Brick Zoning Denial Overturned For Single-Family Home

BRICK, NJ — A Superior Court judge has overturned a denial by the Brick Township Board of Adjustment of a proposal to build a single-family home on an undersized lot.

Judge Francis R. Hodgson Jr. issued the ruling on Nov. 12 reversing the zoning board's 2024 denial of the application by Esther Kayla Cohen and Naomi Elkins that sought to build a 1,700-square-foot home on a triangle lot bordered by Pennsylvania and Illinois avenues. The house would have had three bedrooms, 2-1/2 bathrooms, an attic, and a basement that would have had no exterior access, according to court documents.

Cohen and Elkins filed suit in March over the zoning board's decision at the board's Nov. 13, 2024, meeting that unanimously denied approval for the home construction.

According to the lawsuit, they needed a variance because the size of the lot, just over 4,800 square feet, did not meet the minimum lot size for building in the zone, where lots are required to be 7,500 square feet minimum. The lot in question was required to be 9,000 square feet minimum because it is bordered by two streets.

The application also needed setback variances because the shape of the property limited the width of the house and due to the shape of the lot.

The lawsuit alleged neighbors made several statements that were offensive to Elkins and her husband, that they perceived as being antisemitic, including statements from people who "wanted to know 'who' was going to live there."

"Such comments were particularly offensive because applicants are Orthodox Jewish persons and the husband of the Plaintiff, Naomi Elkins, was introduced at the hearing and present in Orthodox clothing at the Hearing," the lawsuit said.

"There were specific questions as to whether or not the Plaintiffs intended to live there themselves or rent it out," and about "What kind of clients are they going to attract to the area," the lawsuit said.

"Several neighbors testified that allowing the development by the Plaintiffs would 'change the character of the neighborhood,' " the lawsuit said.

The property owners next door to the lot also opposed the application, but the lawsuit notes they declined to purchase the property when it was offered to them.

The lawsuit says the resolution of denial was adopted two months after the hearing, and cited the fact that the property owners didn't try to buy the neighboring property and could have made the property large enough to meet the zoning requirements. The denial also cited a realtor's report on the property value but she didn't testify at the hearing, and that the location of the proposed driveway was unsafe.

The lawsuit said the zoning board never questioned the realtor's report during the hearing, and that the proposed driveway could be moved and that Cohen and Elkins' engineer had said he would work with the board engineer to move it to a location that satisfied the concern.

The lawsuit also said the board ignored a statement from its own attorney that said they could not consider the purchase of an undersized property as a self-created hardship on their ability to build on it, and that the board chairman, David Chadwick, acknowledged "that hardship exists when thestrict application of any zoning regulation would result in peculiar and exceptional practical difficulties or an undue hardship on the developer by reason of the narrowness, shallowness or shape of a particular piece of property."

"The Chairman specifically indicated that the Lot met the criteria of exceptional narrowness, shallowness or shape. In fact, he stated that the Lot '[c}ertainly meets the hardship definition,' " the lawsuit said.

"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 lawsuit said. "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."

In its reply to the lawsuit, the zoning board said Elkins' engineer "provided a very limited argument" about the hardship issue.

"The Board also finds that while the shape of the Property may be somewhat unusual, the Applicant failed to provide any testimony about hardship," the board's reply said.

It also said the board is not required to accept the testimony of Elkins' engineer.

“The Board was in no way obliged to agree with the opinions offered by the Applicant’s engineer/planner,” the reply said.

The reply did not directly address the allegations that the neighbors' testimony was antisemitic.

Hodgson, in overturning the denial, said in the written order that the denial was “arbitrary, capricious and unreasonable” for reasons it said he stated when he announced his decision during an Oct. 31 court hearing.

He said Cohen and Elkins “shall comply with any conditions agreed to at the Zoning Board hearing” and that their engineer should work with the zoning board’s professionals to relocate the driveway