A controversial proposal to build a hotel, apartments and retail space at a busy Brick intersection has been stopped in its tracks by a lawsuit filed Wednesday by an objector to the project.
The lawsuit argues that Brick Township’s planning board does not have jurisdiction over the application, since variances are being sought by the developer. In the lawsuit, attorney Ronald Gasiorowski – representing the objector, who was not named publicly at a planning board meeting Wednesday night – argues that Brick’s municipal land use law holds that an application involving a conditional use within a mixed use overlay zone must not require variances. The plot of land on which the hotel complex would be built lies in the township’s Hospital Support Zone, which is overlayed by a mixed use zone. Thus, the lawsuit claims, the planning board has no jurisdiction over the application and it must be heard by the township’s Zoning Board of Adjustment instead.
“As a result of that, I would ask that the board not continue with the proceedings until the litigation is resolved,” said planning board attorney Harold Hensel.
Traditionally, variances are decided by the Board of Adjustment.
The application includes a 103 room Marriott Residence Inn, 66 apartments and 39,475 square feet of retail space to be built on a triangular lot bordering Route 88, Burrsville Road and Jack Martin Boulevard. It has been vehemently opposed by residents in adjacent neighborhoods, who have argued the project would lead to dangerous traffic increases. They have also questioned who would ultimately reside in the hotel and apartment units. Prior to Wednesday night’s announcement, residents had packed a planning board meeting, under the assumption the application would continue to be heard.
If a court rules that the matter must be transferred to the Board of Adjustment, Hensel said, the circumstances of the application would be significantly different. Instead of simply needing its site plan approved, the board would have to approve a use variance, the most difficult variance to obtain under state land use laws.
The board – and the attorney for Kamson Corp., the project’s developer – agreed to a 30 day hold on the application, which may have to be extended.
“We do not agree with the substance of the complaint,” said Michael A. Policastro, the attorney for Kamson. “All options are on the table for the applicant. Before the application was filed, we met with township officials on numerous occasions and we were all in accord.”
Hensel said similar cases have taken “months” to be heard by a judge, though the legal questions surrounding the hotel case could lead to the matter being expedited. The testimony heard so far before the planning board will be preserved in the case that the application returns, however if the case is transferred to the Board of Adjustment, it is likely that new testimony will have to be delivered.