An application to build two high-rise buildings on the Hoboken waterfront is entitled to automatic approval after the city planning board refused to hold hearings on the plan, a New Jersey appeals court has ruled.
The panel said a trial judge properly ruled in favor of the developer in three separate suits that were filed in the wake of the automatic approval. The planning board was aware that statutes required it to hear the application, and automatic approval would be granted if it did not, the appeals court said. The board received multiple letters from the applicant’s attorney placing it on notice of its obligations, the appeals court said. And a transcript of a board hearing reveals the Hoboken officials intended to circumvent the automatic approval statute by denying the application without prejudice, but its expressed legal reasons for doing so were “palpably meritless,” the appeals court said in Shipyard Associates v. Hoboken Planning Board.
Hoboken has said it will appeal the ruling to the state Supreme Court.
The suit concerns a development consisting of residential properties, stores and recreation facilities that was first granted city approval in a developer’s agreement in 1997. The developer later decided to construct two additional buildings on a spot that was originally earmarked for tennis courts, and it submitted its application to the planning board in October 2011. Meanwhile, the city sued the developer, Shipyard Associates, in March 2012 to enforce its purported rights concerning the tennis courts under the developer agreement. Then, in July 2012, the planning board refused to hear the application and denied it on the theory that the board lacked jurisdiction to hear the application while the city’s lawsuit was pending.
And separately, Shipyard sued the Hudson County Planning Board and the Hudson County Board of Chosen Freeholders. Superior Court Judge Nesle Rodriguez consolidated the suits and ruled for Shipyard in all three cases.
On appeal, Judges Susan Reisner, Garry Rothstadt and Thomas Sumners Jr. affirmed the dismissal of the city’s suit, finding that the judge below properly applied Toll Brothers v. Board of Chosen Freeholders of Burlington, a 2008 case in which the Supreme Court held that a developer’s agreement cannot be enforced so as to prevent a developer from applying to a planning board for a modification of a previously issued approval.
The appeals court also found Rodriguez correctly ruled that the merits of an application to modify prior approvals are to be decided by the planning board, not by a trial court in litigation to enforce the developer agreement.
Kevin Coakley of Connell Foley in Roseland, who represented the developer, did not return a call seeking comment about the ruling. The lawyer for the city, Joseph Maraziti Jr. of Maraziti Falcon in Short Hills, said he would ask the state Supreme Court to hear the case. He said he would ask the court to rule on whether the city was entitled to relief from the automatic approval because of safety concerns related to the flooding problems that plague the waterfront site where the two buildings are planned.
Dennis Galvin, a solo practitioner based in Jackson who represents the Planning Board, said he is likely to seek certification from the Supreme Court as well. He said the appeals court wrongly interpreted case law on the issue of whether the planning board had jurisdiction to hear the case.