At 23 Leigh Avenue, the ground floor flat occupies roughly 40 percent of the property; the main residence upstairs composes 60 percent.

Architect Marina Rubina appeared before the Princeton Zoning Board on Nov. 13 with a plan for 23 Leigh Avenue that involved no physical changes to the property, no change in the number of potential future occupants of the property, and a chance to create some moderately priced housing stock in the notoriously pricey Princeton market. Two-and-a-half hours of discussion later, her request was unanimously denied. What happened?

The home at 23 Leigh Avenue, in the historic Witherspoon Jackson neighborhood, has since 1973 been a home for two families. The ground floor contains a flat, and the top two floors serve as the main residence. For homes in the former township, this is a legal arrangement, provided that one of the units is owner-occupied, a provision meant to safeguard against absentee landlords.

Rubina, the architect, has approvals in place to rebuild 23 Leigh Avenue in much the same style as it has always been and in keeping with the aesthetics of the neighborhood. In 2018 she received variances from the Zoning Board for floor area ratio, side and rear yard setbacks, and to allow for fewer than the required number of parking spaces at the home, which is within walking distance of the central business district.

On November 13 Rubina returned to the Zoning Board requesting variances to exempt 23 Leigh Avenue from the owner-occupancy requirement, such that both units could serve as rentals, and to allow the conversion of the property from a single-family residence with a flat to a two-family dwelling, one in which each unit could have a separate owner. Such two-owner arrangements are explicitly prohibited by municipal ordinance. But a recent court decision at the state level brought Rubina and her attorney, Chris Tarr of Stevens & Lee, back to the board believing that the law was on their side.

Their argument hinged on the ruling in Tirpak v. Borough of Point Pleasant Beach Board of Adjustment, a decision made in state superior court and upheld by the appellate division in February. In that case, the plaintiff, Maria Tirpak, was granted a variance to construct a two-family home in an area zoned for single-family units, with the condition that one of the units be owner-occupied. The courts found this limitation to be illegal:

“This court finds that whether both units in the duplex are occupied by tenants, or by co-owners, or by one owner and one tenant, the result is the same: this is a two-family use of the property. The two-family use of the property is a legally permitted use. The court is not persuaded that a proper function of the zoning powers of a municipality includes conditioning occupancy upon the status of the occupant, as either an owner or a tenant.”

Therefore, Rubina and Tarr argued, Princeton’s ordinance is wrong: It cannot require owner occupancy, nor can it prohibit the separate ownership of units. The Zoning Board does not have jurisdiction to declare a municipal ordinance illegal. But, as Princeton Zoning Board attorney Karen Cayci explained, it could grant a variance — much as it does when a garage comes too close to a property line or a house is slightly too large for its lot — exempting 23 Leigh Avenue from complying with the ordinance in question.

The board also typically grants variances because an ordinance creates a particular hardship for the homeowner: The only way a garage can function is if it’s placed closer to the property line than regulations permit, for example. In this case, however, Rubina and Tarr made a broader argument that allowing the variances she sought would be beneficial not just for this home but for the town in general as it seeks to diversify its housing stock and provide housing options for what has been termed the “missing middle.”

If this phrase sounds familiar, it’s because Rubina has for the past several years been involved with the Princeton Progressive Action Group. The group advocates for zoning changes that address exactly the problem she seeks to help alleviate with properties such as 23 Leigh Avenue.

One of those changes is already reflected in Rubina’s approvals for the property: reducing the number of required parking spaces for homes with flats. The other changes PPAG advocates for are allowing flats in the former Borough, and allowing homes with flats to be converted to duplexes — exactly what Rubina proposed for the Leigh Avenue property.

As she testified at the Zoning Board meeting, the home as a single unit could be sold for upwards of $1 million — out of reach for many would-be buyers. As two units, however, the smaller could be sold for around $350,000 and the larger for around $750,000, both figures below the average sale price for homes in Princeton of $821,771.

Repeatedly, Rubina reiterated that nothing about the appearance or use of the property would change. There would still be one smaller and one larger unit, accommodating the same number of people. Two families could occupy the home, as has been the case for many years.

Several residents spoke at the meeting and complimented Rubina’s design for the house and her initiative to fill the void in between the extremes of the Princeton housing market.

Valerie Haynes, a Mount Lucas Road resident who has for decades lived next to homes occupied by renters, pointed out that current zoning rules have the effect of making teardowns replaced by McMansions the path of least resistance.

“We’re adopting beautiful master plans which consistently express our preference for income diversity and all other kinds of diversity in this town, and at the same time have a zoning ordinance which makes it that the easiest and most simple application is to just tear down whatever’s there and build a house and sell it for a million and a half,” she said. “That’s what we now have, and that’s what we’re getting, and people are complaining about it, but we’re not doing anything about it.”

And Tony Dimeglio, a broker with real estate agency Callaway Henderson, recognized the value of Rubina’s proposal. “I think the fear of this board is that if this is allowed, it will open the floodgates to something that is desperately needed in this town,” he said.

But others, including members of the board, expressed concern that a variance granted here would open the floodgates to the “condominiumization” of Princeton. Leighton Newlin, a lifelong Witherspoon Jackson neighborhood resident and a key figure in the fight to have it designated as a historic district, warned about the unintended consequences the variances could have, expressing concern that changing the owner-occupancy requirement would open the neighborhood to real estate investors who would buy up properties and turn them into multi-family rentals.

“What we’re talking about here tonight, quite frankly, is history. Now let’s be clear: The reason that Witherspoon Jackson was made a historic district was to preserve the streetscape and the integrity of the neighborhood,” he said. “One of the things that will kill a neighborhood and displace a neighborhood quicker than anything is to have a flood of renters in what is now a historic neighborhood where the reason it’s historic and the reason it got the designation is because of the camaraderie of the people and the fact that when people own homes there is more care and concern with the neighborhood.”

And fundamentally, the board was in agreement that the circumstances of the Tirpak decision — where the two-family use was already approved — and the circumstances on Leigh Avenue were different enough that they did not find it a compelling precedent to apply to Rubina’s case. And, they argued, it was not their place to, in effect, change Princeton’s ordinances. And so the variances were unanimously denied.

Rubina’s recourse now is to take the Zoning Board to court, and that is her plan.

After the hearing, she issued the following statement:

“A decade of designing homes for Princeton clients made me realize two reasons for the lack of middle-income housing. One is the cost of land and labor. I’ve used cost-saving techniques like off-site fabrication, inexpensive materials, and efficient layouts, but still the price of each dwelling unit is well over $1 million.

“The second reason is the exclusionary zoning practices. Our zoning and approval system encourages large single-family homes on large lots. 23 Leigh is a perfect example of middle-income housing meeting roadblocks at every step.

“23 Leigh has been occupied by two families since 1973. I proposed a compliant remodel/addition maintaining the original house, creating a senior-friendly unit with a three-bedroom unit above. I had to go through four Historic Preservation reviews, three major re-designs, two Zoning Board hearings, and more. It has taken over two years and $50,000 in legal/municipal fees/taxes.

“In November the Zoning Board upheld an old township ordinance stating that two units are allowed if one resident can afford to own both. The same two units are not allowed if they are occupied by two owners or two renters, even though New Jersey courts said that towns cannot dictate who occupies the land.

“I have chosen to challenge this ordinance in court. My goal is to end this exclusionary zoning practice because I believe it will help provide much needed variety of housing options. Information about 23 Leigh and our lawsuit are at www.mrubina.com. Please join me in the fight to create the ‘missing’ middle-income housing.”

The next Zoning Board meeting is scheduled for Wednesday, December 11.

Recent transactions

The following listings of residential home sales are based on public records and tax files. The number in parentheses after the closing price indicates the amount it was above or below the original listing price.

38 Constitution Hill West. Seller: Newell Woodworth Estate and Enid Woodworth Estate. Buyer: Lynn Maher Trust and Howard Maher Revocable Trust. Condo in Constitution Hill. 2 bedrooms, 2.5 baths. $630,000 (-$35,000).

110 Potters Run. Seller: Dennis and Yvonne Quinn. Buyer: Javier Fernandez and Cristina Herrero. Two-story Colonial in Heatherstone. 4 bedrooms, 2.5 baths. $905,000 (-$64,900).

478 Riverside Drive. Seller: Paul and Susan Geller. Buyer: Grosso Homes LLC. Ranch in Riverside. 3 bedrooms, 2 baths. $750,000.

212 Herrontown Road. Seller: Sandy Yeung and Raymond Sun. Buyer: Zifang Guo and Lei Pang. Two-story Colonial in Littlebrook. 5 bedrooms, 4.5 baths. $1,115,000 (-$180,000).

42 Wilkinson Way. Seller: Mara Olmstead and Mara Yoelson. Buyer: Wei Kuo and Connie Guo. Townhouse in Washington Oaks. 3 bedrooms, 2.5 baths. $730,000.

96 Dempsey Avenue. Seller: Dominic Vigiano and Debra Lambo. Buyer: Eun Buettner. Ranch in American Way. 3 bedrooms, 2.5 baths. $850,000 (-$88,000).

171 Ridgeview Circle. Seller: Ajay Dhal and Roopali Gupta. Buyer: Shin-Heng Chiou and Silke Steurich. Ranch. 3 bedrooms, 4 baths. $845,000 ($24,000).

36 Mercer Street. Seller: William and Roxane Jones. Buyer: Stephen Ebans and Cheryl Powers. Two-story Colonial. 5 bedrooms, 3.5 baths. $1,795,000.

175 Arreton Road. Seller: Qing Yang and Yan Sun. Buyer: Scott Seibert and Maria Kraimer. Two-story Colonial in Princeton Ridge. 5 bedrooms, 4.5 baths. $1,260,000 (-$39,000).

199 Snowden Lane. Seller: 199 Snowden LLC. Buyer: Xavier Boutry and Cecile Ollagniew. Two-story Colonial. 5 bedrooms, 5.5 baths. $1,680,000 (-$55,000).

41 Constitution Hill West. Seller: Adele Borrus Estate. Buyer: Theodore Boyer abd Jane Rohlf. Two-story Contemporary twin in Constitution Hill. 4 bedrooms, 3.5 baths. $850,000.

229 Terhune Road. Seller: Grosso Homes. Buyer: Benjamin and Clare Mackness. Three-story split level. 4 bedrooms, 3 baths. $1,160,000 (-$89,000).

238 Mount Lucas Road. Seller: 238 Mount Lucas. Buyer: Mark McConnell and Connie Chen. Two-story Colonial. 4 bedrooms, 2 baths. $595,000 (-$54,000).

102 Snowden Lane. Seller: Craig and Monica Blessing. Buyer: Yueting Zhang and Roman Akhmechet. Two-story Colonial in Littlebrook. 4 bedrooms, 2.5 baths. $815,000 (-$130,000).

15 Poor Farm Road. Seller: Verna Matthews Estate. Buyer: David and Jane Kim. Two-story Contemporary. 4 bedrooms, 3 baths. $850,000 (-$20,000).

283 Mount Lucas Road. Seller: Oleg Chebotarev. Buyer: Alexander and Helen Kim. Two-story Contemporary. 4 bedrooms, 3 baths. $1,195,000.

201 Mercer Street. Seller: Cheng Chen and Paula Zhou. Buyer: Alexander and Sarah Brooks. Two-story Contemporary. 4 bedrooms, 4.5 baths. $1,044,475 (-$105,525).

218 Gallup Road. Seller: Andrew and Gretchen Eberhart. Buyer: Lenard and Charlotte Marcus. Two-story Colonial. 5 bedrooms, 4.5 baths. $1,300,000 (-$99,000).

148 Fairway Drive. Seller: Colin Wright and Mary Skeels. Buyer: Marcello Santoro and Megan Walsh. Two-story Traditional. 7 bedrooms, 6.5 baths. $1,200,000 (-$299,000).

246 Witherspoon Street. Seller: 246 Witherspoon Partners. Buyer: Oliver and Marion Gaillard. Two-story Cape Cod. 4 bedrooms, 2 baths, 2 half baths. $685,000 (-$14,000).

747 Kingston Road. Seller: Next Phase Development LLC. Buyer: Regal Build Group. Two-story Colonial in Riverside. 6 bedrooms, 5.5 baths. $1,525,000 (-$274,000).

92 Battle Road. Seller: 92 West Battle Road LLC. Buyer: Alexander and Irina Sidorenko. Two-story Colonial near the Institute for Advanced Study. 4 bedrooms, 5.5 baths. $2,230,000 (-$69,000).

72 Knoll Drive. Seller: James Owen and Lori Ledford. Buyer: Gale and Marcia Shank. Three-plus story Colonial in Riverside. 5 bedrooms, 5.5 baths. $1,625,000 (-$74,000).

51 Southern Way. Seller: John and Meytal Higgins. Buyer: William and Aileen Fair. Two-story Colonial in Riverside. 4 bedrooms, 2.5 baths. $1,035,000 ($10,000).

815 Mount Lucas Road. Seller: Beverly Moore. Buyer: Shivang and Bhumika Patel. Ranch. 4 bedrooms, 2 baths. $450,000 (-$88,750).

214 Birch Avenue. Seller: Jane Okoth. Buyer: Wenfu and Zihan Li, Wen Xiao. Semi-detached twin in Abbott Commons. 3 bedrooms, 2 baths. $425,000.

302 Jefferson Road. Seller: Michael and Simona King. Buyer: Andrew Kim and Jonathan Finkelstein. Two-story Contemporary/Craftsman. 5 bedrooms, 4.5 baths. $1,510,000 (-$78,000).

41 Gulick Road. Seller: Thomas and Marjorie Elliott. Buyer: Yong Chang and Jingzhi Chen. Two-story Cape Cod in Stony Brook. 4 bedrooms, 3 baths. $875,000.

67 David Brearley Court. Seller: Lian Qi and Jia Ren. Buyer: Dan Liu. Townhouse in Griggs Farm. 2 bedrooms, 2 baths. $358,000 (-$2,000).

60 Littlebrook Road North. Seller: Laura Kruskal Estate. Buyer: Moiz Tayebaly. Contemporary, Ranch/Rambler in Carnassa Park. 4 bedrooms, 2 baths. $675,000 (-$224,900).

12 Pelham Street. Seller: Gerard and Mary Brophy. Buyer: Lewis Tsai and Natalie Tong. Two-story Colonial in Riverside. 3 bedrooms, 1.5 baths. $750,000.

616 Ewing Street. Seller: Lawrence Barsky. Buyer: Vijay and Jayashree Kanchi. One-story Ranch. 4 bedrooms, 2 baths. $519,000 (-$30,000).

6 Burr Drive. Seller: Shawn Ding and Situ Qun. Buyer: Andrew Kim and Heeyoung Park. Two-story Colonial in Campbell Woods. 3 bedrooms, 2.5 baths. $720,000.

25 Howe Circle. Seller: Jonathan Ericson Trust. Buyer: Sebastian Seung and Hye Vin. Two-story Colonial in Riverside. 5 bedrooms, 5 baths, 2 half baths. $1,895,000.

60 Philip Drive. Seller: MRM Construction. Buyer: FCB Investments. Two-story Colonial in Riverside. 5 bedrooms, 5.5 baths. $1,862,500 (-$132,500).

57 Jefferson Road. Seller: Helen and Kenneth Schwartz. Buyer: Alice Chang and Paul Yang. Two-story Craftsman. 4 bedrooms, 1.5 baths. $930,000 (-$65,000).

117 Leabrook Lane. Seller: Brian and Jessica Pomraining. Buyer: Elizabeth Adams and Tracy Braun. Two-story Colonial in Littlebrook. 4 bedrooms, 2.5 baths. $1,070,000 (-$30,000).

76 Cedar Lane. Seller: Michael and Lauren Freedman. Buyer: Lijun Wang and Jia Li. Two-story Cape Cod in Riverside. 5 bedrooms, 3.55 baths. $995,000 (-$304,000).

57 Wiggins Street. Seller: Nicholas Feamster and Marshini Chetty. Buyer: Jean-Rene Gougelet. Two-story Colonial Twin. 2 bedrooms, 2 baths. $530,000 (-$30,000).

9 Pardoe Road. Seller: Bruce Cassidy. Buyer: Philip and Rozina Wickart. Three-story split level. 4 bedrooms, 3.5 baths. $995,000 (-$180,000).

871 Mount Lucas Road. Seller: Julia Weissenburger Estate and Albert John Newton Estate. Buyer: Ellen and Robert Kogan. Two-story Cape Cod in Littlebrook. 4 bedrooms, 2 baths. $478,900 ($9,000).

144 Guyot Avenue. Seller: 144 Guyot LLC. Buyer: Yuen Siu. Two-story Colonial/Contemporary. 4 bedrooms, 4 baths. $1,518,000 (-$131,000).