Appellate Court will hear appeal of 3 Monarch Towers cases on Feb. 28

The Appellate Court will hear oral arguments on Tuesday, February 28 at the Middlesex Courthouse, Part C, 56 Paterson Street, New Brunswick beginning at 10 a.m.

By Ron Hine | FBW | January 20, 2017

In 2011, when the Shipyard Associates first proposed the Monarch Towers project, immediate opposition arose from the City of Hoboken, the Fund for a Better Waterfront (FBW) and neighborhood residents. Nearly six years later and after settlement talks between the City and developer has faltered, the protracted legal battle continues. Next month, four of the five cases will be taken up by the courts.

On February 6, 2017, Hudson County Assignment Judge Peter Bariso will convene attorneys representing plaintiff Shipyard Associates and defendants City of Hoboken, Hudson Tea Building Condo Association and FBW in a case management conference. The Shipyard Associates have challenged the amended flood ordinance adopted by the City of Hoboken that prohibits building residential projects on piers over the Hudson River.

In 1997, the Hoboken Planning Board approved the 1160-unit Shipyard Project on 9 acres at Hoboken’s northeastern waterfront. Those approvals also included a developers’ agreement with the City of Hoboken. Once the Shipyard Associates built the first six parcels of this project , including all the residential units approved, they were required to build the final parcel — Development Block G — as open space including tennis courts, a tennis pavilion and the final segment of the Shipyard’s Hudson River Waterfront Walkway.

But in 2011, the Shipyard Associates, brothers Michael and David Barry, reneged on the 1997 Planning Board approvals and developers agreement by proposing instead to build two 11-story residential towers on this final parcel.

One of the appeals coming before the Appellate Court on February 28th concerns the City’s suit against Shipyard to enforce the developers’ agreement. Hudson County Judge Patrick Arre dismissed the City suit in favor of Shipyard Associates. One of the key arguments that will be made by FBW attorney Renee Steinhagen of New Jersey Appleseed Public Interest Law Center is that the circumstances pertaining to the Shipyard development had not changed significantly and thus Judge Arre’s ruling was made in error.

The second appeal pertains to a January 2014 ruling by lower court Judge Nestle Rodriguez that granted automatic approval for the Monarch Project claiming that the Hoboken Planning Board was out of time to make a ruling on the application. This was a highly controversial ruling as it is a part of the state’s Municipal Land Use Law that is rarely invoked. The Hoboken Planning Board attorney argued that the board was not in fact out of time. FBW’s attorney also pointed out that the Monarch application was not complete, a requirement for the clock to start running on any application deadlines.

The third appeal coming up before the same panel of Appellate judges on February 28th concerns the denial of the Monarch application before the Hudson County Planning Board and Board of Chosen Freeholders. These denials were overturned in lower court and thus appealed by the Hudson Tea Building Condo Association. The City is not a party to this suit.

On February 28, 2017 at the Middlesex County Courthouse in New Brunswick, the Appellate Court will hear oral arguments in these appeals of three lower court rulings. These three appeals will be heard by the same panel of judges.

In February 2014, the Shipyard Associates filed suit against the City of Hoboken in an attempt to overturn Hoboken’s amended flood and corresponding zoning ordinances adopted in December of 2013. The suit was filed in United States District Court in Newark, New Jersey. The City passed these ordinances in response to Superstorm Sandy, and in conformance with newly adopted federal and state standards to protect communities from flood hazards. The ordinances prohibit residential development on piers and platforms over the Hudson River; thus, the Monarch Towers proposal is in violation of these laws.

The Monarch project violates a number of important NJDEP Coastal Zone Management regulations, including protecting views from the Weehawken Cove.

Shipyard Associates’ Monarch Towers proposal contradicts 1997 Hoboken Planning Board approvals and corresponding developers’ agreement that preserved this pier for open space.

After the federal magistrate ruled against Shipyard in FBW’s motion to intervene and their own motion for summary judgment, Shipyard withdrew its case and refiled in state court. This was after many months of discovery before the federal court. So now this case begins again in Hudson County Superior Court. This February 6 case management conference with the judge and the lawyers will determine the schedule for discovery, briefs and other matters before the the Court.

The settlement talks between the City and Shipyard led to an agreement that the City Council unanimously rejected. Neighborhood resident overwhelming objected to the agreement that would add 79 units to a 186-unit project the developers have proposed for 800 Monroe Street. As part of the agreement, the developers would have withdrawn the Monarch proposal and donated the 1.8 acre development parcel to the City. FBW has procured cost estimates from McLaren Engineering for work required to clean up the derelict site, repair the bulkhead and build the open space on this 1.8 acre site. The Monarch pier known as Development Block G is one-third on land and two-thirds on a pile supported pier large sections of which have collapsed into the river.

The cost of building the open space, including the walkway, tennis courts and tennis pavilion on Development Block G as the developer was originally required to do is about $20 million. If the developers paid to replace the bulkhead; build the park on the land portion and remove the dilapidated decking and other debris on the pier portion, the cost would total about $7 million. FBW has proposed that Shipyard undertake these basic costs before handing over the property to the City. Thus, FBW’s proposal would save the developer $13 million and save Hoboken taxpayers the $7 million.

Related links

City settlement would shower tens of millions in benefits on Shipyard developers
FBW letter to Mayor and Council 9-20-2016
Settlement proposed to end 5 year legal battle over Monarch Towers
Did NJDEP ignore its own coastal zone regs in granting permit? Appellate Court to decide
‘Rapacious’ developer must defend broken agreement in Appellate Court
Monarch towers case goes to Appellate Court
Monarch Towers litigation grinds on as public opposition persists
Federal judge grants FBW opportunity to help defend Hoboken’s flood ordinances
Developers challenge Hoboken flood ordinance in federal court
Judge grants automatic approval for controversial Monarch Towers
Monarch Towers described as classic case of bait and switch
Shipyard’s plan to privatize pier