City loses again on Monarch, Mayor Zimmer vows last ditch appeal

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Wednesday October 18, 2017

City of Hoboken, NJ

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Community: Update on Monarch Litigation 
Dear MSV readers,

Yesterday, Judge Bariso, the Chief Judge of the Hudson County Superior Court, ruled that the City’s Flood Control Ordinances, adopted in the aftermath of Superstorm Sandy, did not apply to the proposed Monarch development.  This ruling clears one of the last legal roadblocks to the project.

Judge Bariso acknowledged that the purpose of the ordinance was public safety, stating that “Hoboken has provided sufficient support to show the Ordinances were likely passed in response to Federal and State efforts to prevent future flood damage following Hurricane Sandy.”

However he ruled that the purpose of the state law in question was “to protect landowners and developers from the inequity that occurred when application and approval efforts and expenses were rendered futile by subsequent changes to the Ordinance.”  As a result, the court determined that the City’s flood safety ordinances could not legally be applied to the developer once a final Planning Board approval had been received by the developer.

In essence, Judge Bariso ruled that the State legislature intended to prioritize the economic interests of property owners and developers over the City’s compelling interest in addressing an important public safety concern.

The City strongly disagrees with this conclusion, which has broad implications beyond the facts of this particular case in terms of the ability of municipalities to provide for the safety of the public. The City will continue to litigate the matter through the appeals process to the New Jersey Supreme Court, if necessary.

The City has also sought review by the New Jersey Supreme Court of a ruling against the City on a separate Monarch related litigation concerning whether a final Planning Board approval had in fact been automatically granted to the developer. The Planning Board did not approve the application; rather it rejected it without prejudice due to the pending litigations. That petition requesting review of the ruling has not yet been decided by the Supreme Court. The City has argued that the lower Courts did not adequately consider the danger to public safety in granting automatic approval of a project raising public safety concerns, without an actual Planning Board review.

The appeals of the unfavorable decisions in these two cases are the only litigation items still pending with respect to the proposed Monarch Development.

In October, 2016, the City and the developer of the proposed project reached a proposed settlement with respect to these and other litigations.  The proposed settlement would have prevented the Monarch project from being built, with the property instead becoming a City park. In exchange, the developer would have received added density in a project they proposed on the western side of the City.

The proposed settlement was unanimously rejected by the City Council after concerns about the added density were raised by residents residing on the West Side of the City. In addition, concerns were raised about the sufficiency of the benefits to the waterfront by the Fund for a Better Waterfront and the Board of the Hudson Tea Building. As a result, no settlement was reached.  

Talking Ed Note: The latest bad news on the Monarch means the City of Hoboken is faced with the prospect of two towers on the northeast corner of town. 
Hoboken is now left with two less than desirous appeals as its last bid hope to stop the Barry Brothers from screwing Hoboken after they reneged on fulfilling their obligation at this location for parking and tennis courts. The millions in profits they made with their cozy Shipyard deal are apparently not enough.
There’s no point in blaming Hudson County Administrative Judge Peter Bariso as inferred here. He ruled under the law on the competing legal matters and he’s highly respected. So what brought Hoboken to this sorry chapter? 
The whole mechanism for this sad result came about with the decision by the Hoboken Planning Board to not hold an actual hearing on the matter. MSV had planned to attend that evening when the surprising word came the Planning Board assembled with a large group of Hoboken residents in attendance and the application was rejected with no hearing. This opened the door to legal challenges and the resulting decisions against Hoboken began tumbling like a wall of falling dominoes. 
Ultimately Mayor Zimmer is accountable but she is not a lawyer. The mayor and/or the Hoboken Planning Board were given bad legal advice. 
At this point, the prospects do not look good for stopping the Monarch.

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