230 A.3d 278
N.J.2020Background
- Shipyard (owner) received 1997 site-plan approvals for a waterfront redevelopment including a pier with public tennis facilities; a developer’s agreement memorialized those approvals.
- In 2011 Shipyard sought to amend the plan to replace the pier tennis facilities with two 11-story residential buildings; the Hoboken Planning Board set a hearing for July 10, 2012 but then voted to deny the application without a hearing.
- Shipyard sued under the MLUL and obtained automatic final approval retroactive to July 2012 based on the Board’s failure to act; that ruling was affirmed on appeal.
- While related litigation was pending, Hoboken adopted two ordinances (Z-263, a flood/damage-prevention ordinance modeled on the DEP model, and Z-264, a zoning ordinance) effective January 2014 that would bar the proposed residential use on the pier.
- Shipyard sued to prevent application of the ordinances; the trial court and Appellate Division held Z-263 is a zoning ordinance, Section 52(a) of the MLUL bars retroactive zoning changes within two years of final approval, and Shipyard’s two-year protection was tolled by the City’s litigation.
- The New Jersey Supreme Court affirmed: Z-263 is a zoning ordinance, Section 52(a) contains no public-health exception, both ordinances became effective within Shipyard’s protected two-year period, and that protective period was tolled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Z-263 is a zoning ordinance subject to the MLUL | Z-263 changes permitted uses, sets construction standards, imposes permit/variance procedures — functions as zoning | Z-263 is an environmental/flood-control regulation enacted under the police power and thus outside MLUL | Held: Z-263 is a zoning ordinance (specifies uses, standards, permit/appeal structure) |
| Whether N.J.S.A. 40:55D-52(a) allows retroactive application of zoning changes for public health/safety to final approvals | Section 52(a) contains no exception; final approvals get two-year insulation | Section 52(a) should be read to include public-health exceptions found in other MLUL sections (e.g., §§10.5, 49) | Held: No public-health exception in §52(a); Legislature omitted one deliberately; §§10.5 and 49 apply to applications/preliminary approvals only |
| Whether the ordinances could apply to Shipyard’s project given its July 2012 final approval | Shipyard: Final approval vested July 2012; ordinances effective within two years cannot apply | City: Ordinances (esp. Z-263) may apply despite final approval because they serve public safety | Held: Ordinances became effective within two years and thus cannot be applied to the Project under §52(a) |
| Whether Shipyard’s two-year protection was tolled by the City’s litigation | Shipyard: City’s suits and appeals barred construction and tolled the protection period | City: Tolling not applicable to defeat ordinances enacted for public safety | Held: Tolling applies because City’s legal actions prevented Shipyard from proceeding; the two-year period was tolled |
Key Cases Cited
- N.J. Shore Builders Ass’n v. Township of Jackson, 199 N.J. 38 (2009) (distinguishes police-power regulations from zoning initiatives and analyzes when an ordinance is subject to MLUL)
- B. & W. Associates v. Planning Board of Hackettstown, 242 N.J. Super. 1 (App. Div. 1990) (addressed protections for preliminary approvals under MLUL)
- DiProspero v. Penn, 183 N.J. 477 (2005) (rules for interpreting statutory text and legislative intent)
- Murray v. Plainfield Rescue Squad, 210 N.J. 581 (2012) (summary-judgment standard and de novo review principles)
- Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Bd., 407 N.J. Super. 404 (App. Div. 2009) (tolling of statutory development periods where litigation prevents development)