Developer Sues Brick Zoning Board Over Denial to Build on Undersized Lot, Alleges Antisemitism

A home proposed where Illinois Avenue, New Jersey Avenue and Pennsylvania Avenue meet in Brick, NJ. (Credit: Planning Document/Google Maps)

A developer and attorneys representing Brick Township’s zoning board are preparing to square off in court following the board’s decision to deny permission to build a home on what officials termed a “severely undersized lot,” claiming the board erred on both the law and was influenced by what the property owner perceived as anti-Semitic questions asked by neighbors at the board hearing.

The board, in February, rejected the application of Esther Cohen and Naomi Elkins, co-owners of the property – which does not currently have a postal address – to develop a triangular-shaped piece of land where Illinois Avenue, New Jersey Avenue and Pennsylvania Avenue come together. The two streets meet in the middle of a neighborhood between Lanes Mill and Sally Ike roads in the Herbertsville section, with the proposed single-family home having frontage on both Illinois and Pennsylvania avenues. The lot measures 4,812 square feet, however the township’s zoning ordinance requires a minimum of 9,000 square feet to build a home on a corner lot in the R7.5 residential zone, where the property is located.

The property owners are represented by Brick Township attorney Joseph Michelini. A copy of the complaint obtained by Shorebeat states the lot was carved out in 1925 as part of a fledgling community known as “Hollywood Manor” and has never been developed since. The complaint, in its substantive legal arguments, states that the board erred in determining the parcel did not qualify for a hardship variance since the property owner purchased the lot knowing it was undersized. Michelini counters that since the lot was never combined with the neighboring parcel or separated from a neighboring parcel, but has always been kept “separate and apart” since 1925. The complaint points to a statement made by the zoning board chairman at one point during the meeting indicating that the property would qualify for a hardship variance due to its irregular shape.

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The applicant sought approval to build a 1,702 square foot single family home on the 0.1 acre parcel, well below the 9,000 square feet required to construct a home in the underlying zone. The 4,812 square foot lot was not adequate to accommodate such construction, the board found. A driveway was proposed to access the home from Illinois Avenue, which would have had the potential to cause a traffic hazard since the property is located at the confluence of the three streets, an engineer’s report noted. Michelini said his client offered to move the driveway to alleviate those concerns, however the board still rejected the application.

The complaint also makes allegations of anti-Semitism against neighbors who objected to the lot’s development at the meeting. The owners of the property are both Orthodox Jewish, and according to the complaint, were wearing traditional Orthodox-style clothing at the meeting. This led to several questions from neighbors which “were perceived by Ms. Elkin’s husband as anti-Semetic.”

Example of such questions, the complaint states, include: “What kind of clients are they going to attract to the area,” and further questions as to whether or not the owners intended to live in the home themselves or rent it out.

The complaint further stated: “There was a question as to ‘What kind of family is going to want to buy a house such as this one?’ There was a comment that this was a “family neighborhood” and they wanted to “keep it that way.” Several neighbors testified that allowing the development by the plaintiffs would ‘change the character of the neighborhood.'”

Further, the complaint alleges that the zoning board’s attorney also agreed that a hardship variance could apply to the property, and testimony from his clients’ engineer and planner were unrebutted by any expert witnesses proffered by objectors. Additionally, Michelini argues that testimony as to the $20,000 purchase price of the lot – a low price, presumably due to the impression that it was unbuildable – should not have been considered by the board.

“The board was poised to grant the application with appropriate conditions but then caved to public opinion which was not based upon legitimate reasons for opposing the application,” the complaint states. “The comments from the public did not constitute a legitimate basis upon which the board should have denied the application, and were totally unsupported by expert testimony.”

The case has been making its way through the court system since it was filed shortly after the hearing. Superior Court Judge Francis Hodgson has scheduled a pre-trial conference for July 7. The board is being represented in the matter by Ronald D. Cucchiaro of Weiner Law Group, the firm which normally represents the interests of the board.

A copy of the complaint appears below this article: