The New Jersey Supreme Court on Tuesday, May 5, decided a major land use decision, in which NJBA participated as Amicus Curiae in support of the developer. The decision holds that there is no health and safety ordinance exception to final approvals under the MLUL (as there is for applications for development and for preliminary approvals). In the litigation, Shipyard Associates, LP obtained a default final site plan approval for two high-rise buildings on piers in Hoboken. After years of unsuccessful litigation, Hoboken tried to block the development by passing two ordinances prohibiting construction on piers as a flood safety measure. Hoboken attempted to apply the ordinances to Shipyard’s development. But, since there is no health/safety exception to final approvals under Section 52(a) of the MLUL, the Supreme Court held that the ordinances did not apply retroactively to Shipyard’s development. (In recognizing the difference between applications/preliminary approval and final approval, the Court specifically relied upon NJBA’s arguments.) In addition, although Hoboken claimed that one of the ordinances was a general police power ordinance, not a land use ordinance regulated by the MLUL, the Court held that both ordinances were zoning ordinances subject to the MLUL. Finally, even though more than two years had elapsed since Shipyard received final approval, the Court held its approval was tolled under Section 21 of the MLUL due to Hoboken’s actions, and therefore the protection against new ordinances was still in effect.
NJBA thanks Robert M. Washburn, Esq., of Flaster/Greenberg, PC, NJBA’s General Counsel and NJBA Master Sponsor, for representing the association and for providing this summary. To read the NJ Supreme Court opinion, please click here.