Judge upholds zoning board in school denial

Staff Writer

A judge has upheld a decision by the Jackson Zoning Board of Adjustment to deny variances to an applicant who wanted to build a high school for Orthodox Jewish girls in a residential zone.

On Oct. 19, state Superior Court Assignment Judge Marlene Lynch Ford, sitting in Toms River, issued a 23-page opinion in which she upheld the board’s denial of the variance.

“Based on the record, the court finds the conclusions of the board were reasonable in that the granting of the variance would not ‘promote the establishment of appropriate population densities and concentrations,’ ” Ford wrote.

The application which was denied by the board in June 2014 sought a special needs variance to permit the construction of the Oros Bais Yaakov High School on a 7.5-acre lot in a residential zone at 38 Cross St., Jackson. The applicant, Rabbi Ephraim Birnbaum, of Lakewood, testified then that the school would educate as many as 400 girls in grades nine through 12. Following the board’s denial, Birnbaum appealed the decision in Superior Court.

In hearings before the Jackson zoning board, Birnbaum and his attorney, Ray Shea, said the high school would be an inherently beneficial use to the community and was worthy of a variance that would allow the nonresidential use to supersede Jackson’s zoning guidelines pertaining to residential zones.

Residents who objected to the application voiced concern that the high school would cause a significant increase in traffic in the area and could impact their well water.

In voting to deny Birnbaum’s request for a variance, zoning board members cited a number of negative impacts they said the project would cause to the neighborhood that would outweigh any beneficial use the school might provide.

Ford agreed with the members of the zoning board that the application was “intense for the neighborhood and its existing character.”

Birnbaum has since established the Oros Bais Yaakov school in rented space in an industrial complex in Lakewood.

During the 2014 hearings, Shea said a denial of the rabbi’s application would violate the Religious Land Use and Institutionalized Persons Act, which seeks to protect the religious practices of an individual or group.

During a Superior Court hearing on Sept. 9, attorney Phillip Pfeffer, of the New York City law firm Herbert Smith Freehills, representing Birnbaum, said the board’s denial was not consistent with what was presented by the rabbi.

Some of the zoning board’s objections to the project, including the school’s lack of accreditation, did not provide enough grounds for a denial, Pfeffer argued.

The appeal filed by Birnbaum pointed to two Christian schools in Jackson — the Jesus Harvest Time Academy on Freehold Road and St. Aloysius School on Bennetts Mills Road — that were constructed in residential zones.

During the hearings before the zoning board, Shea noted that Jackson Memorial High School and Jackson Liberty High School are in residential zones.

Pfeffer posited that the zoning board’s decision was anti-Semitic in nature.

In his complaint, Birnbaum alleged that comments made by board members John Suttles and Joseph Schulman, and the board’s planner, Ernie Peters, were biased in nature.

Ford addressed that allegation by citing a 2004 case between New York SMSA and the Weehawken Zoning Board of Adjustment, saying that “such remarks at best reflect the beliefs of the speaker and cannot be assumed to represent the findings of an entire board.”

Ford wrote that she found no evidence of discrimination or bias from the Jackson zoning board in regard to Birnbaum’s application.

“The court finds plaintiff’s bias argument without merit,” Ford wrote. “The resolution and findings … do not suggest or indicate the board members’ deliberations were influenced by any testimony that was tainted by prejudice or bias.”

Pfeffer could be reached for comment.

Mayor Michael Reina said, “I was confident the zoning board made the right decision and that our ordinance would hold up. The board objectively considered every relevant impact on the residents of that area to determine that the school was not appropriate for the residential zone.”

The zoning board’s attorney, Sean Gertner, said the judge’s ruling gave the board confidence in its hearings.

“[Ford’s opinion] was well reasoned and vindicated the board’s time and effort,” Gertner said. “After reviewing the entire record, the court saw clearly that the board was not biased or prejudiced in any manner, it simply applied the proper standards in making its determination.”

While Ford’s opinion dealt with the zoning board’s decision solely on the basis of land use law, two additional counts based on the federal Religious Land Use and Institutionalized Persons Act are being considered.

Gertner said he hopes Ford’s predominantly land use based opinion will discourage those appeals.

“Based on the judge’s decision, particularly as the judge addressed the allegation of bias, that for the good of the town and as a good neighbor, [Birnbaum] will determine there is no case and simply dismiss it,” Gertner said. “If they don’t, we are ready to defend.”