Hoboken denied authority to enforce flood ordinance for Monarch Towers

In a January 7, 2019 decision, a New Jersey Appellate Court panel ruled that the City of Hoboken did not have the authority to enforce its amended flood prevention and corresponding zoning ordinances, which, among other things, prohibited residential and commercial projects beyond the high tide line. The ruling undermines the authority of municipal governments to administer local health and safety laws.

In 2012, the City of Hoboken adopted the two ordinances, one environmental and the other zoning, on recommendations by Hoboken’s consultant, Princeton Hydro; the NJDEP and FEMA.

The consensus among these agencies and the consulting firm was that residential development projects on piers, over bodies of water, put people in harm’s way. Superstorm Sandy confirmed this peril as surging waters overwhelmed piers, stranding residents at pier projects and placing overwhelmed rescue workers at risk. FEMA re-designated Hoboken’s entire mile-and-a-half coastline to be in the Coastal High Hazard or “V” zone. This classification would have prohibited the Monarch Project under state regulations if that designation had been made at the time the NJDEP was considering Shipyard’s permit application, just four months earlier.

In 2011, Shipyard Associates proposed to build the Monarch Towers–two 11-story residential buildings–on a pier in the Hudson River. Hoboken’s mayor and city council, neighbors and FBW rose up in opposition. The proposed development violated an agreement with the City for the developer to provide open space at this pier, and violated the terms of the Hoboken Planning Board’s 1997 approval of the 1160-unit Shipyard Project.

In a series of misguided court decisions since 2011, Shipyard Associates has prevailed despite contrary prior court decisions regarding enforcement of developer agreements and automatic final approval. Usually, New Jersey Courts defer to local land use boards, recognizing that local boards are most knowledgeable concerning local conditions. In this matter, the courts have shown an open hostility to Hoboken Planning Board and the City’s efforts to hold Shipyard to its obligations under the developer agreement, and subsequently to comply with its flood prevention ordinances adopted in response to Superstorm Sandy.

Attorneys representing the City of Hoboken and FBW argued that New Jersey case law and Municipal Land Use Law clearly supports the opposite, that these two ordinances, adopted to protect the public’s health and safety, are enforceable, even if the developer had received final site approval prior to the adoption of the ordinances.