In a ruling handed down late last night, the New Jersey Appellate Division denied a motion by the Lakewood Township Zoning Board of Adjustment to dismiss an appeal filed by Aaron Hirsch, a resident who challenged a development approval granted to Chestnut Equity, FAA News has learned.
The court's decision clears the way for Hirsch to proceed with his appeal on the merits, rejecting the Board’s attempt to derail the case.
Back on April 1, 2024, the Zoning Board granted a Use Variance to Chestnut Equity to construct a four-story, 74 unit multifamily residential apartment building on Route 70 near Vermont Avenue.
As previously reported here on FAA News, back in August 2024, Mr. Hirsch filed legal action in New Jersey Superior Court in Ocean County seeking to overturn the Board's approval of the application.
The pro-se complaint highlights that the developer induced the Board to approve this major development based on a gross misrepresentation of the Township's 2017 Master Plan, and more specifically, the road improvements contingency that the Planning Board worked fervently to squeeze into the master plan.
Engineer Brian Flannery testified under oath that while this site is currently located in the B-5 zone, the Township's 2017 master plan recommends that this site be rezoned to B-5A which does permit for multifamily uses - "once the traffic is fixed."
Board Chairman Abe Halberstam asked Mr. Flannery “what road improvements are required to be implemented prior to the zone changes going into effect?”
Mr. Flannery - still under oath - responded, "the master plan did not specify any specific road improvements, rather it states that multifamily development should be accessible only through Route 70 and not through Chestnut Street." He added that because the proposed development will only be right in / right out onto Route 70, with no access through Chestnut Street, the intent of the master plan is fulfilled.
This is grossly inaccurate. When the Lakewood Township Planning Board adopted the 2017 Master Plan, which rezoned many properties to permit higher density, they specifically stipulated that certain road improvements be undertaken prior to all the zone changes going into effect.
The final wording of this "road improvements contingency" states as follows:
The zoning recommendations... in the area of the Township located south of Central Avenue... are intended to be enacted... only when traffic improvement fees have been established through the township and all the following road segments have been sufficiently widened ... Cross Street, Route 9, Pine Street, James Street, Prospect Street, and Massachusetts Avenue ...
"The Board weighed heavily on Mr. Flannery's testimony when deciding to approve this major development. Accordingly, the Board's approval was induced through wilful and wanton misrepresentation," the complaint contends.
The suit demands judgment voiding the Board's approval of the application; vacating the Resolution of Approval; for costs of suit; and for any further relief as set forth by the court.
Back in December 2024, Zoning Board Attorney Jerry Dasti filed a motion to dismiss the lawsuit alleging that Hirsch's complaint "violated procedural requirements" simply because he didn't submit a certification along with the filing of the complaint that the transcripts of the Zoning Board’s public hearing had been ordered as required by a little known court rule.
Dasti credulously claimed that because of Hirsch’s lack of certification that he ordered the transcript, that "obviously" means he did not order the required transcript.
Ocean County Superior Court Assignment Judge Francis Hodgson ultimately permitted the lawsuit to proceed as long as Hirsch files the required Certification. Hodgson also ordered Hirsch to pay Dasti his fees for "being to forced to file his motion."
The heroic motion is obviously a retaliatory jab at Hirsch due to his outspoken advocacy at land use board public hearings, which is evident from Dasti's subsequent remark to the Board that he believes the ruling will tame Hirsch for some time.
Notably however, Hodgson never actually signed an Order of the amount of counsel fees Hirsch is required to pay, thus languishing the litigation.
Undeterred, Hirsch filed an appeal with the New Jersey Appellate Division.
Once again, Dasti uncharacteristically immediately attempted to jeopardize the appeal.
Even prior to filing briefs on the merits of the appeal, Dasti filed a motion to dismiss the appeal on multiple technical grounds, bizzarely claiming that “upon information and belief" Hirsch has still not ordered the transcript and further that he failed to serve the developer, Chestnut Equity, with notice of the appeal. The latter claim is especially bizzare given that no such objection was raised by Chestnut Equity itself.
Hirsch opposed the motion, arguing that the Board's "procedural claims" - that, “upon information and belief" transcripts have still not been ordered - is exactly the merits of the overall appeal, thus the motion was premature.
In a written ruling issued late last night, the Appellate Division agreed with Hirsch and denied the Board’s motion to dismiss, noting that no merits briefs had been submitted and that the motion was, in effect, a premature request for summary disposition. “[T]his matter is not ready for summary disposition because no merits briefs have been filed, and the full record has not been presented,” the Court wrote, citing GE Capital Mortgage Services, Inc. v. N.J. Title Insurance Co., 333 N.J. Super. 1, 5 (App. Div. 2000).
Notably, the Court did not even bother to expressly address the Board’s speculative claims about transcript compliance or service on Chestnut Equity - effectively sidelining those assertions as unworthy of discussion.
“The Board’s motion was an ill-fated attempt to litigate the appeal by ambush,” said one legal observer. “They tried to convert the appeal into a 10-day motion practice, forcing the appellant to rush his defense on procedural grounds. The Appellate Division wasn’t buying it.”
While the Court encouraged the parties to consider resolving the matter voluntarily, it left the door open for further proceedings once briefing is complete. Hirsch has since certified to the Appellate Division that he did order and obtain the transcript at issue, which undercuts the foundation of the trial court’s original dismissal.
For now, the appeal lives on - and the Board’s effort to shut it down without a full hearing has been definitively tossed.
It's highly unusual for the Lakewood Zoning Board to file such motions. It bears noting that the Board's motion was essentially fighting - via taxpayer funds - on behalf of the developer who didn't pay a dime. The motion filings underscore how threatened the Board feels by the weight and exposure of this lawsuit.
Finally, the biggest irony here is that the Board's initial heroic motion was grounded on claims that Aaron's procedural failure to submit a certification "delayed the litigation," - while the subsequent appeal is only causing further delays.
While Aaron is not paying for an attorney, he is paying for court costs and transcripts. Donations are welcome and appreciated. You can contact Aaron by email at Fighting4Lakewood@gmail.com.
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