildings or structures of
any kind, streets or other surfaces paved with impervious
materials.
26. The Planning Board conducted master plan hearings on
September 5, September 6, September 12, September 13, October 3
and October 25, 2017. On November 21, 2017, the Planning Board
adopted the 2017 Lakewood Township Master Plan (“2017 Master
Plan”).
27. On December 7, 2017, the Township adopted Ordinance
No. 2017-51, purportedly to respond to the Land Use Element of
the 2017 Master Plan. Ordinance No. 2017-51 specifies that the
zoning map shall only be adopted and the amendments shall not
9
become effective “only upon the completion of roadway
improvements so as to minimize traffic congestion.”
28. Section 4 of Ordinance No. 2017-51 permits Planned
Unit Developments and cross-references Section 18-1012 as a
Conditional Use within the R-40 zone. There are no other
amendments to the R-40 zone as required by the Master Plan that
would remove age restricted housing. In addition, the existing
Ordinances do not have a Planned Unit Section 18-1012 nor do any
of the amendments adopted in December address this planned
development or conditional use requirement.
29. The Mayor’s designee was improperly appointed to act
in place of the Mayor on the Planning Board but is not a
resident of the Township. The Mayor’s designee must be a
resident of the Township. The Mayor’s designee actively
participated and influenced the Master Plan process.
FIRST COUNT
CHALLENGE TO THE VALIDITY OF THE 2017 MASTER PLAN
1. Plaintiff repeats and re-alleges the statements
contained in the Parties and Background Sections of this
Complaint and incorporates them herein as if set forth at
length.
2. The MLUL establishes planning as the cornerstone of
zoning. Court decisions since adoption of the MLUL have
reinforced the requirement of adoption of a master plan and
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substantial consistency of all zoning ordinances with the land
use and housing elements of the master plan.
3. The MLUL requires that the mandatory land use element
address environmental factors including topography, soils,
forested areas, drainage and other factors. In addition,
existing and proposed location, extent and intensity of
development must be addressed. The land use element must also
take into account the relationship to other land use elements.
4. To prepare the master plan, the Mayor appointed
committees, including a land use committee. The land use
committee included an attorney for developers, developers, a
community representative and one Planning Board member. Most of
the requests for land use changes were presented by Brian
Flannery, P.E., a local engineer. The committees made
recommendations to the Township planners regarding proposed
changes to various elements of the master plan.
5. The draft Master Plan responded to the reports of the
committees and incorporated recommendations into the draft
Master Plan. Regarding the Eagle Ridge Golf Course, GDMS wrote
to request a rezoning, followed by a request from Mr. Flannery.
6. The Master Plan draft revised on September 22, 2017,
was accompanied by a memorandum from the Township planners dated
October 12, 2017. The draft Master Plan identified the R-40
zone as permitting single-family homes on 40,000 square-foot
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lots. The zoning map attached to the draft Master Plan at LU-2
identified the R-40 zone on the golf portion of the ACP.
7. The draft Master Plan contained a reference at page
279 of a request to permit a planned community on tracts of 100
acres or more at a maximum density of 4.5 units per acre and
without any age restriction to be permitted in the R-40 zone as
a conditional use. The housing density subcommittee report was
incorporated as Appendix 1 to the Master Plan and made the
following recommendations regarding the Eagle Ridge Golf Course:
A-1 Adult Communities

• Location: Block 524.23/ Lot 1
• Description: Change the conditional use standard in the
R-40B zone district which currently allows adult
communities on parcels of 100 acres or more with a density
of 4.5 units per acre by deleting the persons of age fifty-
five years and over restriction or change the R-40 zone to
the R-10 zone.
• Smart Growth Plan-Neutral
A-2 Adult Communities.
• Location: R-40 zone
• Description: As noted above, the Ordinance allows
planned adult communities with a density of 4.5 units per
acre for tracts of 100 acres in R-40/40B zones provided the
residences are limited to persons of age fifty-five years
and older. The proposal is to delete the “Senior”
requirement but continue planned community requirement.
• Recommendation for A-1 and A-2: Create a new zone
district (R-40C) that allows for new planned communities on
parcels of 100 acres or more at a density of 4.5 units per
acre without any age restriction.
8. Other than this request found in an appendix on page
265 of the Master Plan, there is no justification for changing
the R-40 zone. There are no recommendations for planned
development.
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9. The memorandum of the Township planner recommended
reducing the density to 3.6 units to the acre.
10. Although the draft Master Plan identifies the Golf
Course as private recreation space in an R-40 zone, the changes
to a multi-family, planned development effectively render the
Golf Course as an R-10 or R-12 zone without any legitimate
justification.
11. After preparation of the draft Master Plan, the
Planning Board held public hearings. Initially, these hearings
were dedicated to consideration of different elements of the
Master Plan; this procedural approach was modified so that there
was no clear organization of topics at the hearings.
12. The Planning Board’s planners repeatedly insisted that
a key requirement of the master plan process is to update the
zoning map to reflect current land uses. Approximately twenty
groups of properties were rezoned to reflect the “as is, as
built” status. For example, the publicly-owned tract at 1536
Massachusetts Avenue was changed from a residential designation
to public purpose zone. On the other hand, the designation of
the Golf Course was not changed, despite the fact the Golf
Course and other golf courses in the Township have been used for
public recreation for many years. Frederick W. Robison, a
representative of the Plaintiff, specifically and repeatedly
13
requested that the Golf Course be identified for its current use
as others were treated.
13. Members of the public, Plaintiff’s representatives,
residents and residents of other adult communities in the
Township expressed considerable concerns regarding the unbridled
and uncontrolled growth throughout the municipality and the
effect of this growth on quality of life, traffic and the
environment. Concerns for the development of the Eagle Ridge
Golf Course were repeatedly addressed by many residents.
14. The public hearings reveal a rambling, confused and
disjointed consideration of the various zoning requests and
other proposals incorporated into the Master Plan.
15. The 2017 Master Plan identifies “significant
population and housing growth” as a key challenge to be
addressed. In addition, the adequacy of infrastructure,
especially streets and circulation, is stressed as a goal, as
well as consistency with the state development regulations and
provisions of the Coastal Area Facility Review Act. The Master
Plan specifically seeks to implement plan endorsement. The 2017
Master Plan also states that it intends to provide “a complete
review of the problems and issues relating to land development
in the municipality.”
16. The vision statement incorporated in the 2017 Master
Plan was “drawn from the adopted 2013 Lakewood Township Smart
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Growth Plan” (“Smart Growth Plan”). This vision statement
expresses the need to preserve open space in the Township and
the protection of the Township’s natural resources.
17. Land use strategies recognize the preservation of
“open space, ... natural beauty and critical environmental
areas” as mandatory smart growth principles. The preservation
and protection of existing viable residential neighborhoods is
also a mandatory strategy. Id. Future residential growth is to
be encouraged “in a coordinated and managed manner” and is to be
in accordance with the Smart Growth Plan. The Master Plan seeks
to discourage land use patterns that are conflicting with
neighboring properties.
18. The Land Use Element identifies existing zones and
describes the R-40 Residential Zone as one that is devoted to
single-family detached housing on minimum lot sizes of 40,000
square feet.
19. Conservation and preservation are identified as
critical components of the 2017 Master Plan to restrict the
disturbance of natural features and tree clearance, to protect
endangered wildlife species and to honor other environmental
considerations. The 2017 Master Plan does not identify the
environmental characteristics of the Eagle Ridge Golf Course,
despite the recent denial of the CAFRA permit that relied on
15
threatened and endangered species on the Golf Course as well as
other environmental limitations.
20. Regarding open space preservation, the Land Use
Element states that “it is essential to preserve and protect
remaining natural areas, which are an important resource and
part of the township’s natural environment and heritage.” The
benefits of preserving and protecting open space are identified.
There is no mention of the environmental attributes of the Eagle
Ridge Golf Course.
21. The Land Use Element refers to the Smart Growth Plan
and indicates that the 2017 Master Plan is “designed to
implement the land use-related goals and visions that are
outlined in the 2013 Smart Growth Plan. This center based
approach specifically identifies certain sites, as a basis for
increased residential density in the downtown regional center.
The proposed land use map purports to implement the Smart Growth
Plan and prior Master Plan documents.
22. At the final hearing, when discussing the rezoning for
the ACP, for the first time, the Planning Board first discussed
the recommendation to change the zoning to permit a planned
development of multi-family housing at a density of 3.6 dwelling
units per acre as a conditional use in the R-40 zone without an
age restriction. No conditions of the conditional use or
planned development were stated. No discussion of the
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environmental constraints of the Golf Course property took
place. No discussion of the suitability of the property
occurred. No consideration of the GDP requirements that would be
violated if the Golf Course was developed was undertaken.
23. Planning Board members debated the impact of traffic
congestion and incorporated a provision that none of the zoning
changes recommended in the 2017 Master Plan would be effective
until the level of service of the roadways are at least level of
service C.
24. After considerable and confusing discussion by members
of the Planning Board, and the inclusion of numerous comments
and revisions, the Planning Board’s administrative officer, an
individual without any professional credentials or planning
degree, questioned whether basement apartments would be
permitted in the planned development and in other zones.
Without discussion or explanation, the Planning Board agreed
that basement apartments would continue to be allowed, thus,
effectively doubling the density in all zones. There is no
mention in the Master Plan of the additional density from
basement apartments.
25. The final version of the 2017 Master Plan includes the
following statement regarding the R-40 Residential District: “In
addition, this land use element proposes that planned
communities on parcels of 100 acres or more, with the maximum
17
density of 3.6 units per gross acre and without any age-
restriction requirements, should be permitted as a conditional
use on 100 contiguous acres of undeveloped tracts.”
26. There is no reference in the draft Master Plan or
final Master Plan discussing why 100-acre parcels in the R-40
zone should be allowed to be developed according to the R-10 or
R-12 zone standards. The only support for this change is a
reference to a request included in the appendix of the draft
Master Plan. There are no suggested conditions for the
conditional use ordinance.
27. The Lakewood Township Planning Board adopted a
resolution for the 2017 Master Plan on November 21, 2017 and its
decision was published on November 29, 2017.
28. The change to the R-40 zone contradicts the goals and
objectives of the 2017 Master Plan and prior Master Plans to
preserve open space and recreation areas.
29. The change to the R-40 Zone is duplicitous in that the
published map designate the Golf Course as an R-40 zone. The
Master Plan misleadingly designates the Golf Course as R-40
without any reference to the development of townhouses at 7.2
dwelling units per acre, i.e., the 3.6 dwelling units per acre
specified by the Plan and the additional 3.6 basement dwelling
units included at the eleventh hour.
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30. The change to the R-40 zone to permit significantly
higher density housing without an age restriction is
inconsistent with the Smart Growth Plan, which does not identify
the Golf Course portion of the ACP for development at this type
or density.
31. The 2017 Master Plan does not identify any
environmental constraints on the Golf Course, a deficiency that
is inconsistent with the findings of the NJDEP about the Golf
Course as stated in the NJDEP denial of the CAFRA permit on
August 3, 2017 and inconsistent with prior Township planning
documents.
32. The change to the R-40 zone was accomplished without
consideration of the carrying capacity of the Golf Course, its
environmental limitations and constraints and its commitment as
open space for the Fairways through the approved planned
development.
33. The decision to evaluate numerous properties to
reflect current use but to exclude consideration of the current
use of the Golf Course using the same standards and criteria is
unreasonable, arbitrary and capricious.
34. The MLUL and case law mandate invalidation of the
Master Plan for non-compliance with the procedural and
substantive requirements of the MLUL. The drastic change to the
R-40 zone by allowing a high density “planned development”
19
without planned development or conditional use standards is
vague.
35. The 2017 Master Plan is unreasonable and is not drawn
with consideration to the characteristics of the land as
required by the MLUL.
WHEREFORE, Plaintiff demands judgment as follows:
a. Declaring the 2017 Master Plan to be invalid and
contrary to the MLUL;
b. Remanding consideration of the 2017 Master Plan to the
Planning Board with directions to adopt a master plan that is
consistent with the requirements of the MLUL;
c. Remanding consideration of the 2017 Master Plan to the
Planning Board with directions to disqualify the Mayor’s
designee from participating unless the designee is a resident of
Lakewood Township;
d. Awarding Plaintiff attorney’s fees and costs of suit;
and
e. For such other relief as the Court deems just and
equitable.
SECOND COUNT
CHALLENGE TO THE VALIDITY OF

ORDINANCE NOS. 2017-24, 2017-51 AND 2017-52 BASED ON
INCONSISTENCY WITH THE LAND USE ELEMENT OF THE MASTER PLAN
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Complaint and allegations contained in the foregoing count and
incorporates them herein as if set forth at length.
2. N.J.S.A. 40:55D-62a requires that all zoning
ordinances and zoning ordinance amendments be substantially
consistent with or designed to effectuate the Land Use Element
of the Master Plan. The governing body may adopt a zoning
ordinance which is inconsistent with or not designed to
effectuate the Land Use Element “but only by affirmative vote of
a majority of the full authorized membership of the governing
body, with the reasons of the governing body for so acting set
forth in a resolution and recorded in its minutes when adopting
such ordinance.”
3. N.J.S.A. 40:55D-16 provides that the resolution
required by Section 62 must be filed with the county planning
board, and the zoning ordinance amendment is not effective until
this filing has occurred.
4. Almost immediately after the Planning Board adopted
the 2017 Master Plan and prior to adoption of the resolution of
the Planning Board, the Township Committee introduced ordinances
purportedly to implement the Master Plan. Before the Planning
Board had an opportunity to finalize changes to the Master Plan,
and adopt the resolution, at 4:00 p.m. on November 8, 2017, the
Township Committee amended the agenda of the meeting for that
21
evening to permit introduction of ordinances allegedly intended
to comply with the Master Plan.
5. The Township Committee referred Ordinance Nos. 2017-51
and 52 to the Planning Board for its report. On referral, the
Planning Board found Ordinance No. 2017-51 to be consistent.
The Planning Board strongly objected to Ordinance No. 2017-52 as
inconsistent and wrote a letter to the Township Committee
offering changes that needed to be made. The Township Committee
purported to change the ordinance to be consistent with the
Master Plan, but the Planning Board’s letter has not yet been
provided to Plaintiff, despite a request for same.
6. On December 7, 2017, the Committee adopted Ordinance
No. 2017-51.
7. Ordinance No. 2017-51 allows planned development
without standards and without explanation. There are no
conditional use standards or other provisions to comply with the
GDP requirements of the MLUL. A copy of the Ordinance is
attached hereto as Exhibit D.
8. Ordinance No. 2017-51 is not consistent with the Land
Use Element of the 2017 Master Plan in that the Land Use Element
designates the Property as R-40.
9. Ordinance No. 2017-51 is inconsistent with the
Planning Board’s revision to the 2017 Master Plan requiring
traffic conditions to be at least level of service C. The
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Ordinance vaguely refers to traffic congestion without any
specification or clarity.
10. Ordinance No. 2017-24 establishes a riparian buffer.
Ordinance No. 2017-24 was introduced on June 22, 2017 and
adopted on December 7, 2017, having been sent to the Board for
consistency review before Master Plan was drafted or adopted.
11. The Ordinance lists permitted and non-permitted uses
that are inconsistent with state law. Ordinance No. 2017-24 is
inconsistent with Ordinance No. 2017-52 that permits
noncontiguous cluster.
12. Ordinance No. 2017-52 is inconsistent with the 2017
Master Plan in that it does not take into account the
recommendations regarding environmental constraints and
applicable controls.
13. The minutes of the Committee meeting do not contain
any discussion as to whether the Ordinance was consistent with
the Master Plan. The Committee did not adopt a resolution of
reasons nor did it record in its minutes the reasons for
deviating from the Land Use Element of the Master Plan. There
is no resolution filed with the Ocean County Planning Board as
required by the MLUL.
a. For a declaration that Ordinance Nos. 24, 51 and 52
are void and of no effect;
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b. Awarding Plaintiff attorney’s fees and costs of suit;
and
c. For such other relief as the Court deems just and
equitable.
THIRD COUNT
INVALIDITY OF ORDINANCE NO. 2017-51 FOR NOT BEING DRAWN WITH

REASONABLE CONSIDERATION TO THE CHARACTER OF THE DISTRICT
Complaint and allegations contained in the foregoing counts and
2. The MLUL provides at N.J.S.A. 40:55D-62a that zoning
ordinances “shall be drawn with reasonable consideration to the
character of each district and its peculiar suitability for
particular uses and to encourage the most appropriate use of
land.”
3. Ordinance No. 2017-51 is not drawn with reasonable
consideration to the character of the district. There is no
consideration of the suitability of the property for the density
of development. Ordinance No. 2017-51 does not encourage the
most appropriate use of land but rather authorizes the wholesale
destruction and overdevelopment of a Golf Course that is an
integral component of the Fairways residential development and
that is recognized to be environmentally sensitive.
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4. Ordinance No. 2017-51 violates the MLUL and is
facially and presumptively invalid. Ordinance No. 2017-51 is
not effective, since it offends the sound planning principles of
the MLUL and is arbitrary, capricious and unreasonable.
Ordinance No. 2017-51 has no discernible planning reason other
than to accommodate the economic interests of the developer and
current owner of the Golf Course.
5. Ordinance No. 2017-51 is spot zoning, is not in
accordance with a comprehensive plan and wrests the Golf Course
from its environment and restrictions without a comprehensive
planning scheme. No other property in the Township is entitled
to this special treatment.
6. Ordinance No. 2017-51 allows an intensity, scale and
size of development inconsistent with that permitted in the
surrounding area and the sustainable use of the Property as
recognized by the prior Master Plan and the State Development
and Redevelopment Plan.
7. Ordinance No. 2017-51 is special legislation that
accommodates a plan by the developer to eliminate the Eagle
Ridge Golf Course and to avoid the limitations applicable to the
development of the Fairways community and the Golf Course as a
planned development from its inception.
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a. For a declaration that Ordinance No. 2017-51 is void
and of no effect;
b. Declaring that Ordinance No. 2017-51 violates the GDP
for the Fairways ACP;
c. Invalidating Ordinance No. 2017-51 due to conflict of
interest;
and
equitable.
FOURTH COUNT
INVALIDATION OF ORDINANCE NO. 2017-51 DUE TO VIOLATION OF THE

PLANNED DEVELOPMENT REQUIREMENTS
2. The ACP consists of the Fairways development and the
Eagle Ridge Golf Course that was approved pursuant to the
specific requirements of the Township’s planned development
ordinance. The open space generated by cluster and planned
development standards was required to be protected by a DCR.
3. Specifically, N.J.S.A. 40:55D-45 requires that the
planning board must make certain findings and conclusions when
26
approving a planned development. Among these requirements is
that the maintenance and conservation of common open space must
be reliable and adequate. N.J.S.A. 40:55D-45b.
4. N.J.S.A. 40:55D-45.2a requires a “general land use
plan specifying the total number of dwelling units, the open
space to be created and an environmental inventory and overall
plans for stormwater management and timing.” N.J.S.A. 40:55D-
65c also addresses the adoption of ordinances allowing planned
development and the assurances that open space will be
preserved.
5. N.J.S.A. 40:55D-43a specifies that if an ordinance
permits planned development, the land to be set aside for common
open space must be dedicated as open space. This provision of
the MLUL mandates the establishment of an entity for the
ownership and maintenance of the open space.
6. By eliminating the Golf Course from the planned
development, open space in the Fairways is reduced to
approximately twenty percent, whereas fifty percent is required
by the GDP and planned development requirements. Other
requirements of the planned development are also violated by
Ordinance No. 2017-51.
7. To implement the requirements of the planned
development ordinance applicable to the ACP and as mandated by
the MLUL, a constructive trust must be placed on the Golf Course
27
until GDMS is required to record a DCR to protect and preserve
the open space created as part of the ACP.
a. For a declaration that Ordinance No. 2017-51 is void
and of no effect;
b. Declaring that Ordinance No. 2017-51 violates the GDP
for the Fairways ACP and illegally permits development on land
that was required by the ordinance to be restricted against
development;
c. Placing a constructive trust on the Golf Course until
GDMS records a DCR to protect and preserve the open space
created as part of the ACP;
and
equitable.
FIFTH COUNT
INVALIDATION OF ORDINANCE NO. 2017-51

DUE TO CONFLICT OF INTEREST
28
2. Meir Lichenstein is a member of the Township
Committee. He voted to introduce the ordinances and adopt them
on first reading.
3. Meir Lichenstein is a real estate management
consultant in Lakewood Township whose company, MSL Property
Management, has many clients with Lakewood properties affected
by the ordinances. Among his clients are the three principals
of GDMS Holdings, LLC, the owner of the Eagle Ridge Golf Course.
4. Mr. Lichenstein previously disqualified himself from
voting on land use ordinances due to conflict of interest.
5. Mr. Lichenstein did not recuse himself from
participating in the adoption of the ordinances challenged in
this Complaint and voted to introduce and adopt the ordinances.
He did not attend the night of the vote on adoption, but his
vote to introduce and adopt on first reading infects the
validity of the ordinance.
6. On information and belief, Mr. Lichenstein instructed
the Township planners to draft the ordinances as written and
adopted.
7. Mr. Lichenstein actively participated in urging the
State Planning Commission to change the planning area for the
Golf Course.
8. Mr. Lichenstein had a disqualifying conflict of
interest and his vote in favor of the ordinances causes the
29
ordinances to be void and invalid and requires remand to the
Township Committee for action without his participation.
9. On information and belief, there are other conflicts
of interest that must be investigated.
a. Invalidating the ordinances for conflict of interest;
b. Remanding the ordinances to the Township Committee for
adoption without disqualifying interests;
c. Providing Plaintiff with the opportunity for discovery
as to other actions in which Mr. Lichenstein was involved and as
to the existence of conflicts of interest for other Committee
members;
d. Directing Mr. Lichenstein to disqualify himself on
matters for which he has a conflict of interest; and
e. For such other relief as the Court may deem just and
equitable.
Michele R. Donato
Dated: January 12, 2018 ________________________________
Michele R. Donato
DESIGNATION OF TRIAL COUNSEL
Michele R. Donato is hereby designated as trial counsel for
the Plaintiff.
Michele R. Donato
Dated: January 12, 2018 ____________________________
Michele R. Donato
30
CERTIFICATION
Pursuant to Rule 4:5-1, I hereby certify that to the best
of my knowledge, the within action is not the subject of any
other pending action nor arbitration proceeding, now or
contemplated and it appears that there are no other persons who
should be joined as parties.
I certify that confidential personal identifiers have been
redacted from documents now submitted to the court, and will be
redacted from all documents submitted in the future in
accordance with Rule 1:38-7(b).
Pursuant to Rule 4:69-4, I hereby certify that transcripts
of proceedings before the Lakewood Township Planning Board and
Township Committee are unnecessary since the proceedings are
administrative and not quasijudicial in nature.
Dated: January 12, 2018 Michele R. Donato

____________________________
Michele R. Donato
31

Complaint in Lieu of Prerogative Writs Challenging The Master Plan and Amendments To Unified Development Ordinances

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Complaint in Lieu of Prerogative Writs Challenging The Master Plan and Amendments To Unified Development Ordinances

Uploaded by

OCN-L-000071-18 01/12/2018 12:24:44 PM Pg 1 of 31 Trans ID: LCV201872769

Michele R. Donato, Esq.

SUPERIOR COURT OF NEW JERSEY

Plaintiff, Fairways at Lake Ridge Homeowners Association,

Inc. (“Plaintiff” or “Fairways”), by way of Complaint against

the Defendants, alleges as follows:

This complaint challenges the adoption of the 2017 Master

Plan and Unified Development Ordinances Nos. 2017-24, 2017-51

1. Plaintiff is a homeowners’ association consisting of

approximately 1,117 houses affected by changes to the 2017

Master Plan and Unified Development Ordinance (“UDO”).

Plaintiff’s rights to use and enjoy property have been denied,

violated and infringed by the actions of the Defendants.

2. The Defendant Lakewood Township Committee

(“Committee”) is the governing body of the municipality and is

responsible for adoption of the UDO.

3. The Defendant Lakewood Township Planning Board

(“Board”) is a municipal agency established pursuant to the

Municipal Land Use Law (“MLUL”) with jurisdiction to adopt and

amend the master plan, to review proposed amendments to the UDO

and to act on applications for development.

4. The Defendant GDMS Holdings, LLC acquired the Eagle

Ridge Golf Course (“Golf Course”) in 2017. The Golf Course is

designated as Block 524, Lots 1, 2.01 and 77.02 and Block

524.23, Lot 1 in Lakewood Township, New Jersey.

1. The R-40 zone is a single-family residential zone

requiring lots to have a minimum lot area of 40,000 square feet.

2. On March 5, 1987, the Township adopted an unnumbered

ordinance allowing adult communities in the R-40 zone.

3. Subsection 5 states that “housing projects for adults,

if not properly located, constructed and maintained may be

detrimental to the general welfare, health and safety of the

occupants of the projects and the Township at large. It is also

deemed essential that the Township safeguard against

deterioration of an adult community….”

4. Subsection A specifies the design criteria,

development standards, bulk standards and the maximum project

density for all housing types allowed in adult communities.

5. Subsection C specifies the requirements for

Recreational Facilities. “A nine-hole golf course having a

total length of at least 1,400 yards from tee to greens will be

required.” An 18-hole course was required for adult communities

of 1,200 dwelling units or more.

6. Subsection D requires a Declaration of Covenants and

Restrictions (“DCR”) implementing Subsection 18-7.10a “to be

reported by the applicant as an encumbrance upon the site of the

7. The Township adopted an amended ordinance affecting

The amended ordinance was responsive to the invalidation of the

prior ordinance. The standards for adult communities were

essentially the same as those in the prior ordinance. In

addition, Section (j)(4)(b) requires an age restriction.1

Section (j)(4)(d) requires a minimum open space of 25 percent

“and expressly including the golf course.” Section (j)(4)(e)1

specifies the requirements for recreational facilities,

including the requirement of a “nine-hole golf course having a

total length of at least 1,400 yards from tee to greens.” An

18-hole course is required for adult communities of 1,200

dwelling units or more. Section (j)(4)f requires a DCR

implementing subsection 18-7.10a “to be reported by the

applicant as an encumbrance upon the site of the Adult Community

8. The Township adopted another amended ordinance

affecting the R-40 zone on March 9, 1989, again with no number.

Subsection 5(j) specifies additional bulk standards for lots in

9. On May 18, 1993, the Planning Board adopted an

amendment to the Master Plan to refer to planned development,

planned recreational communities and planned adult communities

in the R-40 zone. The Planning Board adopted a resolution for

this amendment on June 15, 1993. The amendment states:

In order to provide for increased amenities,

10. The overall strategy for planned development

recognized “environmentally critical features … coupled with an

objective of creating desired amenities, such as increased open

space and recreational facilities.” The purpose of the planned

development is to “encourage the preservation of natural

features more effectively than conventional zoning techniques.

Special care should be administered in establishing standards