FBW seeks to support validity of Hoboken’s flood ordinances in federal court

By Ron Hine | FBW | July 7, 2014

The Fund for a Better Waterfront (FBW) has filed a motion to intervene in the latest round of legal wrangling over the controversial Monarch Towers project. Last December, the City of Hoboken passed an amended flood ordinance and corresponding zoning that effectively could kill the proposed project. In order to protect the public’s health and safety, the amended ordinances prohibit building over the Hudson River on piers and platforms. Back in 2011, developers David and Michael Barry, principals of the Shipyard Associates, proposed to add these two residential towers on a pier at the north end of their recently completed 1160-unit project on Hoboken’s waterfront.

FBW is represented in this case by the Eastern Environmental Law Center and New Jersey Appleseed Public Interest Law Center. FBW’s brief in support of its motion to intervene was filed on June 13. The developers have requested more time in their attempt to oppose FBW’s effort to become a party to the case. Shipyard Associates, represented by the law firm Connell Foley, filed a summons and complaint on February 26, 2014 with the United States District Court in Newark, New Jersey challenging the amended Hoboken ordinances.

Hoboken was especially hard-hit during Superstorm Sandy and the City of Hoboken has taken a series of measures to protect its residents and businesses from future storms. The challenged ordinances were based on models promulgated by the New Jersey Department of Environmental Protection (NJDEP) and the latest studies issued by the Federal Emergency Management Agency (FEMA). All piers on New Jersey’s Hudson River waterfront, including the pier for the proposed Monarch towers, are situated in FEMA’s highest flood-risk area designated as the “Coastal High Hazard Zone.”

Hoboken’s amended ordinances prohibit building beyond the high tide line over the Hudson River. Any new construction in the Coastal High Hazard Zone would also need to be elevated two feet above the base flood elevation for a 100-year flood and allow flood waters and waves to flow freely underneath the building. Shipyard Associates current application for building the Monarch Towers does not comply with these new standards.

In 2011, the Shipyard developers completed the final units of an 1160-unit residential project that the Hoboken Planning Board approved in 1997. The site covers 9 acres on prime waterfront real estate in north Hoboken. The Planning Board’s 1997 site plan approval required the Shipyard Associates to build open space, including tennis courts, a tennis pavilion and a portion of the Hudson River Waterfront Walkway on the final parcel, Development Block G, once the final units were completed. The developers also signed an agreement with the City of Hoboken that included this commitment to build the open space.

Brothers David and Michael Barry reneged on this commitment to build the open space and instead proposed to build two 11-story towers, a total of 78 units on Development Block G. About two-thirds of this final parcel is a pier that sits over the Hudson River at the Weehawken Cove.

The Hoboken shoreline with a submerged portion of Sinatra Park during Superstorm Sandy. Photo Credit: TheBoken.com.

The Hoboken shoreline with a submerged portion of Sinatra Park during Superstorm Sandy.
Photo Credit: TheBoken.com.

Last year at a public hearing before the NJ State Assembly committee, Donald Stitzenberg gave a personal account as a property owner who lives on a pier – Riva Pointe at Lincoln Harbor in Weehawken. He testified that the National Flood Insurance Program will not insure properties built over the Hudson River. Since Sandy, private insurers have declined to insure the 245 units at Riva Pointe as well. Stitzenberg related the harrowing tale of what it was like for the residents of this pier project during the night that Sandy hit. The waters had completely surrounded the development, cutting them off from emergency personnel. An elderly woman residing at Riva Pointe suffered a heart attack and had to be rescued. Only after an inflatable pontoon was brought in by emergency workers through four feet of water, could the woman be taken to the hospital.

The City of Hoboken, the Hudson Tea Building Condo Association and FBW have all challenged this development project. The various court actions have included denials by the Hoboken Planning Board and Hudson County Planning Board which Shipyard Associates has sought to reverse and a NJDEP waterfront permit granted for the project that the objectors are seeking to overturn. All of these cases are at various stages of appeal at considerable cost to the taxpayers of Hoboken.

But this federal case could be central to the final disposition of this case. If this court upholds the Hoboken ordinances, the Monarch Project will be confronted with a nearly impassable roadblock. Ordinances that protect the health and safety of its citizenry offer a solid legal basis for denying such a proposal.

Related links

FBW Brief (filed 06-13-2014)
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
Monarch Towers now in FEMA’s Coastal High Hazard flood zone
Gov. Christie vetoes bill that could jeopardize flood insurance eligibility
City sues Monarch developers for breach of contract
County Planning Board stuns Monarch developers with “no” vote
DEP flouts its permit to restore pier as open space
Shipyard’s plan to privatize pier