JUST IN: AARON HIRSCH DROPS 45-PAGE COURT BRIEF DEFENDING LAKEWOOD ZONING BOARD’S DUPLEX DENIAL

The court battle over a proposed duplex in Lakewood’s Chestnut Street area is heating up.

After Superior Court Judge Francis R. Hodgson Jr. previously granted longtime land-use activist Aaron Hirsch’s motion to intervene in the lawsuit, Hirsch - who is represented pro-se - has now filed a sprawling 45-page trial brief urging the Court to uphold the Lakewood Zoning Board’s denial of the controversial application.

The litigation was filed by Chestnut Capital 7, LLC after the Zoning Board rejected its request to construct duplex residential development on property located in the B-5 Highway Business Zone, where duplexes are not a permitted use.

The developer is represented by attorney Adam Pfeffer.

At the September 8, 2025 public hearing, Hirsch was the only member of the public to testify in opposition to the application.

Board members ultimately expressed concern that allowing a duplex on the site could begin a piecemeal transformation of one of the remaining undeveloped portions of the area into duplex development.

The application received four votes in favor and three against. Because five affirmative votes are required for a use variance, the application was denied.

Chestnut Capital then filed suit asking the Superior Court to overturn that decision and remand the matter with instructions that the variance be granted.

Hirsch immediately sought intervention, arguing that as a neighborhood resident who had personally testified against the development, he had a direct interest in ensuring that the Board’s denial was vigorously defended.

Judge Hodgson granted the request.

Now the case has reached the merits.

Pfeffer recently submitted a comparatively brief trial submission arguing that the developer presented unrebutted expert testimony supporting the application and that the Board acted arbitrarily in denying it.

Hirsch responded with a 45-page brief attacking that theory from multiple directions.

A central theme of Hirsch’s brief is that the developer never satisfied the demanding legal standard governing a use variance for a non-inherently beneficial use.

Under the New Jersey Supreme Court’s landmark decision in Medici v. BPR Co., an applicant seeking permission for a use prohibited by the zoning ordinance must demonstrate, among other things, that the particular property is especially well suited for the proposed use and must provide an enhanced quality of proof reconciling the variance with the municipality’s existing zoning scheme.

Hirsch argues that the Board’s own Resolution expressly found that Chestnut Capital failed on those very requirements.

The Resolution states that the applicant failed to demonstrate that the property was particularly suited for the proposed duplex, failed to show that the purposes of zoning would be advanced by departing from the permitted uses, and failed to establish the required negative criteria.

According to Hirsch, those findings defeat the developer’s suggestion that the Board simply disregarded unrebutted expert testimony.

“An applicant’s expert testimony does not become binding upon a zoning board merely because an objector does not retain a competing professional witness,” Hirsch argues, citing the New Jersey Supreme Court’s decision in Kramer v. Board of Adjustment of Sea Girt.

The brief stresses that the burden belonged to the developer to prove entitlement to the variance — not to Hirsch to hire another planner to disprove it.

But perhaps the most unusual portion of the new brief concerns the developer’s reliance upon Lakewood’s 2017 Master Plan.

At the hearing, planner Brian Flannery relied heavily upon the Master Plan’s recommendation that portions of the existing B-5 area eventually become B-5A, where residential development including duplexes may be permitted.

Flannery testified that the contemplated roadway improvements had already occurred, pointing in particular to the completion of Vermont Avenue through to Chestnut Street.

Hirsch’s new brief says there is a major problem with that testimony.

According to the brief, the Township ordinance actually adopted to implement the 2017 Master Plan expressly conditioned certain zoning changes upon improvements to Cross Street, Massachusetts Avenue and Pine Street — not the Vermont Avenue improvement relied upon by Flannery.

Hirsch argues that Vermont Avenue appears elsewhere in the Master Plan only as part of the document’s circulation and traffic recommendations.

The brief therefore contends that the planner took a roadway improvement recommended as a traffic objective and treated it as though it satisfied the separate legislative conditions governing future rezoning.

Even more pointedly, Hirsch notes that Flannery himself admitted during the hearing:

> “the Township, the governing body, has not changed the zone so we need to come here to request that approval.”

Hirsch argues that this concession strikes at the heart of the case: whatever the Master Plan may have recommended for the future, the governing body never actually rezoned the property.

The brief also highlights an express disclaimer printed directly on the Master Plan’s Proposed Land Use Map:

> “This map is not an official zoning map. It should not be used for official purposes.”

According to Hirsch, the developer is effectively asking the Zoning Board — and now the Court — to treat an aspirational future zoning recommendation as though the Township Committee had already enacted it.

The 45-page brief then dives even deeper into what Hirsch describes as a shifting zoning theory presented by the developer.

The public notice for the hearing told residents that the applicant would use the dimensional standards of the B-2 two-family zone, including a 30% maximum building-coverage limitation.

At the hearing, however, Flannery relied upon the proposed future B-5A zoning and additionally invoked Lakewood ordinance §18-1014 governing duplex development.

That prompted Board Engineer Terry Vogt to ask:

> “So you’re asking for conditional use relief technically if I understand correctly?”

Flannery answered:

> “Yes.”

Hirsch’s brief argues that this left the developer with a serious problem.

If the application is evaluated under the B-2 two-family standards identified in its own public notice, the proposed 35% building coverage admittedly requires additional variance relief.

If the developer instead wants to rely upon the B-5A framework invoked at the hearing, Hirsch argues that it must accept the restrictions and dimensional requirements that accompany that framework — rather than selecting only the portions favorable to the application.

And if §18-1014 governs, Hirsch contends that the developer potentially implicated an additional D-3 conditional-use variance without ever providing the separate analysis required under the Supreme Court’s decision in Coventry Square v. Westwood Zoning Board of Adjustment.

Hirsch summarizes the problem as an attempt to build a “hybrid zoning theory” from different portions of the Township’s ordinance.

The brief argues that Chestnut Capital cannot rely upon the Master Plan and B-5A to establish why duplexes should be permitted, invoke §18-1014 when its provisions appear favorable, and then return to the less restrictive B-2 two-family dimensional standards when those better fit the actual plans.

One particularly technical example involves the proposed side yards.

Hirsch argues that if the duplex is treated as multifamily development under the B-5A framework invoked by the applicant, the ordinance directs the development to B-2 multifamily standards requiring 20-foot side yards.

The concept plan, however, proposes side yards of approximately 7.5 feet.

According to Hirsch, no testimony was ever offered seeking relief from such a requirement because the application had instead been drawn around the much smaller B-2 two-family setbacks identified in the original public notice.

The brief also points to uncertainty over the development’s subdivision approvals.

The developer’s plan was labeled a “Concept Minor Subdivision,” but when Vogt asked Flannery whether the proposal could ultimately constitute a major subdivision, Flannery answered:

> “Yes. Yes.”

Hirsch argues that the Board was therefore being asked to grant extraordinary use-variance relief even though aspects of the development’s final configuration and implementing approvals remained unsettled.

The brief additionally disputes Chestnut Capital’s assertion that the Board’s Resolution contained insufficient factual findings.

Hirsch notes that the Resolution specifically identifies the deficiencies the Board perceived in Flannery’s proofs, including what it described as reliance upon general statutory purposes without sufficient analytical explanation.

And Hirsch adds an important fallback argument.

Even if Judge Hodgson concludes that the Resolution does not contain sufficiently detailed findings, Hirsch argues that the proper remedy would be to remand the matter back to the Zoning Board for additional findings — not order the Board to approve the duplex.

The developer never received the five affirmative votes legally required for a use variance.

Hirsch therefore argues that an alleged deficiency in the wording of the Resolution cannot transform a four-vote application into an approved variance.

The case is now headed toward trial before Judge Hodgson.

For Hirsch, the stakes extend beyond a single duplex.

His brief presents the dispute as a broader question of whether developers can use individualized zoning variances to obtain development rights that Lakewood’s governing body contemplated for the future but has not actually enacted into the present zoning map.

The Zoning Board said no.

Chestnut Capital wants the Court to say yes.

And Aaron Hirsch has now filed 45 pages explaining why he believes the Board got it right.

Trial is scheduled for Tuesday, October 27, 2026.

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