Judge Hodgson's decision was "unwarranted and inequitable," and "an abuse of discretion" and contrary to case law, Hirsch's appeal brief argues.
Back on April 1, 2024, the Lakewood Township 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. Chestnut Street resident Aaron Hirsch vehemently opposed the use variance on multiple legal grounds.
As previously reported here on FAA News, back in August 2024, 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 are improved...
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 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.
In December 2024, the Zoning Board - which is obviously unhappy with all this uncomfortable exposure - 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.
The motion incredulously claimed that because of Hirsch’s lack of certification, that "obviously" means he did not order the required transcript.
Based on this technicality, Ocean County Superior Court Assignment Judge Francis Hodgson dismissed the complaint without prejudice, subject to Hirsch filing the required Certification. Hodgson also ordered Hirsch to pay the Board attorney his fees for "being to forced to file his motion."
Notably, Judge Hodgson's specific wording was that Hirsch’s omission was a “willful avoidance” of the rules and an “attempt to purposely delay this matter.”
Glaringly, however, Hodgson never actually signed an Order of the amount of counsel fees Hirsch is required to pay, thus deadlocking the litigation.
Undeterred, Hirsch filed an appeal with the New Jersey Appellate Division, asserting that the Zoning Board's heroic motion is obviously a retaliatory jab at Hirsch due to his outspoken advocacy at land use board public hearings, which is evident from the Board Attorney's subsequent remark to the Board that he believes the ruling "will tame Hirsch for some time."
Once again, the Board uncharacteristically attempted to jeopardize the appeal with a motion to dismiss based 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.
Earlier this year the Appellate Division flatly rejected the Board’s efforts.
Hirsch has now filed an Appellant’s Brief highlighting that Judge Hodgson's decision to dismiss his complaint was "unwarranted and inequitable," and "an abuse of discretion" as "the Appellate Division has repeatedly held that this is not a rigid or absolute requirement and that procedural deficiencies may be cured without dismissal."
The Brief further asserts that Judge Hodgson awarded the Board counsel fees sua sponte - stating that Plaintiff's delay in ordering the transcript and responding to informal emails “forced the Board to file a motion" - despite the fact that the Board's motion to dismiss did not even request counsel fees. "This was error. No rule, statute, or case law supports fee-shifting in these circumstances. Absent bad faith or frivolous conduct under R. 1:4-8 or N.J.S.A. 2A:15-59.1, counsel fees are not available. Plaintiff’s conduct in this matter - delaying service and failing to respond to unsolicited emails - may have been unorthodox, but it was not sanctionable," Hirsch argues.
Another glaring issue is that Judge Hodgson claimed - all in his own - that Hirsch's failure to file a certification caused a “financial prejudice” to the developer. " "Neither the Board nor the developer ever argued that Plaintiff’s omission caused them financial harm, nor was any motion for sanctions filed on that ground. Ironically, while the judge purported to protect the developer’s financial interests, he awarded counsel fees to the Board’s attorney — which in no way benefits the developer. This contradictory reasoning highlights the impropriety of the sua sponte sanction and deprived Plaintiff of his due process and any meaningful opportunity to defend against claims of financial hardship that were never actually asserted," the Brief argues.
Hirsch further contends that Judge Hodgson expressed "anti-pro se" remarks on the record, further to his detriment. "Furthermore, the trial judge's remarks during the reconsideration hearing suggest that Plaintiff was effectively penalized for representing himself pro se. The Court stated: "Before you embark on litigation and represent yourself, one of the determinations you should consider is whether you have the ability to do it and retain counsel." This sentiment, whether intentional or not, risks conveying an improper bias against pro se litigants. Plaintiff maintains that, based on his observations of similar cases litigated by counsel, a represented plaintiff would not have faced the same summary dismissal or had their good-faith misstep characterized as "delaying the litigation." The judiciary is required to fairly accommodate self-represented parties and ensure that access to justice does not depend on the ability to afford legal counsel," the Brief contends.
Based on this challenge, the appeal seeks for the case to be remanded back to the Superior Court - but to a different judge.
The Board now has 30 days to file a Respondent’s Brief.
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