Earlier this week, the New Jersey Supreme Court issued its opinion o Shipyard Associates, LP v. City of Hoboken, a case the League participated in as amicus curiae. This case deals principally with two issues related to the Municipal Land Use Law (MLUL). The first issue addressed by the Court – when does a municipal ordinance work as a change in zoning requirements, so as to implicate the two-year protection against zoning requirement changes afforded to final approvals under N.J.S.A. 40:55D-22(a)? The second issue addressed is whether or not the MLUL exempts ordinances affecting public health and safety from its bar against retroactive application of changes in zoning requirements.
The Court sided against the municipality, on both issues. Finding for the first issue that the Hoboken ordinance in question, although passed under the municipality’s general police powers, set specific standards, methods, and uses governing construction, so as it essentially functioned as a zoning ordinance, not a general municipal ordinance. On the second issue, the Court found that a plain reading of the MLUL uncovered no implied exception to the retroactive application of zoning changes, even if those changes were for public health and safety reasons. Further, noting that although such exceptions to retroactive applications may apply to applications for development and preliminary approvals, there was no such exception for final approvals.
While the Court’s decision may not have an impact on the day-to-day operation of municipal land use functions, it could curtail the ability of municipal officials to adapt to unforeseen circumstances and adopt regulations aimed at protecting the health and safety of their residents. You have to go no further for an example of this than the matter before the Court. In the Shipyard case, final approval had already been granted for a project that would have seen a residential high-rise built on a pier. This approval was granted prior to Superstorm Sandy and prior to dramatic changes to recommendations for development projects adopted by both federal and state authorities in response to Sandy, which Hoboken adopted and then attempted to have Shipyard follow – which the Court has now ruled to be impermissible.
With the sudden increasing frequency and intensity of storms, along with other previously thought impossible weather events brought about by climate change, many regulations, especially municipal land use regulations need to be reconsidered. It is unwise to allow developers to continue to build using a set of regulations that have been shown to be inadequate to continue to follow these regulations, simply because that developer got final approval prior to knowing the necessity of improved standards and methods governing construction. However, as the Court’s ruling illustrates, without a change in the MLUL, this is how these matters will continue to function.
You should review this ruling with your municipal attorney, land use attorney, and zoning and land use boards.
Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x 137