Court Rules Historic Preservation Review Process Was Ultra Vires and Exceeded Authority Under the Municipal Land Use Law
The Superior Court of New Jersey, Law Division, Hudson County, has recently entered an order in favor of Connell Folley’s client, 240 Realty LLC, invalidating provisions of the Jersey City Municipal Code that the City relied on to deny demolition permits for properties located at 240 and 250 Newark Avenue in Jersey City.
Connell Foley’s real estate team, led by partner Thomas P. Leane and associate Brian K. Dempster, represented 240 Realty LLC in an action in lieu of prerogative writs against the City of Jersey City, the City's Zoning Board of Adjustment, its Historic Preservation Commission, and two municipal officials, challenging the denial of demolition permit applications for the two properties.
The court held that Section 105-3 and Section 345-30(E)(1) of the Jersey City Municipal Code, as amended by Ordinance No. 25-006, are ultra vires and violate the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., and are accordingly null and void. The court further found that the ordinance improperly extended the jurisdiction of the City's Historic Preservation Commission and Historic Preservation Officer beyond the authority conferred by N.J.S.A. 40:55D-111, which limits historic preservation review to properties designated as historic sites or located within designated historic districts.
The court reversed the Historic Commission's recommendations and the Zoning Officer's denial of the demolition permit applications for the properties, as well as the Zoning Board's resolutions upholding those denials, finding each to be arbitrary, capricious, and unreasonable. The order enjoins the City, the Historic Commission, the Historic Officer, the Zoning Officer, and the Zoning Board from enforcing the invalidated resolutions or conducting further historic preservation or zoning review of the properties on the grounds previously asserted, and confirms that 240 Realty LLC is entitled to receive demolition permits upon filing complete applications that comply with applicable local and state requirements.
"This decision confirms what we argued from the outset: the City’s demolition ordinance effectively made the entire City a historic district. A municipality violates the Municipal Land Use Law when it applies historic preservation standards to properties without going through the proper process to designate historic district and landmarks," said Leane. "We are pleased the court agreed with our client's position and that 240 Realty LLC can now move forward with its plans for these properties."
