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”).

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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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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.

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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-

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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

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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

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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

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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

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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”

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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

1. Plaintiff repeats and re-alleges the statements

contained in the Parties and Background Sections of this

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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

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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.

WHEREFORE, Plaintiff demands judgment as follows:

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

1. Plaintiff repeats and re-alleges the statements

contained in the Parties and Background Sections of this

Complaint and allegations contained in the foregoing counts and

incorporates them herein as if set forth at length.

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.

WHEREFORE, Plaintiff demands judgment as follows:

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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;

d. Awarding Plaintiff attorney’s fees and costs of suit;

and

e. For such other relief as the Court deems just and

equitable.

FOURTH COUNT

INVALIDATION OF ORDINANCE NO. 2017-51 DUE TO VIOLATION OF THE

PLANNED DEVELOPMENT REQUIREMENTS

1. Plaintiff repeats and re-alleges the statements

contained in the Parties and Background Sections of this

Complaint and allegations contained in the foregoing counts and

incorporates them herein as if set forth at length.

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

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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

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until GDMS is required to record a DCR to protect and preserve

the open space created as part of the ACP.

WHEREFORE, Plaintiff demands judgment as follows:

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;

d. Awarding Plaintiff attorney’s fees and costs of suit;

and

e. For such other relief as the Court deems just and

equitable.

FIFTH COUNT

INVALIDATION OF ORDINANCE NO. 2017-51

DUE TO CONFLICT OF INTEREST

1. Plaintiff repeats and re-alleges the statements

contained in the Parties and Background Sections of this

Complaint and allegations contained in the foregoing counts and

incorporates them herein as if set forth at length.

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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

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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.

WHEREFORE, Plaintiff demands judgment as follows:

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
Attorney for Plaintiff

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

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Attorney for Plaintiff

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
Attorney for Plaintiff

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