Subsequent Complaint Filed by The Fairways at Lake Ridge vs. Lakewood TOwnship and GDMS Holdings

OCN-L-001000-20 04/17/2020 3:30:27 PM Pg 1 of 47 Trans ID: LCV2020732160
Michele R. Donato, Esq.

Attorney ID #023751977
106 Grand Central Avenue
P.O. Box 145
Lavallette, NJ 08735-0145
(732) 830-0777
mdonato@micheledonatoesq.com
Attorney for Plaintiff,
Fairways at Lake Ridge Homeowners Association, Inc.
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, THE
PARKE AT LAKEWOOD, LLC, GDMS
HOLDINGS, LLC and AUGUSTA
HOLDINGS, LLC,
Defendants.
Plaintiff, Fairways at Lake Ridge Homeowners Association, Inc.
(“Fairways Association” or “Association”), with offices located at 3
Fairways Boulevard, in the Township of Lakewood, County of Ocean, and
State of New Jersey, by way of Complaint against the Defendants,
allege as follows:
NATURE OF ACTION
This Complaint challenges the decision of the Lakewood Township
Planning Board (“Planning Board”) granting general development plan
(“GDP”) approval to The Parke at Lakewood, LLC (“Parke”) and includes
a cause of action against the Township of Lakewood (“Township”) under

the Open Public Records Act (“OPRA”). Due to invasion of property
rights of homeowners in the Fairways ACP and elimination of the open
space that is a requisite element of the Fairways ACP, the Association
also has a cause of action under the New Jersey Civil Rights Act
(“CRA”).
PARTIES
1. Plaintiff Fairways Association is a homeowners’ association
consisting of approximately 1,124 houses developed in accordance with
Ordinance 93-046 (“ACP Ordinance”). The rights of the Association and
the residents of the Fairways ACP to use and enjoy property have been
denied, violated and infringed by the actions of the Defendants.
2. The Township is the governing body of the municipality and
is responsible for adoption and enforcement of the Unified Development
Ordinance (“UDO”). The Township is a public agency as that term is
defined in the OPRA and is responsible for compliance with OPRA and
the CRA.
3. The Defendant Lakewood Township Planning Board is a
municipal agency established pursuant to the Municipal Land Use Law
(“MLUL”) with jurisdiction to adopt and amend the master plan, review
proposed amendments to the UDO and act on applications for
development, including GDP applications.
4. Parke is the applicant and proposed developer of the Parke
GDP.
5. GDMS Holdings, LLC (“GDMS”) is the developer that requested
the zone change to convert the golf course from open space to high-
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F:\WPDOCS\FAIRWAYS AT LAKE RIDGE HOMEOWNERS ASSOCIATION\PLEADINGS CHALLENGE TO THE PARKE GDP\COMPLAINT CHALLENGING THE PARKE AT
LAKEWOOD GDP FINAL.DOC
density housing. GDMS applied for and obtained approval of permits
from the New Jersey Department of Environmental Protection (“NJDEP”).
6. Augusta Holdings, LLC (“Augusta Holdings”) is the owner of
the golf course.
BACKGROUND
7. On September 23, 1993, the Township amended provisions of
its zoning ordinance to allow adult communities by adopting the ACP
Ordinance. The ACP Ordinance allows increased density as a cluster
development in exchange for the creation of open space on 50 percent
of the tract, referred to in the ACP Ordinance as the “ACP Golf
Course.” At the time of adoption of the ACP Ordinance, the Fairways
ACP was located in a zone requiring a minimum lot area of two acres.
It is currently located in an R-40 zone that requires a minimum lot
area of 40,000. The Fairways ACP is permitted as conditional use
allowing residential units to be clustered in exchange for the
dedication of open space. Golf courses are permitted in the zone only
in connection with an ACP.
8. On December 17, 1996, the Planning Board approved the
subdivision and site plan application of Cross Street Associates, LLC
to construct the Fairways ACP as an adult community and a golf course
by resolution adopted in 1997. (“1997 Resolution”) 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.”
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9. Pursuant to the ACP Ordinance, the entire tract of land
consisting of the area now developed for the Fairways residences and
the ACP Golf Course applied for subdivision and site plan approval for
the overall project as an ACP. The ACP Golf Course satisfied the open
space requirements of the ACP Ordinance and was only permitted in the
zone if part of an ACP.
10. The 1997 Resolution recites that the development meets the
requirements of the planned development in the ACP Ordinance. A
myriad of state and local documents and submissions reveal that the
ACP Golf Course is the open space of the Fairways ACP and also serves
as the stormwater management feature for drainage from the residential
component of the Fairways ACP. The ACP Golf Course is designated as a
recharge area for the Fairways ACP.
11. The Fairways residential development and the ACP Golf
Course were approved by a permit pursuant to the Coastal Area Facility
Review Act (“CAFRA”) issued by the NJDEP in 1997. (“1997 CAFRA
Permit”) The ACP Golf Course was created as part of the Fairways ACP
and provided the recharge area for the stormwater plan for the entire
Fairways ACP, as well as the needed open space that balanced the
clustered housing development.
12. The ACP Golf Course is known and designed as Block 524,
Lots 2.03 and 77.02, and Block 524.23, Lot 1 and is the property for
which Parke applied for GDP approval with secondary access through
Augusta Boulevard, located on Block 524.01, Lots 1 and 1.01.
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13. The ACP Golf Course satisfied impervious coverage
requirements, other CAFRA requirements, stormwater management and
recreational needs pursuant to the 1997 CAFRA Permit consistent with
the planned development provisions of the ACP Ordinance. The 1997
CAFRA Permit incorporated a mandated preservation of more than forty
acres of forested tree save areas, a thirty-foot buffer surrounding
the golf course and approximately four acres of ponds.
14. The 1997 CAFRA Permit is recorded and is available, but the
file and supporting reports and plans were missing from the NJDEP’s
records until the summer of 2019. In approximately July 2019, a
stormwater management report in connection with the 1997 CAFRA Permit
was found, revealing that the ACP Golf Course is designated as the
recharge area for stormwater discharges from the residential component
of the Fairways ACP. These recently located NJDEP records reveal that
the ACP Golf Course was reported by the engineers for Cross Street
Associates to be dedicated as open space for the Fairways ACP and
serve as the recharge area for stormwater discharge from the
residential component of the Fairways ACP.
15. After adoption of the 1997 Resolution that approved the
overall planned development of the Fairways ACP, numerous subsequent
additional site plan and subdivision applications were submitted and
approved over the course of several years that referred to the
entirety of the Fairways ACP tract as including the ACP Golf Course
and the residential component together.
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16. For example, in an application for development filed in
1997, the proposed use is described as “Golf Course for Adult
Community Project.” The application was based on a map dated July 1,
1997 that described the name and location of the development as “The
Fairways at Lake Ridge.” Plans approved for development described the
ACP Golf Course as the “Fairways Golf Course.”
17. After approval of the Fairways ACP as a planned
development, the Planning Board repeatedly recognized the integral
relationship between the ACP residential development and the ACP Golf
Course. For example, the minutes of the Planning Board meeting of May
20, 2008 contain a statement that the “Golf Course and clubhouse are a
permitted principal use in an adult community project.”
18. On November 16, 1999, the Planning Board granted final
approval to Sections 8, 9 and 10.
19. By use variance, additional land known as “the Masters
Collection” was added to the Fairways ACP. In connection with the
approval of the use variance to incorporate the Masters Collection
into the Fairways ACP, colored maps were prepared describing the open
space as including the ACP Golf Course, the common areas in the
residential development and tree preservation areas as open space.
Individual lots are not colored as open space on any of these maps.
With the Masters Collection, the total number of units arrived at
approximately 1,125.
20. The ACP Golf Course is classified as a fringe area on the
State Planning Map allowing a maximum impervious coverage of five
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percent. The State Plan Policy Map designating the ACP Golf Course as
a fringe area has not been legally modified and is subject to
litigation pending in the Appellate Division. The Township and the
Planning Board identified and designated the ACP Golf Course as
dedicated open space throughout the State Plan endorsement process
beginning in 2005 and until October 2017. In 2017, GDMS requested a
zone change to allow high-density housing.
21. In 2009 and 2013, the Township adopted Smart Growth Plans
as part of its efforts to obtain plan endorsement from the State
Planning Commission (“SPC”) to allow increased impervious coverage and
development based on a center-based approach to development that
concentrates future development into well-planned compact communities,
encourages new infill development and redevelopment along the
Township’s highway corridors, and protects critical environmental
resources.” From 2005, the Smart Growth Plans and other municipal
planning documents designate the ACP Golf Course as recreation and
open space. Until 2017, there are no municipal planning documents
that identify the ACP Golf Course for development. Another tract of
land in the southwest area of the Township where the Fairways ACP is
located was designated to be a core to accept additional development.
22. The ACP Golf Course is the last significant open space
remaining in the southwest portion of the rapidly growing
municipality.
23. The ACP Golf Course drains to the Toms River and is in the
watershed of the Barnegat Bay, both of which are designated as
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Category One waters. Category One waters are afforded the highest
protections under the Clean Water Act as delegated to the State of New
Jersey for implementation.
24. The ACP Golf Course contains documented habitat for
threatened and endangered species. The ACP Golf Course is subject to
flooding and is identified in Township planning documents as an
aquifer recharge area. The ACP Golf Course is environmentally
sensitive.
25. Until 2017 when GDMS requested a zone change, the ACP Golf
Course was located in either a two-acre zone or the R-40 zone and
incorporated the ACP provisions of the UDO.
26. The 1993 Master Plan, the 2009 and 2013 Smart Growth Plans,
the 2014 Land Use Element, Reexamination Reports and a number of other
documents designate the ACP Golf Course as open space and recreation.
27. At the urging of Township officials, including Councilman
Meir Lichtenstein, the Township sought plan endorsement from the SPC.
Until 2017, all Township planning documents designated the ACP Golf
Course as open space in the plan endorsement process.
28. GDMS acquired the ACP Golf Course in 2017 and requested
changes to the master plan and amendments to the UDO to convert the
ACP Golf Course from open space to high-density housing, a use not
previously permitted and for which adequate transportation
infrastructure does not exist.
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29. The Planning Board included the request for zone change for
the ACP Golf Course without any planning analysis or study of capacity
and contrary to the plan endorsement petition pending before the SPC.
30. The Fairways Association and members of the public
contested the requested changes to the Master Plan and UDO for the ACP
Golf Course, focusing on the absence of planning studies to support
the requested zoning change and the open space designation of the ACP
Golf Course as a component of the Fairways ACP.
31. Since the master plan process did not include a
transportation infrastructure analysis for the request by GDMS, and in
light of the traffic problems that exist in the Township and in the
area of the Fairways ACP, the Planning Board conditioned the increased
density on implementation of transportation improvements.
32. Without regard to his conflict of interest, Councilman
Lichtenstein introduced Ordinance 2017-51, and on December 7, 2017,
the Township Committee adopted Ordinance 2017-51 to permit high-
density, non-age-restricted housing on the open space of the Fairways
ACP. Consistent with the Master Plan, Ordinance 2017-51 did not
become effective until adequate transportation infrastructure was
implemented.
33. In a last minute, unexplained and undocumented change to
the 2017 Master Plan and Ordinance 2017-51, Councilman Lichtenstein
and Township officials provided information to the SPC that included,
among numerous other changes, the change of zoning for the ACP Golf
Course. The Township and its consultants did not identify that
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development was proposed on the ACP Golf Course, contrary to its
designation in planning documents presented to the SPC since 2005 that
designated the ACP Golf Course as recreation and open space. The
Township did not inform the SPC that another site was identified for
core development in the southwest corner.
34. The SPC conditionally granted plan endorsement that
improperly allowed increased impervious coverage under CAFRA for the
ACP Golf Course. Among the conditions is a requirement for adequate
infrastructure and transportation improvements as well as other
planning requirements.
35. On January 12, 2018, the Fairways Association filed a
Complaint under Docket No. OCN-L-71-18 against the Township, the
Planning Board and GDMS challenging the 2017 Master Plan and 2017
Amendments to the UDO, including Ordinance 2017-51. (“Ordinance
Litigation”) The primary illegality of Ordinance 2017-51 addressed in
the Ordinance Litigation is that development of the ACP Golf Course,
currently known as the Eagle Ridge Golf Course, is prohibited, since
the ACP Golf Course was dedicated as open space in the Fairways ACP
and was generated by clustering density in the residential sections of
the ACP in exchange for open space.
36. As cited in the original and first amended Complaints in
the Ordinance Litigation, the MLUL prohibits development of open space
generated by cluster development in planned development ordinances.
N.J.S.A. 40:55D-39c(2) The allegations in the Ordinance Litigation
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are incorporated herein by reference, since they address common
questions of law and fact.
37. The Fairways Litigation includes several reasons to
invalidate the 2017 Master Plan and Ordinance 2017-51, including, but
not limited to, the participation of Councilman Lichtenstein, who has
a conflict of interest under both the common law and the Local
Government Ethics Law. The challenge to the 2017 Master Plan and
Ordinance 2017-51 involve common questions of law and fact and a
motion to consolidate will be filed after this Complaint is filed.
38. The condition in Ordinance 2017-51 required traffic
improvements to be installed to achieve Level of Service C before the
high-density housing on the ACP Golf Course becomes effective. This
requirement was one of the conditions of the conditional plan
endorsement.
39. In January 2018, Augusta Holdings filed a separate action
under Docket No. OCN-L-147-18 against the Township (“Augusta
Litigation”) challenging the traffic condition of Ordinance 2017-51,
the same ordinance challenged in the Ordinance Litigation.
40. The attorneys for the Township and GDMS are the same as in
the Fairways Litigation and the principals of Augusta Holdings are the
same as the principals of GDMS and Parke.
41. In violation of the entire controversy doctrine and case
law regarding severability of ordinance provisions, Augusta Holdings
challenged the implementing condition without notice to the Fairways
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Association, without their knowledge and in violation of the entire
controversy doctrine.
42. At no time during the proceedings in the Augusta Litigation
did Augusta Holdings or its attorney identify the Fairways Litigation;
Augusta Holdings did not file an amended Rule 4:5-1 certification or
CIS to identify the Fairways Litigation. Although the Township
identified the Fairways Litigation in its Answer and CIS, it took no
further action to identify that the Ordinance Litigation challenged
the identical ordinance. Although counsel claimed that he was unaware
of the Fairways Litigation when he filed the Augusta Litigation, since
service was not yet effectuated on GDMS, he did not update the
certification as required by Rule 4:5-1(b)(2) after service of the
Complaint in the Ordinance Litigation. Augusta Holdings filed a
motion for summary judgment relying on the certification of counsel.
43. The Township did not submit a counterstatement of material
facts but instead agreed with Augusta Holdings that there were no
issues of fact in dispute. The Township did not identify the
conditions imposed by the SPC for plan endorsement nor did it refer to
the planning history of the Township that consistently identified the
ACP Golf Course as dedicated open space and recreation. The Township
did not explain that there were no infrastructure studies to support
the rezoning request.
44. On April 12, 2018, the Motion for Summary Judgment was
granted invalidating the transportation condition of Ordinance 2017-51
but allowing the change of use to remain. The order became final at
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the same time that counsel was actively participating in the Fairways
Litigation. Based on the severability clause in Ordinance 2017-51,
the court allowed the increased density without an age restriction and
without transportation improvements as required by the Master Plan and
Ordinance 2017-51.
45. In Accardo et al. v. The Kokes Family et al., Docket No.
OCN-L-1268-18, approximately 350 properties and 675 property owners
filed a consumer fraud action and constructive trust claims based on
the false representations by the developer that the ACP Golf Course
was an integral and component part of the Fairways ACP. The evidence
in these cases overwhelming reveals that the Fairways ACP was built
and sold as a golf community, further supporting the open space nature
of the ACP Golf Course.
46. In January 2019, the Fairways Association learned that
Parke applied for Planning Board approval of a GDP application. At
that time, the Fairways Association learned that Augusta Holdings had
obtained summary judgment voiding a critical component of Ordinance
2017-51 and attempted to render the Fairways Litigation partially moot
by invalidating the infrastructure requirement.
47. In January 2019, the Association filed an Order to Show
Cause to prevent the GDP application from proceeding, which was
denied.
48. On February 26, 2019, the Association filed a multi-pronged
motion seeking to intervene in the Augusta Litigation, vacate the
summary judgment, and consolidate the Fairways Litigation and the
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Augusta Litigation. The motions were denied in their entirety and the
Court allowed the GDP application by the Parke to proceed based on
concessions from counsel for the developer that “[t]he notion that,
well, we could go ahead and get development approvals and then we
would have vested rights -- if we get development approvals pursuant
to an ordinance subsequently declared invalid, an ordinance already
under challenge, those development approvals go away. There's no basis
to claim that you have vested rights under an invalid ordinance, I
don't think, under any circumstances, and certainly not when the
ordinance is already under challenge at the time you get the approval.
And judicial estoppel -- we're estopped in the future from claiming to
the contrary.” (3/15/19 Transcript Page 19, Lines 13-24)
49. An appeal is pending in the Appellate Division challenging
the severance of the traffic condition and denial of Plaintiff’s
motions to vacate the summary judgment to combine all challenges to
Ordinance 2017-51 as required by the entire controversy doctrine.
50. An appeal of the 2018 CAFRA Permit and the denial of an
adjudicatory hearing is also pending in the Appellate Division. Since
the NJDEP did not have the records from the 1997 CAFRA Permit that
identified the shared infrastructure in the Fairways ACP, a remand is
sought. Other errors are also addressed in that pending appeal.
51. An appeal of the plan endorsement by the NJDEP is also
pending in the Appellate Division.
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FIRST COUNT
VALIDITY OF GDP APPROVAL
52. Plaintiff repeats and realleges the statements contained in
the Parties and Background Sections of this Complaint and incorporates
them herein as if set forth at length.
53. There are required findings of the MLUL and the Township
planned development ordinance that are necessary for approval of a
GDP. Parke failed to meet these requirements.
54. Public hearings took place before the Planning Board on the
subject application. At these hearings, interested parties presented
evidence to the Board regarding the eligibility and the criteria for
GDP approval and addressing open space, environmental, stormwater and
topographic characteristics of the property. The Association
addressed the need to conduct a fiscal impact analysis and to preserve
the open space of the Fairways ACP. In particular, the Association
identified significant defects in the traffic plans, the stormwater
management plan and the unreasonable adverse impacts from the
development. These issues were repeatedly brought to the attention of
the Planning Board.
55. The purpose of a GDP is to serve as a planning tool that
assesses the entire impact of development. Once granted, it vests the
property with zoning rights that cannot be changed. The applicant has
the burden of proof to satisfy the planned development requirements of
the MLUL and Township ordinances. Several requirements must be
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demonstrated in order to grant a GDP. It is the applicant’s burden to
present these proofs.
56. The GDP application contains contradictory, uncertain and
ambiguous statements. Regarding the critical question of compliance
with zoning requirements, the review letter of the Planning Board
engineer states that “the applicant’s engineer has confirmed that no
bulk variances are being sought.”
57. The Fairways Association presented testimony to show that
approximately 20 percent of the buildings require significant front
yard setback variances. In addition, there are the variances for
structures in the perimeter setback, including parking lots and storm
water management basins.
58. The UDO allows basement apartments with requirements for
access and other features. The approval violates the MLUL and Section
18-606 of the UDO, since the plans do not show total density but
instead excluded the basement apartments.
59. The GDP application did not include the basement apartments
in the application. Parke took the position that the future owners of
the duplex houses will have the right to construct such basement units
in the future. Because the applicant did not account for basement
apartments, any additional variances required for parking and other
related improvements are not known.
60. The GDP contradicts the Township’s long-term planning goals
documented in several adopted plans including the 2009 and 2013 Smart
Growth Plans that designate the ACP Golf Course as recreation and open
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space. Part of the reason why the Smart Growth Plans were approved
was that there was balance between open space and areas where growth
would be centered. The GDP removes a large portion of recreation and
open space and proposes growth in an area that is outside of a
“center” and on a property not envisioned and planned for future
growth and development.
61. Instead, at some unknown time, the Township amended the UDO
to define yard areas of individual houses as open space. Thus, open
space in the Parke development consists of individual yard areas. The
GDP uses yard areas as open space and to satisfy the perimeter buffer
requirement. As a result, future homeowners cannot place customary
accessory structures in their yards. No sheds, fences, pools, play
equipment, patios, decks and other customary recreation improvements
are permitted.
62. The GDP calculates the private yards in the residential
component of the ACP as “open space,” which penalizes homeowners
desiring to add customary yard improvements such as a deck or patio
and which negatively affects their property values. The use of yard
areas as open space also affects tax assessments.
63. The proposed use is contrary to the Fringe Planning Area in
which the site is located. The GDP will dramatically increase density
for the overall Fairways ACP and eliminates the required open space.
64. The proposals for maintenance and conservation of the
common open space were not established and do not satisfy the MLUL
requirement that the open space protections must be reliable and that
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the amount, location, and purpose of the common open space are
adequate.
65. It was unclear if any portion of the ACP Golf Course would
remain and how they would be serviced by the remaining clubhouse
building that separates the golf course from the proposed development.
66. The MLUL requires that the physical design of the proposed
development provide for public services, control vehicular and
pedestrian traffic, assure adequate amenities of light, air,
recreation and visual enjoyment. The site will be filled up to
twenty-five feet and will be enclosed in a series of retaining walls
extending almost four miles to accommodate the development and
basement apartments.
67. The engineer for the Fairways Association demonstrated that
the height of the buildings with the fill will have negative impacts
on light, air and visual enjoyment. He testified that the stormwater
management plan, based on the submission to the NJDEP in connection
with the CAFRA application, failed to include non-structural
strategies but instead proposed highly engineered and susceptible
plans.
68. The Planning Board engineer declined to review and report
on the stormwater plan as to whether it was feasible but deferred
review until a future site plan application.
69. Parke did not quantify the amount of fill, explain the
number of trucks necessary to deliver the fill, the route of these
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trucks and how they will impact on already unacceptable traffic
conditions.
70. The traffic engineer for the Association testified that the
traffic improvements proposed by Ocean County and the State Department
of Transportation (“NJDOT”) were designed prior to the 2017 Ordinance
and did not consider the additional 1,000+ units to be constructed on
the ACP Golf Course. Further, the County improvements to Cross Street
extend only go to Augusta Boulevard and not to the main entrance of
the development.
71. Parke did not show improvements to the road system but took
advantage of improvements planned by the NJDOT and the County. In
accordance with sound traffic engineering, to calculate the impact on
that level of service, the developer should have determined the level
of service before the development and with the planned NJDOT and
County improvements in place. Even with crediting proposed
improvements by the County and the NJDOT, the levels of service are
significantly deteriorated from existing unacceptable conditions and
in many instances are level of service “F,” which is failure. Level
of service “F” is reported by the traffic engineers for the Parke and
the Association. The Resolution also finds that the level of service
will be “F,” i.e. failure.
72. When the Township adopted the 2017 Master Plan and UDO
amendment to develop the golf course, it required that the level of
service for traffic be at level of service “C” before any development.
The Parke GDP violates this requirement.
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73. There are numerous questions about the validity of the 2017
Master Plan and UDO, including conflict of interest. If the 2017
Ordinance is invalid, these entire proceedings must be nullified.
74. Augusta Boulevard is owned by the Association and the
easement granted to the golf course restricts its use to golf course
use and two dwellings associated with the golf course. The approved
GDP allows access to the residential development from Augusta
Boulevard and violates the rights of the Association.
75. The UDO requires that a GDP include an environmental
inventory including a general description of the vegetation, soils,
topography, geology, surface hydrology, climate and cultural resources
of the site existing man-made structures or features and the probable
impact of the development on the environmental attributes of the site.
This was not addressed.
76. The UDO requires a community facility plan indicating the
scope and type of supporting community facilities. This was not
addressed. Witnesses for Parke did not explain how the community
buildings will be used and how the clubhouse will be used, since it is
separated from the nine-hole golf course on the former municipal land
fill.
77. Although the UDO requires a housing plan outlining the
number of housing units to be provided and the extent to which any
housing obligation will be fulfilled, there is no affordable housing
proposed, because the 2017 Ordinance allowing more than 1,000 units
was adopted after the Township’s housing plan.
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78. The UDO contains extensive provisions for a fiscal report
describing the anticipated demand on municipal services to be
generated by the planned development and any other financial impacts
to be faced by municipality or school districts as a result of the
completion of the planned development. The fiscal report shall also
include a detailed projection or property tax revenues that will
accrue to the County, municipality and school districts according to
the timing schedule required for the GDP.
79. The fiscal impacts were required to be thoroughly
evaluated. Despite repeatedly requesting the opportunity to cross-
examine the author of the fiscal impact study, the Board refused to
require the author of the report to testify.
80. As a result, the GDP did not address many critical fiscal
impacts, including, but not limited to, the effect on property values
of homeowners in the Fairways, whose yard areas are used to satisfy
open space requirements.
81. The Fiscal Impact report did not account for basement units
and used outdated information. The Fiscal Impact Report did not
account for the full impact of the proposed development, did not
provide a correct family size and did not use comparable information.
The report provided an unreliable estimate of school age children and
education costs. The report did not address the cost of inspection of
the stormwater management system that is a municipal responsibility
under the MS4 stormwater regulations.
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82. The report does not provide a consistent and reliable
source of information to evaluate the total population and fiscal
impacts that will result from approval.
83. The GDP renders the Fairways ACP as non-conforming due to
removing the open space and recreation requirements. This proposed
change is not consistent with the UDO and Zone Plan, Master Plan, and
previously approved GDP.
84. The applicant was also required to show that the terms and
conditions protect the interests of the public and the residents,
occupants, and owners of the proposed development are adequate.
85. Parke had the burden to show that the proposed planned
development will not have an unreasonably adverse impact upon the area
in which it is proposed to be established. Parke failed to show that
the elimination of more than 100 acres of open space and recreation,
contrary to Township planning documents and Smart Growth Plans, would
not have an adverse impact. Parke failed to explain how the traffic
impacts will not have an unreasonable adverse impact, especially since
Ordinance 2017-51 required a level of service “C” to be achieved
before the development is allowed. The ACP Golf Course is the last
largest remaining portion of open space in this area and it was
required to be saved as open space and storm water recharge area for
the Fairways ACP.
86. The almost four miles of retaining walls are partially
located in Tree Save Areas that are part of the 1997 CAFRA Permit.
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The canopies of the trees extend past the edges of the retaining walls
and will be negatively affected. This is not addressed.
87. There will be negative visual impacts of a wall of
buildings situated at or above the same level as the dwellings in the
Fairways and other negative effects.
88. The MLUL and the UDO requirements for a GDP include a
proposed timing schedule in the case of a planned development whose
construction is contemplated over a period of years, including any
terms or conditions which are intended to protect the interests of the
public and of the residents who occupy any subsection of the planned
development prior to the completion of the development in its
entirety.
89. This requirement is not satisfied in numerous respects,
including the failure to coordinate roadway improvements with the
NJDOT and the County, the failure to consider the impacts of earthwork
and trucks that will be necessary to travel in and out of the site to
deliver fill and the failure to consider the requisite amendments to
the CAFRA Permit. Numerous other considerations are absent from the
approval.
90. The UDO requires a stormwater management plan setting forth
the proposed method of controlling and managing stormwater on the
site.
91. Geoffrey Goll, P.E., a stormwater engineer with Princeton
Hydro who is highly knowledgeable and reputable, identified numerous
deficiencies in the stormwater plan. He had submitted comments to the
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NJDEP regarding the CAFRA application, but at that time, the NJDEP
records regarding stormwater were missing. As a result, the NJDEP was
unaware that the residential component and the golf course shared
infrastructure.
92. In July 2019, after location of a stormwater report from
the 1996 CAFRA Permit during discovery in the Ordinance Litigation,
Mr. Goll discovered that the ACP Golf Course and the residential
community were designed as one development site.
93. In his testimony before the Planning Board, Mr. Goll
demonstrated that the 1996 stormwater management analysis and design
of the Fairways ACP prepared by Lynch, Guiliano & Associates, PA, the
original civil engineers for the Fairways ACP, discharged stormwater
from the residential development into the ACP Golf Course. The entire
Golf Course was identified in the report as a recharge area and
admitted into evidence as an exhibit.
94. The 1996 report reveals that the stormwater management
system for the residential area is combined with the golf course and
that 75 percent of the 100-year storm discharges to the golf course
through a 48-inch pipe. The function of this 48-inch pipe was not
described correctly in the stormwater plans for the Parke submitted to
the NJDEP in connection with the GDMS CAFRA applications and accounted
95. Photographs show that Augusta Holdings arranged to
discharge water to the Tree Save Areas. These photographs reveal that
the ACP Golf Course is often flooded and does not drain easily.
24
96. Mr. Goll also pointed out that it is not possible to
determine if the stormwater system is feasible because of the absence
of fundamental information essential even to general plans. He
testified that There is insufficient information to determine the
feasibility of the stormwater drainage system, the routing of networks
and watersheds, and the depth of the bottom of the infiltrative
surface to the seasonal high groundwater level. A stormwater system
is not feasible if the depth to groundwater is not determined and if
the drainage in the watersheds is not addressed.
97. As each of the homes will have its own dry well, there will
be several hundred dry wells that must function for the stormwater
system to work. The Township must maintain to comply with its MS4
permit under the stormwater regulations. The Township is required by
the MS4 permit to enforce the operation and maintenance of the
proposed 556 seepage pits. This not addressed.
98. Thus, for the 556 seepage pits to be constructed, there is
no evidence that they will function and are feasible. The pits are
located in travelled areas of the individual lots. Further, there is
no stormwater management operation and maintenance plan outlining who
or what entities will be responsible for maintaining these seepage
pits, as well as the maintenance of the stormwater management
detention and recharge basins.
99. Mr. Goll explained that if recharge fails, there is nowhere
for the water to go. There are no overflow drainage pathways outside
of homes to allow water to safely pass off the individual lots.
25
Numerous other deficiencies were noted and not addressed. These are
fundamental elements of a plan necessary to determine if the plan is
feasible.
100. Mr. Goll described the stormwater management system as
highly engineered without protections and redundancies in the event of
failure. He explained that there are more than four miles of walls
enclosing the drainage basins that will be costly to maintain and that
require encroachment onto neighboring properties and the tree save
areas to be installed. These overriding general concerns are not
addressed and the Planning Board engineer did not review the plans.
101. After hearing the testimony of Mr. Goll and reviewing the
1996 stormwater report revealing the extent of discharge from the
Fairways residential component to the ACP Golf Course, Dynamic
Engineering, the Parke engineers, recognized the need to revise the
plans for the CAFRA Permit and those pending before the Board. The
engineer presented revised plans eliminating approximately forty units
in order to accommodate the drainage flow. Dynamic presented these
revised plans without prior filing with the Planning Board and with
limited information and restricted ability to review and question.
The revisions proposed to enlarge the stormwater basins to accept the
flow from the residential component of the Fairways ACP not previously
identified by Dynamic or the NJDEP. The Dynamic engineer conceded
that the drainage flow from the 48-inch pipe requires more than fifty
acre-feet to accommodate the discharge. Instead of draining to the
ACP Golf Course, identified in the 1997 CAFRA Permit as the recharge
26
area for the Fairways ACP, the flow would be confined into the walls
basins that predominate on the site.
102. The Planning Board engineer quoted from the CAFRA Permit
and explained that the NJDEP must approve the modification. The
modification has significant implications and changes to the GDP but
the Resolution erroneously concludes that NJDEP approval may not be
required and there is no condition of approval.
103. Under the approved GDP, Parke will be managing a portion of
the stormwater from the residential component of the Fairways ACP.
Permission from the Fairways Association and individual property
owners is required to modify the drainage system, a consent that will
not be easy to obtain. Accommodating 75 percent of the 100-year storm
is required and is not feasible.
104. Despite these identified deficiencies, the Planning Board
engineer declined to review the stormwater plan and did not issue a
report to address whether the stormwater and other engineering is
feasible. The Planning Board refused to allow cross-examination of
the Planning Board engineer, violating an established right under the
MLUL.
105. The record and the resolution are deficient and do not
reflect whether the stormwater management system meets the
requirements of the Township’s stormwater management regulations,
whether the plan is feasible and whether the approval will have an
unreasonable adverse impact on the area and the Fairways community.
27
106. The UDO requires a municipal development agreement between
the municipality and the developer relating to the planned
development. Only a boilerplate document was filed but the Board, its
consultants and the Board did not address the terms of the developer’s
agreement or consider it during any public hearing process. There is
no explanation of improvements to be completed by the developer, since
they appear to be deferred until the final site plan. The agreement
lacks specificity, does not address mandatory traffic improvements,
expenses of stormwater and other customary provisions of a developer’s
agreement.
107. Despite these deficiencies, on March 3, 2020, the Planning
Board adopted a Resolution approving the GDP for the ACP Golf Course.
In granting the GDP approval, the Planning Board failed to satisfy the
requirements of the MLUL for GDP approval, failed to comply with the
requirements in the UDO for GDP approval for planned development and
failed to honor the open space rights of the residents of the Fairways
ACP.
108. The Planning Board attorney interfered and obstructed the
presentation by the Fairways Association and imposed unreasonable
requirements and evidentiary rulings.
109. Parke provided the Planning attorney with transcripts of
the hearings. Despite requests to make these transcripts part of the
record of the Planning Board, this has not occurred.
110. The Planning Board failed to impose conditions necessary to
comply with the GDP requirements of the MLUL and the UDO, failed to
28
protect the Fairways ACP and the public good and further failed to act
in accordance with law.
111. The resolution of the Planning Board is unreasonable,
erroneous, and not based on facts in the record. The Resolution lacks
substantial credible evidence to support the findings and conclusions.
112. In addition, this Complaint challenges extensive procedural
and substantive defects in the GDP approval. These include, but are
not limited to, refusal to allow cross-examination of the Planning
Board engineer, refusal to require the author of the fiscal report to
testify, refusal to admit evidence and other errors.
113. The Resolution fails to address identified variances.
114. The decision of the Board as reflected in the Resolution is
inadequate in that it does not recite satisfaction of, or compliance
with, the conditions of the conditional use.
115. The Resolution lacks sufficient findings to assure
compliance with the Township’s stormwater management requirements and
fails to address the environmental impacts of the extensive
restructuring and filling of the ACP Golf Course, the construction of
almost four miles of retaining walls that range up to 20-25 feet in
height and the impact on tree save areas. The Resolution does not
address the required consent to modify the stormwater system that
drains to the ACP Golf Course.
116. The action of the Planning Board in granting the approvals
in question is invalid, unlawful, ultra vires and void, and is
otherwise arbitrary, capricious and unreasonable.
29
WHEREFORE, Plaintiff demands judgment as follows:
a. Invalidating the GDP approval granted by the Planning Board
to The Parke at Lakewood, LLC;
b. Declaring the decision of the Board to be arbitrary,
capricious and unreasonable and otherwise void and ultra vires;
c. Awarding Plaintiff costs of suit, including transcript
costs; and
d. For such other relief that the Court deems equitable and
just.
SECOND COUNT
VALIDITY OF THE DEFINITION OF OPEN SPACE AND

PLANNED DEVELOPMENT IN THE UDO
the Parties and Background Sections of this Complaint and allegations
contained in the foregoing count and incorporates them herein as if
set forth at length.
118. At some unknown time after adoption of Ordinance 2017-51,
the Township adopted a definition of “open space” that allows yard
areas for individual lots to be included in open space calculations.
119. Plaintiff has sought the history of adoption of this
definition, which violates the MLUL and the ACP Ordinance, as well as
the history of planning in Lakewood Township.
120. If this definition is valid, it results in allowing the lot
areas of houses in the Fairways ACP to be used to satisfy the open
space requirements of the ACP Ordinance.
30
121. There is no indication that there were any planning studies
or analysis to support the adoption of this amended definition.
122. 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.” The MLUL further provides at N.J.S.A.
40:55D-16 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.
123. The definition of “open space” to include individual lots
is not consistent with the land use element of the Master Plan and the
MLUL.
124. The Township has not responded to a request for public
records. Upon receipt of the minutes of the Township Committee
meeting when the amendment was adopted, an amended complaint will be
filed to address whether the definition is consistent with the land
use element and whether the Township adopted a resolution of reasons
supporting the deviation from the land use element of the Master Plan.
125. The definition of “open space” to include private lot areas
violates the MLUL and is facially and presumptively invalid. The
31
definition is not effective, since it violates the express
requirements of the MLUL and case law regarding open space and
consistency with the land use element of the master plan and also
offends the sound planning principles of the MLUL.
126. The definition of “open space” is arbitrary, capricious and
unreasonable. The validity of this definition is a matter of
important public interests rather than private interests that require
adjudication. The definition of “open space” causes a continuing harm
to the Fairways ACP and to the environment.
127. The classification of the developed as a planned
development is not consistent with the MLUL. The GDP development does
not qualify as a planned development of any type.
a. Declaring that the definition of “open space” in the
Lakewood UDO is void and of no effect;
b. Declaring that the Parke GDP does not qualify as a planned
development.
c. Awarding Plaintiff’s attorney’s fees and costs of suit; and
d. For such other relief as the Court deems just and
equitable.
THIRD COUNT
INVALIDITY OF ORDINANCE DUE TO FAILURE TO COMPLY WITH

N.J.S.A. 40:55D-62a
32
contained in the foregoing counts and incorporates them herein as if
129. 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.”
130. The definition of “open space” in the UDO is not drawn with
reasonable consideration to the character of the district and does not
encourage the most appropriate use of land.
131. The definition of “open space” in the UDO contravenes the
stated purpose of the State Plan endorsement, the MLUL and case law
intended to protect open space.
132. The definition of “open space” in the UDO is contrary to
the purposes of the MLUL, inconsistent with sound planning principles
and is arbitrary, capricious and unreasonable.
133. The definition of “open space” in the UDO is contrary to
fundamental principles of the MLUL and zoning and has no discernible
planning reason other than to accommodate the economic interests of
the owner and developers of the ACP Golf Course.
134. The definition of “open space” in the UDO renders the
Fairways ACP a nonconforming use and deprives the lot owners in the
Fairways ACP of private property without just compensation.
135. The definition of “open space” in the UDO exceeds the
discretion of the governing body and the limitations placed on
municipalities in developing a local zoning plan.
33
a. For a declaration that the definition of “open space” in
the UDO is void and of no effect;
b. Awarding Plaintiff attorney’s fees and costs of suit; and
c. For such other relief as the Court deems just and
equitable.
FOURTH COUNT
INVALIDITY OF ORDINANCE DUE TO FAILURE

TO PROVIDE NOTICE OF THE ORDINANCE
contained in the foregoing counts and incorporates them herein as if
137. N.J.S.A. 40:55D-62.1 requires notice to property owners
within 200 feet of property subject to a change in zone classification
or boundary. Notices pursuant to this section of the MLUL are
required to be given to all owners within 200 feet of the change.
138. Notice pursuant to this section must state the street name,
common name or other identifiable landmark and the lot and block
number. The notice must be sent to property owners shown on the
current tax duplicate.
139. The definition of “open space” in the UDO dramatically
alters the intensity of development and permitted uses in the R-40
zone and in the Fairways ACP. Notice to properties within 200 feet
was required and not provided.
34
140. Public notice of hearings to amend ordinances is
jurisdictional and deviations render the action a nullity. At this
time, Plaintiff is attempting to obtain records of notice provided by
the Township.
141. On information and belief, the Township failed to provide
notice of the change to the definition of “open space” in the UDO
zone.
142. The Township’s failure to provide notice renders the
definition of “open space” in the UDO void, invalid and unsupported by
applicable law, rendering it to be a nullity.
a. Invalidating the definition of “open space” in the UDO
Ordinance for failure to provide required notice pursuant to N.J.S.A.
40:55D-62;
b. Invalidating the definition of “open space” in the UDO for
failure to provide published notice of second reading;
c. Declaring that Ordinance 2017-51 as applied to the ACP Golf
Course is not a planned development;
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
OPEN PUBLIC RECORDS ACT VIOLATIONS
35
the Parties and Background Sections and previous Counts of this
Complaint and incorporates them herein as if set forth at length.
144. Throughout the course of the GDP application and in
connection with other pending litigation, Plaintiff requested records
pursuant to OPRA.
145. The custodian of records rejected many of the OPRA requests
as overbroad, despite the fact that the requests are for specifically
identified information and specific time frames.
146. The requests clearly sought identified records in
connection with the GDP application and implementing ordinances. The
requested records are reasonably identifiable, and the request is not
overbroad or improper under existing case law.
147. Counsel has written to the custodian to request
reconsideration, but the custodian has still not provided the
requested documents.
148. Requested documents not produced from the custodian either
under OPRA and the common law is in violation of OPRA.
149. There is no indication that the Township conducted a
meaningful search for records or that all records in the Township’s
possession have been provided. As such, the Township has improperly
denied Plaintiff’s OPRA and common law record requests.
150. This Court has jurisdiction pursuant to N.J.R. 4:69
governing actions in lieu of prerogative writs, N.J.S.A. 47:1A-6 et
seq. and the common law.
36
151. Plaintiff is entitled to requested records under both OPRA
and the common law.
152. Disclosure of the records advances and furthers a public
interest, i.e., having the Township turn square corners in its dealing
with the public.
a. Ordering the Township and the custodian to provide all
records in their possessions responsive to the requests;
b. Awarding Plaintiff reasonable attorney’s fees and costs of
suit pursuant to N.J.S.A. 47:1A-6;
c. Awarding Plaintiff reasonable attorney’s fees and costs of
suit pursuant to the Common Law; and
d. For such other relief as the Court deems equitable and
just.
SIXTH COUNT
VIOLATION OF NEW JERSEY CIVIL RIGHTS ACT
the Parties and Background Sections and previous Counts of this
Complaint and incorporates them herein as if set forth at length.
154. The GDP approval by the Planning Board violates open space
mandates of the MLUL for planned development and the ACP Ordinance
that created the Fairways ACP. The ACP Golf Course is documented as
open space for the Fairways ACP.
155. The New Jersey Civil Rights Act (“CRA”) guarantees that
citizens are entitled to protection of the statutes enacted by the
37
Legislature of the State of New Jersey and provides a cause of action
in the event that there is a violation of State law.
156. The MLUL guarantees the preservation of open space created
in a planned development. N.J.S.A. 40:55D-39c(2) provides that
planned development ordinances must require that “common open space
resulting from the application of standards for density, or intensity
of land use, be set aside for the use and benefit of the owners or
residents in such development” subject to compliance with creation of
an open space entity as set forth in N.J.S.A. 40:55D-43.
157. N.J.S.A. 40:55D-39c(3) requires the ordinance to set forth
“how the amount and location of any common open space shall be
determined and how its improvement and maintenance for common open
space use shall be secured” subject to compliance with creation of an
open space entity as set forth in N.J.S.A. 40:55D-43.
158. 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. If the open space is not dedicated
to the municipality or made available to public use, it must be
dedicated to an organization to protect the open space. If the
organization is dissolved, the land must be dedicated to the
municipality.
159. N.J.S.A. 40:55D-45 requires that the planning board must
make certain findings and conclusions when approving a planned
development. Among these requirements is that the maintenance and
38
conservation of common open space must be reliable and adequate.
N.J.S.A. 40:55D-45b.
160. N.J.S.A. 40:55D-45.1a prohibits ordinances that allow
development on the open space created in a planned development and
requires that the “planned development shall be developed in
accordance with the general development plan approved by the planning
board notwithstanding any provisions of P.L. 1975 c. 291 (C. 40:55D-1
et seq.) or an ordinance or regulation adopted pursuant thereto after
the effective date of the approval.”
161. 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.”
162. N.J.S.A. 40:55D-65c also addresses the adoption of
ordinances allowing planned development, the required findings and the
mandates to assure that open space will be preserved.
163. The ACP Ordinance permits a planned development in what was
formerly a zone requiring a two-acre minimum lot area. The area is
now in an R-40 Zone requiring a minimum lot area of 40,000 square
feet. The ACP Ordinance permits residential development at 4.5
dwelling units per acre. In exchange, the ACP Ordinance requires 50
percent open space.
164. Section 17.16r of the ACP Ordinance sets forth the
procedures for approval of an ACP as a planned development with a
mandated a general development plan (“GDP”). The ACP Ordinance
39
mandates the preparation of a GDP to insure that the open space in the
ACP is permanently protected.
165. The Fairways ACP was approved and developed as a planned
development pursuant to the MLUL and the ACP Ordinance and as a
comprehensive whole with the ACP Golf Course. The 1997 Resolution
recites that the Fairways ACP complies with the planned development
provisions of the ACP Ordinance.
166. The GDP and the DCR required by the ACP Ordinance cannot be
located in Township records.
167. The Township of Lakewood and the Lakewood Township Planning
Board violated the CRA by failing to protect open space in the ACP.
168. The Township has engaged in a pattern and practice of
failing to protect open space in communities designed and approved to
have such open space.
169. The Township and the Planning Board have violated the CRA
by adopting the 2017 Master Plan and 2017 Ordinance to allow high-
density, residential development on land created and approved as open
space for the Fairways ACP.
170. The Township and the Planning Board have violated the
rights of the Fairways Association and its members by allowing private
yard areas on individual, single-family lots to be used to calculate
open space.
171. The Township and the Planning Board have violated the
rights of the Fairways Association and its members by modifying,
40
disconnecting and otherwise interfering with the drainage rights of
the Fairways Association and its residents.
172. The Township violated the CRA by allowing summary judgment
to be entered that invalidated the traffic condition applicable to
Ordinance 2017-51. The Township failed to identify the planning
reasons why the condition was placed in the ordinance and failed to
defend the validity of the ordinance.
173. The Township violated the rights of the Association by
allowing the Augusta Litigation to proceed without notifying the
Association as required by the entire controversy doctrine.
174. The Township violated the rights of the Association and the
residents of the Fairways ACP by failing to announce or notify the
public that the condition of Ordinance 2017-51 requiring traffic
improvements before the use is effective was invalidated.
175. The approval of the GDP violates the rights of the Fairways
Association and its residents by allowing Parke to have secondary
access to Augusta Boulevard, in violation of the terms of the
easement.
176. The Township fails to retain records as required by the
Records Retention Act. This failure has caused the Association to
engage in extensive discovery and incur countless expenses to locate
information that proves that the ACP Golf Course is the required open
space of the Fairways ACP.
41
a. Declaring that the Township violated the CRA by adopting a
definition of “open space” that violates the MLUL and the prior
ordinances and planning documents of the Township;
b. Declaring that the Township violated the rights of
residents in the Fairways ACP to open space in the Fairways ACP.
c. Declaring that the Township failed to defend the validity
of the Ordinance 2017-51 regarding protection of the mandated open
space in the Fairways ACP;
d. Declaring that the Township violated the rights of the
Association and its residents for allowing the Parke GDP to remove its
protected open space and its function as the recharge facility for
stormwater from the Fairways residential development;
e. Awarding Plaintiff attorney’s fees and costs of suit; and
f. For such other relief as the Court may deem just and
equitable.
SEVENTH COUNT
IMPOSING A CONSTRUCTIVE TRUST AND EQUITABLE SERVITUDE
177. Plaintiff Fairways repeats and realleges 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.
178. A constructive trust and an equitable servitude are
equitable remedies that may be imposed to prevent an “unjust
enrichment where there is a finding that there was some wrongful act,
usually though not limited to fraud, mistake, undue influence or
42
breach of a confidential relationship, which has resulted in a
transfer of property.” See Thieme v. Aucoin-Thieme, 227 N.J. 269,
288-289 (2016) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,
110 (2007).
179. The planned development provisions of the ACP Ordinance and
the MLUL govern the Fairways ACP. The Planning Board found that the
Fairways ACP complied with the provisions of the ACP Ordinance as a
planned development and would meet all conditions of the approval.
180. The 1997 Resolution runs with the land and binds the
Fairways ACP to comply with the planned development provisions of the
ACP Ordinance and the MLUL by recording a GDP to protect the ACP Golf
Course as open space and to record a DCR to implement the terms of the
1997 Resolution.
181. GDMS and its representatives requested a zoning change for
the ACP Golf Course to develop the land for high-density housing.
182. On information and belief, GDMS failed to determine the
land use constraints and requirements applicable to the ACP Golf
Course and the legal obligation to protect the ACP Golf Course as open
space pursuant to the planned development provisions of the MLUL, the
ACP Ordinance and the 1997 Resolution.
183. To implement the requirements of the ACP Ordinance and the
1997 Resolution and as mandated by the MLUL, a constructive trust and
equitable servitude must be placed on the ACP Golf Course until the
owner of the ACP Golf Course acknowledges in a document called a GDP
that the ACP Golf Course is open space.
43
184. Augusta Holdings and Parke must record a declaration of
covenants and restrictions to protect and preserve the open space
created as part of the ACP.
185. The purpose of the constructive trust and equitable
servitude is to provide remedies to protect the ACP Golf Course from
development and enforce the requirements of the MLUL, the ACP
Ordinance and the 1997 Resolution.
186. Augusta Holdings acquired the ACP Golf Course in disregard
of the requirements of the MLUL, the ACP Ordinance and the 1997
Resolution. Augusta Holdings, GDMS and the Parke seek to develop the
ACP Golf Course without regard to the land use and open space
limitations applicable to the ACP Golf Course.
WHEREFORE, Plaintiff Fairways demands judgment as follows:
a. Declaring that the GDP approval and the definition of “open
space” violates the Fairways ACP and illegally permits development on
land that was required by the ACP Ordinance to be restricted against
development;
b. Placing a constructive trust and equitable servitude on the
ACP Golf Course until a DCR as required by the ACP Ordinance is
recorded to protect and preserve the open space created as part of the
ACP;
c. Awarding Plaintiff attorney’s fees and costs of suit; and
d. For such other relief as the Court deems just and
equitable.
DEMAND TO PRESERVE EVIDENCE
44
All Defendants are hereby directed and demanded to preserve all
physical and electronic information pertaining in any way to
Plaintiff’s causes of action and/or prayers for relief, to any defense
to same, and pertaining to any party, including, but not limited to,
electronic data storage, closed circuit TV footages, digital images,
computer images, cache memory, searchable data, emails, spread sheets,
real estate transactional records, zoning records, advertisements of
whatever nature, scale models, employment files, memos, text messages
and any and all online social or work related websites, entries on
social networking sites (including, but not limited to, Facebook,
Twitter, MySpace, etc.), and any other information and/or data and/or
documents which may be relevant to any claim or defense in this
litigation.
Failure to do so may result in separate claims for spoliation of
evidence and/or for appropriate adverse inferences.
DESIGNATION OF TRIAL COUNSEL
Michele R. Donato is hereby designated as trial counsel for the
Plaintiff.
Michele R. Donato
Dated: April 17, 2020 ____________________________
Michele R. Donato
Attorney for Plaintiff
CERTIFICATION
Pursuant to Rule 4:5-1, I hereby certify that to the best of my
knowledge, the within action is the subject of multiple actions
entitled Fairways at Lake Ridge Homeowners Association, Inc. et al. v.

45
Lakewood Township Planning Board et al., Docket No. OCN-L-71-18; The
Fairways at Lake Ridge Homeowners Association, Inc. v. Augusta
Boulevard Associates, LLC et al., Docket No. OCN-C-54-19; Accardo et
al. v. The Kokes Family et al., Docket No. OCN-L-1268-18; Augusta
Holdings LLC v. Township of Lakewood et al., Docket No. OCN-L-147-18,
Appellate Docket No. A-3228-18; In the Matter of the Challenge to the
Denial of the Request For Adjudicatory Hearing Regarding Mordechai
Sternstein c/o GDMS Holdings, LLC CAFRA Individual Permit, Freshwater
Wetlands General Permit No. 6, and Water Quality Certificate, Permit
No. 1500-04-0005.3 APL1700001 Challenged by Fairways at Lake Ridge
Homeowners Association, Inc. dated April 12, 2019, Docket No. A-
003561-18; In the Matter of the Challenge to the Decision of the New
Jersey Department of Environmental Protection, Land Use Management,
Land Use Regulation Program entered On February 2, 2019 and March 6,
2019 Regarding Notice of Administrative Changes and Notice of
Acceptance of New and Changed State Plan Policy Map, etc., Docket No.
A-002980-18, but is not the subject of any other pending action or
arbitration proceeding, now or contemplated. It appears that the
parties in the Accardo litigation should be joined as parties and a
motion to that effect will be filed.
Plaintiff will file a motion to consolidate this action with
Docket No. OCN-L-71-18 and Docket No. OCN-C-54-19, and Docket No. L-
147-19 (if vacated by the Appellate Division).
I certify that confidential personal identifiers have been
redacted from documents now submitted to the court and will be
46
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 Plaintiff has
ordered the transcripts of the proceedings before the Planning Board
for the within matter.
Dated: April 17, 2020 Michele R. Donato

____________________________
Michele R. Donato
Attorney for Plaintiff
47

Subsequent Complaint Filed by The Fairways at Lake Ridge vs. Lakewood TOwnship and GDMS Holdings

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Subsequent Complaint Filed by The Fairways at Lake Ridge vs. Lakewood TOwnship and GDMS Holdings

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OCN-L-001000-20 04/17/2020 3:30:27 PM Pg 1 of 47 Trans ID: LCV2020732160

Michele R. Donato, Esq.

SUPERIOR COURT OF NEW JERSEY

Plaintiff, Fairways at Lake Ridge Homeowners Association, Inc.

(“Fairways Association” or “Association”), with offices located at 3

Fairways Boulevard, in the Township of Lakewood, County of Ocean, and

State of New Jersey, by way of Complaint against the Defendants,

This Complaint challenges the decision of the Lakewood Township

Planning Board (“Planning Board”) granting general development plan

(“GDP”) approval to The Parke at Lakewood, LLC (“Parke”) and includes

a cause of action against the Township of Lakewood (“Township”) under

the Open Public Records Act (“OPRA”). Due to invasion of property

rights of homeowners in the Fairways ACP and elimination of the open

space that is a requisite element of the Fairways ACP, the Association

1. Plaintiff Fairways Association is a homeowners’ association

consisting of approximately 1,124 houses developed in accordance with

Ordinance 93-046 (“ACP Ordinance”). The rights of the Association and

denied, violated and infringed by the actions of the Defendants.

2. The Township is the governing body of the municipality and

is responsible for adoption and enforcement of the Unified Development

Ordinance (“UDO”). The Township is a public agency as that term is

3. The Defendant Lakewood Township Planning Board is a

municipal agency established pursuant to the Municipal Land Use Law

proposed amendments to the UDO and act on applications for

development, including GDP applications.

4. Parke is the applicant and proposed developer of the Parke

5. GDMS Holdings, LLC (“GDMS”) is the developer that requested

density housing. GDMS applied for and obtained approval of permits

from the New Jersey Department of Environmental Protection (“NJDEP”).

6. Augusta Holdings, LLC (“Augusta Holdings”) is the owner of

the golf course.

7. On September 23, 1993, the Township amended provisions of

its zoning ordinance to allow adult communities by adopting the ACP

Ordinance. The ACP Ordinance allows increased density as a cluster

development in exchange for the creation of open space on 50 percent

of the tract, referred to in the ACP Ordinance as the “ACP Golf

Course.” At the time of adoption of the ACP Ordinance, the Fairways

It is currently located in an R-40 zone that requires a minimum lot

area of 40,000. The Fairways ACP is permitted as conditional use

allowing residential units to be clustered in exchange for the

in connection with an ACP.

8. On December 17, 1996, the Planning Board approved the

subdivision and site plan application of Cross Street Associates, LLC

to construct the Fairways ACP as an adult community and a golf course

by resolution adopted in 1997. (“1997 Resolution”) 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.”

9. Pursuant to the ACP Ordinance, the entire tract of land

zone if part of an ACP.

requirements of the planned development in the ACP Ordinance. A

as the stormwater management feature for drainage from the residential

component of the Fairways ACP. The ACP Golf Course is designated as a

recharge area for the Fairways ACP.

11. The Fairways residential development and the ACP Golf

Course were approved by a permit pursuant to the Coastal Area Facility

Review Act (“CAFRA”) issued by the NJDEP in 1997. (“1997 CAFRA

clustered housing development.

Augusta Boulevard, located on Block 524.01, Lots 1 and 1.01.

13. The ACP Golf Course satisfied impervious coverage

requirements, other CAFRA requirements, stormwater management and

recreational needs pursuant to the 1997 CAFRA Permit consistent with