The city Planning Board decided not to hear an application for the proposed Monarch at Shipyard development on Tuesday night after Ronald Morgan, the board attorney, recommended waiting to find out the outcome of the city’s lawsuit against the project.
The application was officially denied without prejudice before its scheduled hearing could take place at 7 p.m. on July 10 in a crowded Wallace School Gym. The decision will allow the developer to submit their application to the board in the future, after a decision has been rendered in the suit.
Board Chairman Keith Furman, Frank Magiletta (a mayoral appointee), and city Director of Community Develop Brandy Forbes recused themselves from the vote. Carol Marsh, a member of the City Council, was absent from the meeting. The remaining votes were unanimously in favor of denying the application without prejudice.
“[Attorney Joseph] Maraziti was instrumental in the decision that was given last night.” – Mayor Dawn Zimmer
“Last night was definitely a step in the right direction,” said Mayor Dawn Zimmer the following day. “This is a temporary stop to the process depending on the outcome of our court case, so the fight to protect our waterfront is not over.”
Shipyard Associates entered into a Developer’s Agreement with Hoboken in 1997 for the construction of 1,160 residential units and more. The agreement apparently required that tennis facilities and a walkway be constructed as a key element of the agreement.
The developer, however, is seeking to build two 10-story residential buildings instead of the tennis facilities, parking, and other amenities.
The other units were built as part of the existing Shipyard project.
The members of the Hoboken City Council and Zimmer have opposed the project. In March, the city filed a lawsuit against the developer over the terms of the Developer’s Agreement, which was entered into in 1997 under Mayor Anthony Russo.
The developers’ attorney has taken the position that the 1997 Developer’s Agreement is not a source of contractual obligation, and that the developer is not obliged to construct any of the tennis facilities or parking spaces.
The city and local activists have opposed the project because of its potential to block the waterfront view, as well as its apparent change in scope.
During the meeting, Morgan recommended that the board vote to deny the project without prejudice due to the outstanding litigation.
“We have a very unusual situation,” said Morgan, later adding, “The court has to resolve this developer’s agreement before the Planning Board considers this application.”
Before the vote, Kevin Coakley, an attorney for the developer, asked if he could speak before the board.
“Do I get a right to be heard?” asked Coakley.
Morgan explained that the hearing has not opened and that no one would be heard; but Coakley continued to speak.
“We have all of our experts ready to present this case, and I have substantial objections to what Mr. Morgan just said,” said Coakley. “We put in writing [that] we are prepared to proceed with this case. We think this is unprecedented.”
As Coakley spoke, members of the public began yelling, “If we can’t speak neither can you!” and “Sit down!”
Zimmer said that Joseph Maraziti, the attorney handling the city’s case, was “instrumental” in the board’s decision. Maraziti had sent a letter to Morgan recommending the application be dismissed.
Zimmer provided an exchange of letters between Morgan, Coakley, Maraziti. On June 21, Maraziti sent a letter to Morgan requesting that the application be dismissed pending the resolution of the litigation. Subsequently, on June 28, Coakley wrote to Morgan requesting that the Planning Board proceed with the hearing, adding that the board has “no legal authority” to dismiss the application due to timeline restraints.
The following day, Morgan sent a letter to Coakley saying he would recommend the board dismiss the application without prejudice until the issues are resolved.
Then, on July 9, Coakley wrote to Morgan, saying that if the board did dismiss Shipyard’s application, Shipyard will “seek automatic approval” without reapplying to the city’s Planning Board.
A developer can seek “automatic approval” from the court system if a municipality’s board has failed to come to a timely decision on its application. The Planning Board’s various scheduled hearings of the Shipyard application have been cancelled several times in recent months.
During the meeting, Morgan changed his recommendation to a denial, perhaps in light of Coakley’s letter.
“What I recommended is the application be dismissed without prejudice,” said Morgan. “However, the applicant, through its attorney, is taking the position that [this] would enable the board to apply for automatic development approval.”
“Because of the [automatic approval] issue, I’m changing my recommendation [to deny the application without prejudice],” continued Morgan.
Filed in March, the city’s legal complaint says that the developer is in breach of the 1997 Developer’s Agreement, which included the provision of a tennis pavilion, tennis courts, parking spaces and public access improvements. The complaint also seeks compensatory damages and attorney fees.
The developer has filed a counterclaim against the city seeking a dismissal of the compliant, as well as compensatory damages and attorney fees.
The developers have complained that the city took a position on the development without even hearing the application.
In addition to the lawsuit, the city has filed a request for a hearing before the Office of Administrative Law to challenge the Waterfront Development Permit recently issued by the New Jersey Department of Environmental Protection for the project. According to a release, the city is challenging the DEP approval because it apparently contradicts the original permit issued in 1997.
The Hudson County Planning Board voted against the project in February. The developer will likely have to revise the proposal and go back to the county to gain their approval, sources have said.
Coakley did not return multiple calls for comment.
Stephen LaMarca may be reached at firstname.lastname@example.org.