Shipyard Associates, L.P. v. City of Hoboken (082446) (Hudson County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Shipyard Associates, LP v. City of Hoboken (A-83/84/85-18) (082446)
Argued January 22, 2020 -- Decided May 5, 2020
TIMPONE, J., writing for the Court.
The Court considers the City of Hoboken’s argument that two municipal
ordinances -- passed after plaintiff Shipyard Associates, LP (Shipyard), obtained final site
plan approval for the two high-rise residential buildings it planned to construct as part of
a larger development project -- prohibit residential uses on the City’s pier and should
therefore operate to halt Shipyard’s proposed construction.
Shipyard is the owner of property on the City’s waterfront abutting the Hudson
River. In 1997, the Hoboken Planning Board (Board) adopted a resolution approving
Shipyard’s proposal for several luxury high-rise apartment buildings, multiple
commercial retail units, parking garages, a park, and a waterfront promenade or walkway.
The proposal also included three tennis courts and a tennis pavilion available to the
public for a fee on a platform extending into the Hudson River. Shipyard developed most
of the property in substantial accordance with the agreement. However, in 2011,
Shipyard filed an application with the Board seeking to amend the site plan approval and
replace the tennis facilities with two eleven-story residential buildings (the Project).
The City was dissatisfied with the proposed changes and attempted to block
Shipyard from moving forward. It opposed Shipyard’s request for a necessary permit
before the DEP and, after the permit was granted, in court. Shipyard prevailed in that
suit. The City also filed suit to compel the construction of tennis facilities per the
original agreement. That suit was dismissed. Meanwhile, in July 2012, the Board voted
to deny Shipyard’s application for the Project without holding a hearing. In response,
Shipyard filed suit seeking automatic approval of its application under N.J.S.A. 40:55D-
61, a provision of the Municipal Land Use Law (MLUL), based on what it argued to be
the Board’s failure to act. The court agreed and found that Shipyard’s application had
automatically approved at the close of the Board’s statutorily prescribed period to act:
July 2012. All of those trial court determinations were affirmed on appeal.
In late 2013, the City passed two ordinances: Ordinance Z-263 and Ordinance
Z-264. The City designated Z-264 specifically as a zoning ordinance adopted pursuant to
the MLUL, and its application to the Project would prevent completion of the Project
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altogether. Z-263 expressly provides that it was enacted pursuant to the City’s
legislatively delegated police power. It is virtually identical to the DEP’s Model Flood
Damage Prevention Ordinance and permits construction “seaward of the mean high tide”
only for facilities like ports and ship-building or ship-repair facilities or for “open space
and outdoor passive and active recreational uses.” If Z-263 were applicable here, the
Project would not satisfy either of Z-263’s permitted uses.
Shipyard brought suit challenging the applicability of the Ordinances to the
Project. The trial court held Shipyard’s application received final approval in July 2012.
The court found that, under the plain terms of N.J.S.A. 40:55D-52(a), any zoning
ordinance passed within two years of that time could not apply to the Project. The court
therefore granted summary judgment in favor of Shipyard against the City and the
intervenors who opposed Shipyard’s suit. The Appellate Division affirmed. The Court
granted certification. 238 N.J. 377 (2019); 238 N.J. 152 (2019); 238 N.J. 150 (2019).
HELD: Both ordinances at issue are unquestionably zoning ordinances subject to the
limitations of the MLUL, the plain language of which contains no exception for the
retroactive application of changes in zoning requirements within two years of the
issuance of a final approval. The City therefore cannot apply either ordinance to the
Project, because they became effective within two years of the issuance of Shipyard’s
final approval. And Shipyard’s period of statutory protection has been tolled.
1. The Court first addresses the City’s argument that, because Z-263 does not work a
change in the zoning requirements, the two-year protection against zoning requirement
changes afforded to final approvals under N.J.S.A. 40:55D-52(a) does not apply. The
City is mistaken in its characterization of Z-263. The City passed Z-263 to prevent
flooding in the wake of Hurricane Sandy. Indeed, the City modeled the ordinance after
the DEP’s Model Flood Damage Prevention Ordinance. Beyond changing the zoning of
land in certain zones, the ordinance specifies floor heights for certain buildings. In “all
areas of special flood hazards,” Z-263 specifies construction materials and methods by
use, mandates the design of utilities, and regulates the manner of subdivisions and new
development. Notably, Z-263 establishes a separate permit requirement governed by the
Floodplain Administrator, and all appeals and all variance requests under Z-263 are
submitted to the same entity that issues land use permits for the City: the Board.
Fundamentally, Z-263 is a zoning ordinance because its provisions set specific standards,
methods, and uses governing construction -- should it occur at all. (pp. 19-24)
2. The Court next considers the argument that N.J.S.A. 40:55D-52(a) exempts
ordinances affecting public health and safety from its bar against retroactive application
of changes in zoning requirements, which would mean that the City could apply both Z-
263 and Z-264 to bar the Project. N.J.S.A. 40:55D-52(a) provides that “[t]he zoning
requirements applicable to the preliminary approval first granted and all other rights
conferred upon the developer pursuant to [N.J.S.A. 40:55D-49], whether conditionally or
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otherwise, shall not be changed for a period of two years after the date on which the
resolution of final approval is adopted . . . .” Manifestly, the statute’s plain language
does not provide an exception for municipalities to retroactively apply changes in zoning
laws relating to public health and safety to final approvals. Nor does B. & W. Associates
v. Planning Board of Hackettstown, 242 N.J. Super. 1 (App. Div. 1990), require that such
an exemption be read into the statute. In that case, the court jointly considered Sections
49 and 52(a), id. at 3, and, the court’s decision ultimately concerned the protections
afforded to B & W’s preliminary approval, see id. at 2-4. Unlike N.J.S.A. 40:55D-52(a),
N.J.S.A. 40:55D-10.5 explicitly allows for the retroactive application of ordinances
relating to health and public safety to applications for development, and N.J.S.A. 40:55D-
49(a) contains a similar, albeit more limited, exception for preliminary approvals of
major subdivisions. The Court declines to read the exceptions from those sections into
Section 52(a), which addresses final approvals. It is significant that the Legislature
included exceptions for the application of later-passed zoning ordinances relating to
public health and safety in Sections 10.5 and 49 but excluded an analogous exception in
Section 52(a). And the reference to Section 49 within Section 52(a) simply maintains for
the developer with a final approval those zoning requirements that were in place when the
developer obtained preliminary approval. In other words, it is a grant of protection to the
developer, not a grant of power to the municipality. The plain language of Section 52(a)
provides the holder of a final approval with vested rights for two years against any
changes in zoning requirements. (pp. 24-29)
3. Having determined that Section 52(a) provides the holder of a final approval with
vested rights for two years against even those changes in zoning requirements pertaining
to public health and safety, the Court next considers whether Shipyard continues to enjoy
the benefits of that protective period. As applied here, Shipyard received final approval
for the Project in July 2012 based on the Board’s failure to act. The Ordinances became
effective less than two years later and, as detailed above, led to protracted litigation
culminating in the present decision. The MLUL’s tolling provision applies when, during
an approval period, “the developer is barred or prevented, directly or indirectly, from
proceeding with the development . . . by a legal action instituted . . . to protect the public
health and welfare.” N.J.S.A. 40:55D-21. Here, the City has prevented Shipyard from
moving forward with the Project since early 2012. First, Shipyard’s hands were tied from
2012 to 2017 by various actions instituted by the City, whose arguments directly
implicated public health and welfare. And the instant case has similarly barred Shipyard
from building since 2014; it also involves public health and welfare arguments that are
plainly within the ambit of the tolling provision. Shipyard’s two-year period of
protection under Section 52(a) has been tolled. (pp. 30-32)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.
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SUPREME COURT OF NEW JERSEY
A-83/84/85 September Term 2018
082446
Shipyard Associates, LP,
Plaintiff-Respondent,
v.
City of Hoboken,
a municipal corporation of
the State of New Jersey,
Defendant-Appellant,
and
Fund for a Better Waterfront
and Hudson Tea Buildings
Condominium Association, Inc.,
Defendants/Intervenors-Appellants.
On certification to the Superior Court,
Appellate Division.
Argued Decided
January 22, 2020 May 5, 2020
Christopher D. Miller argued the cause for appellant City
of Hoboken (Maraziti Falcon, attorneys; Joseph J.
Maraziti, Jr., of counsel, and Christopher D. Miller, on
the briefs).
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Renée Steinhagen argued the cause for appellant Fund for
a Better Waterfront (New Jersey Appleseed Public
Interest Law Center and Eastern Environmental Law
Center, attorneys; Renée Steinhagen and Aaron
Kleinbaum, on the briefs).
Craig S. Hilliard submitted a brief on behalf of appellant
Hudson Tea Buildings Condominium Association, Inc.
(Stark & Stark, attorneys; Craig S. Hilliard and Eric S.
Goldberg, on the brief).
Kevin J. Coakley argued the cause for respondent
Shipyard Associates, LP (Connell Foley, attorneys; Kevin
J. Coakley, of counsel, and Nicole B. Dory and Michael
J. Affrunti, on the briefs).
Frank G. Marshall, Jr., argued the cause for amicus
curiae New Jersey State League of Municipalities (New
Jersey State League of Municipalities, attorneys; Frank
G. Marshall, Jr., on the brief).
Robert M. Washburn argued the cause for amicus curiae
New Jersey Builders Association (Flaster Greenberg,
attorneys; Robert M. Washburn, of counsel and on the
brief, and Jeremy S. Cole, on the brief).
R. William Potter submitted a brief on behalf of amicus
curiae New Jersey Association for Floodplain
Management (Potter and Dickson, attorneys; R. William
Potter and Peter Dickson, on the brief).
JUSTICE TIMPONE delivered the opinion of the Court.
This appeal is the most recent of several proceedings between Shipyard
Associates, LP (Shipyard) and the City of Hoboken (the City), which is joined
2
by intervenors Fund for a Better Waterfront (FBW) and Hudson Tea Buildings
Condominium Association, Inc. (Hudson Tea) (collectively, appellants).
Initially, as part of a larger development project, Shipyard planned to
build tennis facilities on a pier extending into the Hudson River. The City
issued land use approvals to that effect. Shipyard then amended that plan,
replacing the tennis facilities with two high-rise residential buildings on the
pier (the Project). The City ardently opposed that amendment and tried,
unsuccessfully, to block the Project by instituting a breach of contract action
against Shipyard and a challenge to Shipyard’s application for a waterfront
development permit.
Now, the City seeks to apply two ordinances -- passed after Shipyard
obtained final site plan approval for the high-rises -- that would prohibit
residential uses on the pier. In other words, the City asks us to halt Shipyard’s
proposed construction even though Shipyard’s right to build has vested under
the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.
We find that these are unquestionably zoning ordinances subject to the
limitations of the MLUL, the plain language of which contains no exception
for the retroactive application of changes in zoning requirements within two
years of the issuance of a final approval. The City therefore cannot apply
either ordinance to the Project, because they became effective within two years
3
of the issuance of Shipyard’s final approval. As such, we affirm the judgment
of the Appellate Division.
I.
We adduce the following facts from three trial court opinions and a
decision of the New Jersey Department of Environmental Protection (DEP)
that addressed lawsuits between Shipyard and appellants, which are described
more fully below.
A.
Shipyard is the owner of several pieces of property on the City’s
waterfront abutting the Hudson River. On August 21, 1997, the Hoboken
Planning Board (Board) adopted a resolution approving Shipyard’s proposal
for several luxury high-rise apartment buildings, multiple commercial retail
units, parking garages, a park, and a waterfront promenade or walkway. The
proposal also included three tennis courts and a tennis pavilion available to the
public for a fee on a platform extending into the Hudson River. Shipyard and
the City subsequently entered into a developer’s agreement memorializing the
application approved by the Board.
Shipyard developed most of the property in substantial accordance with
the agreement. However, on August 25, 2011, Shipyard filed an application
with the Board seeking to amend the site plan approval and replace the tennis
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facilities with two eleven-story residential buildings. The Board set a date of
July 10, 2012, for a hearing on Shipyard’s application.
The City was dissatisfied with the proposed changes and attempted to
block Shipyard from moving forward. For example, the Project necessitated a
new waterfront development permit from the DEP, which the City opposed.
Before the scheduled hearing before the Board, Shipyard submitted a revised
application to the DEP accounting for the required rehabilitation of the pier to
accommodate the two proposed high-rises. Notwithstanding the City’s
opposition, the DEP issued Shipyard the permit. In an unpublished decision
(Shipyard I), the Appellate Division affirmed the DEP’s decision and ruled
that the City and Hudson Tea -- the appellants in that matter -- were neither
constitutionally nor statutorily entitled to an evidentiary hearing. We denied
the City’s and Hudson Tea’s petitions for certification. In re Shipyard Assocs.
LP Waterfront Dev. Permit, 230 N.J. 401 (2017); 230 N.J. 397 (2017).
The City also filed suit against Shipyard on March 7, 2012, to compel
completion of the construction in accordance with the original developer’s
agreement that provided for tennis facilities. The trial judge, however,
dismissed the lawsuit because the City did not have an interest in Shipyard’s
properties. The judge explained that the developer’s agreement contemplated
amendments and, alternatively, existed solely to facilitate the execution of the
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Board’s 1997 resolution issuing site plan approvals to Shipyard. As a result,
the judge did not allow the agreement or the City to prevent Shipyard from
applying to the Board for a modification of the approvals.
Before the trial judge’s ruling, on July 10, 2012, the Board voted to deny
Shipyard’s application for the Project without holding a hearing. The Board
was concerned with the City’s pending litigation, among other things, and
determined it best not to rule on the merits of Shipyard’s application.
In response, Shipyard filed suit seeking automatic approval of its
application under the MLUL. Shipyard argued that the Board’s denial was an
impermissible delay rather than an act. A different trial judge heard the case
and agreed, finding that the Board’s “complete disregard of its statutory duty
to hold a hearing on the merits constitute[d] a failure to act.” Such failure to
act “within the statutory period compel[led] the enforcement of automatic
approval” under N.J.S.A. 40:55D-61, a provision of the MLUL. The judge
entered a corresponding order finding Shipyard’s application automatically
approved. Later, the judge denied the Board’s motion for reconsideration and
clarified that Shipyard’s approval was retroactive to the close of the Board’s
statutorily prescribed period to act: July 2012.
The Board appealed that decision, and the City appealed the ruling
dismissing its breach of contract suit. In an unpublished decision (Shipyard
6
II), the Appellate Division consolidated the cases and affirmed the rulings. We
denied certification. Shipyard Assocs., L.P. v. Hoboken Planning Bd., 232
N.J. 148 (2018); 232 N.J. 133 (2018); 232 N.J. 106 (2018).
B.
In late 2013, during the pendency of those proceedings, the City passed
two ordinances: Ordinance Z-263 (Z-263) and Ordinance Z-264 (Z-264)
(collectively, the Ordinances). The Ordinances became effective in January
2014 and, as found by the trial court below, were “part of a larger push by
State and Federal agencies to deal with issues relating to Hurricane Sandy.”
The City designated Z-264 specifically as a zoning ordinance adopted pursuant
to the MLUL. Z-264 provides, in pertinent part, that “no new construction or
substantial improvement of existing structures shall be permitted on piers or
platforms projecting into or over the Hudson River or Weehawken Cove.” The
application of Z-264 to the Project would prevent its completion altogether.
Z-263 expressly provides that it was enacted pursuant to the City’s
legislatively delegated police power. It amends the City’s municipal code to
reflect the Federal Emergency Management Agency’s Advisory Flood Hazard
Map. It is virtually identical to the DEP’s Model Flood Damage Prevention
Ordinance.
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Z-263 further establishes coastal high hazard areas (V Zones) in which
“[a]ll construction shall be landward of the mean high tide.” The only
exceptions for construction “seaward of the mean high tide” are limited to
certain uses: (1) those “located or carried out in close proximity to water,”
such as port facilities designed to unload cargo and passengers or
“ship[-]building and ship[-]repair facilities”; or (2) “open space and outdoor
passive and active recreational uses.” Notably, the pier in question is seaward
of the mean high tide in a V Zone, but if the ordinance were applicable here,
the Project would not satisfy either of Z-263’s permitted uses.
Z-263 restricts construction in other ways as well. For instance, it
establishes an additional permit requirement governed by the City’s Floodplain
Administrator for all proposed construction in V Zones. It also specifies floor
heights for certain elevated buildings. Moreover, in “all areas of special flood
hazards,” Z-263 provides “specific standards” for construction materials and
methods that vary by use, mandates the design of utilities such as water supply
and sewage systems, and regulates proposed subdivisions and new
development. The Board has jurisdiction over applications for variances from
these and other requirements of the ordinance, as well as appeals from
decisions of the Floodplain Administrator.
8
C.
On February 21, 2014, Shipyard filed an action in federal court to
challenge the City’s proposed application of the Ordinances to the Project.
The court dismissed the action without prejudice, allowing Shipyard to re -file
in state court to resolve claims arising under New Jersey law.
On March 28, 2016, Shipyard asserted seven claims against the City in
the Law Division. A year later, Shipyard filed a motion for summary
judgment on two of those claims, which the trial court stayed pending the
Appellate Division’s resolution of Shipyard II. After the Appellate Division
decided Shipyard II, the trial court lifted the stay and Shipyard renewed its
motion for summary judgment. The City, joined by intervenors Hudson Tea
and FBW, opposed Shipyard’s motion and cross-moved for summary judgment
seeking to dismiss the same claims.
Shipyard argued that Shipyard II finalized its application for the Project,
thereby insulating it from any zoning ordinances passed within two years of its
final approval under the MLUL pursuant to N.J.S.A. 40:55D-52(a) (Section
52(a)). Shipyard further contended that it was entitled to summary judgment
because, under the Legislature’s 2010 revision to the MLUL, only those
regulations in effect at the time of an application for development govern that
application.
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The City claimed that Z-263 could block the Project even though
Shipyard obtained final approval. Although there was little dispute that Z-264
is a zoning ordinance, the City asserted that Z-263 is a general environmental
regulation -- not a zoning ordinance -- and therefore not subject to the two-
year period of protection in Section 52(a). Alternatively, the City argued that
it could apply both ordinances because Section 52(a) contains an implied
exception for the retroactive application of changes in zoning requirements
relating to public health and safety.
On October 17, 2017, the trial court entered an order granting Shipyard’s
motion for summary judgment, denying the City’s motion, and dismissing the
remaining claims as moot. The court agreed with Shipyard that, as per the
Appellate Division’s decision in Shipyard II, Shipyard’s application for the
Project received final approval in July 2012. The court found that, under the
plain terms of Section 52(a), any zoning ordinance passed within two years of
that time could not apply to the Project. The court also rejected the argument
that Section 52(a) incorporated by reference the public health and safety
exceptions of two other sections of the MLUL -- N.J.S.A. 40:55D-10.5 and -49
-- because those sections apply to application review and preliminary
approvals, respectively, not final approvals. Because Shipyard had received
final approval for the Project on July 10, 2012, and “[t]he plain language of
10
[Section 52(a)] does not contain a health and public safety exception after final
approval,” the court rejected the City’s effort to defeat the Project.
The court further rejected the City’s argument that Z-263 was not a
zoning ordinance and therefore not subject to the limitations of the MLUL.
The court found that Z-263 “fundamentally chang[ed] the zoning of land where
the [P]roject was to be built.” The court further observed that Z-263 restricts
the Property “to recreation use, which has the same effect as a zoning
ordinance.” The court also emphasized that Z-263 “restricts elevated
buildings[’] lowest floor height, changes to improved or unimproved real
estate[,] and has a special provision for water uses and historic structures.”
Therefore, “Z-263 . . . does much more than just touch upon the use of land . . .
. It actually [a]ffects what and where structures can be built similar to what a
typical zoning ordinance does . . . .” Accordingly, the court held that Z-263
was subject to Section 52(a)’s “insulation of a project for two years from
changes in the zoning law.”
D.
The City and intervenors appealed the trial court’s order. The Appellate
Division, however, affirmed, “conclud[ing] that the trial judge reached the
correct result, and little further discussion is required.” The court added only
two comments. First, the Appellate Division recognized that the trial court
11
correctly ruled that Z-263 would “completely change[] the permitted use of
property in a zone” and therefore was a zoning ordinance subject to Section
52(a).
Second, the Appellate Division observed that the scope of its decision
was limited because resolution of this case does not require determining
whether a zoning ordinance can modify a previously granted final approval.
The court reasoned that the public health and safety exception from N.J.S.A.
40:55D-49 (Section 49), which appellants asked the court to read into Section
52(a), only allows a new zoning ordinance to modify a preliminary approval,
not vitiate it. The court underscored that, here, application of the Ordinances
to the Project would require the complete “revocation of a previously-granted
final approval, a result contrary to the plain wording of [Section 52(a)].”
Accordingly, the court concluded that, “even if [S]ection 52(a) were construed
as implicitly including the exceptions set forth in [Section 49], appellants
would not prevail in this case.”
We granted certification. 238 N.J. 377 (2019); 238 N.J. 152 (2019); 238
N.J. 150 (2019). We also granted leave to the New Jersey State League of
Municipalities (NJLM), New Jersey Builders Association (NJBA), and New
Jersey Association for Floodplain Management (NJAFM) to participate as
amici curiae.
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II.
A.
The City argues that the trial court and Appellate Division erred in
finding that Section 52(a) bars the City from applying the Ordinances to the
Project. Although the City acknowledges that Z-264 is a zoning ordinance, it
contends that Z-263 is more aptly characterized as a flood control or general
environmental ordinance, and therefore escapes the restrictions of the MLUL.
Specifically, the City highlights that it enacted Z-263 pursuant to the police
power to amend the City’s flood-damage-prevention-requirements, not the
City’s zoning requirements. The City submits that its Floodplain
Administrator administers Z-263’s permit requirement, independent from the
Board’s site plan review and approval process. As Z-263 does not implicate
the planning and zoning concerns of the MLUL, the City concludes it is not
subject to the two-year insulation afforded to final approvals under Section
52(a).
To the extent this Court disagrees, the City argues that we should
construe Section 52(a) in harmony with the rest of the MLUL, which contains
various exceptions for the application of regulations pertaining to public health
and safety. In particular, the City suggests that we read the public health and
13
safety exceptions from N.J.S.A. 40:55D-10.5 (Section 10.5) and Section 49
into Section 52(a).
Hudson Tea relies on and adopts the City’s arguments. FBW joins as
well, adding that a developer’s vested rights cannot trump the enforcement of
valid public safety regulations. FBW further observes that Section 52(a)
expressly incorporates the rights conferred upon a developer with a
preliminary approval in Section 49. FBW reasons that Section 52(a)
incorporates all of the provisions of Section 49, thereby allowing a
municipality to modify a developer’s final approval by changing the zoning
requirements that relate to public health and safety.
The NJLM agrees with appellants that the MLUL should not bar
application of the Ordinances and argues that the purpose of the statute is to
facilitate development in a manner that promotes public health and safety.
Accordingly, the NJLM recommends that we effectuate that purpose by
construing Section 52(a) to contain an exception for zoning ordinances that
affect public health and safety. Likewise, the NJAFM contends that this Court
should apply the Ordinances to the Project because they were passed in
response to legitimate public health and safety concerns, intensified by the rise
in sea levels and the severity and frequency of flooding during severe storm
events. The NJAFM suggests that, “where public health and safety are at
14
stake,” we “should tip the scales of justice in favor of expansively reading the
authority of government . . . to enact and broadly enforce protection laws and
regulations.”
B.
Shipyard first contests the City’s characterization of Z-263 as something
other than a zoning ordinance. Shipyard points out that Z-263 changes the
permitted uses in V Zones and elsewhere, establishes a new permit
requirement, and contains a number of provisions regulating construction,
utilities, subdivisions, and new development. Shipyard asserts that, no matter
what the City calls Z-263, it operates as a zoning ordinance and cannot subvert
the requirements of the MLUL.
Shipyard also opposes appellants’ recommendation to read an exception
for public health and safety into Section 52(a). Shipyard underscores that the
plain language of Section 52(a) provides for no such exception. Shipyard also
echoes the Appellate Division’s ruling that reading the public health and safety
exception from Section 49 into Section 52(a) would still not allow the City to
block the Project because that exception authorizes only modification of a
preliminary approval. Finally, Shipyard disputes appellants’ reading of the
MLUL as inconsistent with the Legislature’s intent to standardize the approval
process and shield development applications from regulatory harassment.
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Shipyard urges us to enforce the terms of Section 52(a) as written, thereby
precluding application of the Ordinances to the Project. Shipyard adds that we
should toll the two-year period of statutory protection in light of appellants’
endless litigation against the Project.
In support of Shipyard’s position, the NJBA adds that reading Section
52(a) in conjunction with Sections 10.5 and 49 illustrates that the Legislature
contemplated greater protections for developers at each successive stage of the
development approval process. The NJBA reasons that the Legislature
intentionally omitted a public health and safety exception from Section 52(a)
in order to protect developers that have invested substantial resources into the
process to obtain final approvals.
III.
In reviewing the trial court’s grant of summary judgment in favor of
Shipyard, we use the same standard that court employed. Globe Motor Co. v.
Igdalev, 225 N.J. 469, 479 (2016). We will affirm if there are no genuine
issues of material fact and the moving party is entitled to summary judgment
as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
539-40 (1995); R. 4:46-2. As the non-moving party, the City is entitled to “the
benefit of all favorable evidence and inferences presented in the record before
us.” Murray v. Plainfield Rescue Squad, 210 N.J. 581, 585 (2012).
16
As a threshold matter, we find it necessary to circumscribe the issues on
appeal. We will not consider the merits of either Shipyard I or Shipyard II.
Put differently, our review assumes Shipyard correctly received both final
approval and a waterfront development permit, and that the City’s lawsuit
based on the developer’s agreement was properly dismissed. Additionally, we
will not decide whether the Ordinances were valid exercises of the City’s
police or zoning powers. Instead, review of the grant of summary judgment
turns upon two discrete questions of law: Is Z-263 a zoning ordinance subject
to the MLUL; and, if so, does Section 52(a) contain an exception for
retroactive application of changes in zoning requirements relating to public
health and safety to projects that have obtained final approval?
We review both questions of statutory construction de novo. 388 Route
22 Readington Realty Holdings, LLC v. Township of Readington, 221 N.J.
318, 338 (2015). Our primary goal in interpreting a statute “is to discern and
effectuate the intent of the Legislature.” Murray, 210 N.J. at 592. This Court
first considers “the statute’s plain language, ascribing to the words used ‘their
ordinary meaning and significance.’” Ibid. (quoting DiProspero v. Penn, 183
N.J. 477, 492 (2005)). “When the provisions of a statute are clear and
unambiguous, they should be given their literal significance, unless it is clear
17
from the text and purpose of the statute that such meaning was not intended.”
Turner v. First Union Nat’l Bank, 162 N.J. 75, 84 (1999).
We review statutory language “in context with related provisions so as
to give sense to the legislation as a whole.” DiProspero, 183 N.J. at 492. For
instance, “[w]here [the Legislature] includes particular language in one section
of the statute but omits it in another section of the same [a]ct, it is generally
presumed that [the Legislature] acts intentionally and purposely in the
disparate inclusion or exclusion.” DCPP v. R.L.M., 236 N.J. 123, 148 (2018)
(second, third, and fourth alterations in original) (quoting DYFS v. A.L., 213
N.J. 1, 21 (2013)).
Importantly, “[i]t is not our function to rewrite a plainly written statute
or to presume that the Legislature meant something other than what it
conveyed in its clearly expressed language.” Murray, 210 N.J. at 592.
Accordingly, we consider extrinsic interpretative aids, such as legislative
history, only “when the statute is ambiguous, leading to more than one
plausible interpretation; it leads to an absurd result inconsistent with any
legitimate public policy objective; or it is at direct odds with an overall
statutory scheme.” Ibid.
18
IV.
A.
First, we address the City’s argument that, because Z-263 does not work
a change in the zoning requirements, the two-year protection against zoning
requirement changes afforded to final approvals under Section 52(a) does not
apply. If the City were correct, Z-263 would block the Project. We find,
however, that the City is mistaken in its characterization of Z-263.
To be sure, municipalities do not have the inherent power to zone;
rather, “[z]oning is a police power that is vested in the legislative branch of
government.” Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177
N.J. 338, 349 (2003). The Legislature assigned zoning powers to
municipalities in the MLUL, which is “a comprehensive statute that allows
municipalities to adopt ordinances to regulate land development in a manner
which will promote the public health, safety, morals and general welfare.”
N.J. Shore Builders Ass’n v. Township of Jackson, 199 N.J. 38, 53 (2009)
(internal quotation marks omitted) (quoting Rumson Estates, 177 N.J. at 349).
Consequently, a municipality’s zoning power must “be exercised in strict
conformity with the delegating enactment -- the MLUL.” Price v. Himeji,
LLC, 214 N.J. 263, 284 (2013) (quoting Nuckel v. Borough of Little Ferry
Planning Bd., 208 N.J. 95, 101 (2011)).
19
Section 52(a), which applies to final approvals of site plans or major
subdivisions, provides, in part, that
[t]he zoning requirements applicable to the preliminary
approval first granted and all other rights conferred
upon the developer pursuant to [N.J.S.A. 40:55D-49],
whether conditionally or otherwise, shall not be
changed for a period of two years after the date on
which the resolution of final approval is adopted . . . .
[(emphasis added).]
Because it is undisputed that Shipyard received final approval for its p lans,
Section 52(a) would appear to prohibit the retroactive application of Z-263 to
the Project -- if Z-263 is in fact a zoning ordinance subject to the MLUL’s
requirements.
In Jackson, we considered whether an ordinance that, upon the removal
of certain trees, required property owners either to replace the trees or pay into
a public tree-planting fund, was a zoning ordinance subject to the MLUL. 199
N.J. at 49. At issue was whether to review the validity of the ordinance under
the heightened standard of review that governs ordinances subject to the
MLUL. Id. at 52.
We held that the ordinance was not a zoning ordinance subject to the
MLUL. Id. at 54. In rendering our decision, we first noted that the
municipality explicitly enacted the ordinance under the police power statute.
Ibid. We then analyzed the disputed ordinance and determined that,
20
[a]lthough it touches on the use of land, the ordinance
is not a planning or zoning initiative that necessarily
implicates the MLUL. Indeed, there are numerous
ordinances, for example, health codes, environmental
regulations, building codes, and laws regulating the
operation of particular businesses, that touch on the use
of land, but are not within the planning and zoning
concerns of the MLUL. Those ordinances are enacted
pursuant to the general police power and apply to
everyone. That is the nature of the tree removal
ordinance at issue here: it is a generic environmental
regulation, and not a planning or zoning initiative.
[Ibid. (emphases added).]
The Appellate Division drew guidance from our discussion in Jackson
when tasked with determining whether an ordinance that restricted smoking
inside tobacco retail stores to “pre-purchase sampling” for “no more than 2
minutes” was subject to the MLUL. Sparroween, LLC v. Township of West
Caldwell, 452 N.J. Super. 329, 334 (App. Div. 2017). In that case, owners of a
tobacco retail store argued that the ordinance was a land use ordinance and that
their store was “a pre-existing non-conforming use exempt from [its]
prohibitions” under the MLUL. Id. at 338. The Appellate Division disagreed.
Id. at 338-39. Citing our decision in Jackson, the Appellate Division reasoned
that “many ordinances,” like the smoking ordinance, “touch on the use of land,
but are not within the planning and zoning concerns of the [MLUL].” Id. at
339. Accordingly, the Appellate Division held that the smoking ordinance was
“a valid municipal health ordinance” not subject to the MLUL. Ibid.
21
According the City all favorable inferences, Murray, 210 N.J. at 584-85,
we do not doubt that the City passed Z-263 to prevent flooding in the wake of
Hurricane Sandy. Indeed, the City modeled the ordinance after the DEP’s
Model Flood Damage Prevention Ordinance. The City also enacted Z-263
pursuant to its police power, a fact we found significant in Jackson. However,
we agree with the trial court that, “even if a zoning ordinance has an effect on
public health and safety, or is motivated by health and public safety concerns,
that does not re-characterize a zoning ordinance as a general police power
ordinance.” As in Jackson, then, we will consider not only how the
municipality characterizes the ordinance, but also how the ordinance functions
in practice.
To that end, we must look no further than how Z-263 impacts the Project
to understand why it is a zoning ordinance. Z-263 allows only two uses for
construction seaward of the mean high tide in V Zones: (1) uses “located or
carried out in close proximity to water,” such as port facilities designed to
unload cargo and passengers or “ship[-]building and ship[-]repair facilities”; or
(2) “open space and outdoor passive and active recreational uses.” Shipyard
planned to construct the Project in a V Zone seaward of the mean high tide.
Before the enactment of Z-263, Shipyard could build residential high-rises on
the pier, but Z-263’s winnowing of the permissible uses in V Zones eliminated
22
any possibility of moving forward with the Project. We agree with the trial
court that “Z-263 fundamentally chang[es] the zoning of land where the
[P]roject was to be built.”
Z-263 is also readily distinguishable from the ordinances at issue in
Jackson and Sparroween. Those ordinances did not place limits on where or
how one could build. They regulated subject matter -- planting trees and
smoking, respectively -- divorced from typical “planning and zoning
concerns.” Jackson, 199 N.J. at 54. For those reasons, they simply “touch[ed]
on the use of land.” Ibid.
But here, we find that Z-263 is unmistakably a “planning or zoning
initiative.” Ibid. Beyond changing the zoning of land in V Zones, the
ordinance specifies floor heights for certain elevated buildings. In “all areas of
special flood hazards,” Z-263 specifies construction materials and methods by
use, mandates the design of utilities, and regulates the manner of subdivisions
and new development. Notably, Z-263 establishes a separate permit
requirement governed by the Floodplain Administrator. We find it significant
that appeals of the Floodplain Administrator’s decisions and all variance
requests under the ordinance are submitted to the same entity that issues land
use permits for the City: the Board. Fundamentally, we find that Z-263 is a
23
zoning ordinance because its provisions set specific standards, methods, and
uses governing construction -- should it occur at all.
For those reasons, we reject the argument that Z-263 is exempt from the
strictures of the MLUL. We therefore turn to the alternative argument that
Section 52(a) of that statute exempts ordinances affecting public health and
safety from its bar against retroactive application of changes in zoning
requirements. Appellants argue that Section 52(a) does incorporate such an
exemption and that the City can therefore apply both Z-263 and Z-264 to the
Project.
B.
Once again, we begin by reviewing the plain language of Section 52(a),
according to which
[t]he zoning requirements applicable to the preliminary
approval first granted and all other rights conferred
upon the developer pursuant to [N.J.S.A. 40:55D-49],
whether conditionally or otherwise, shall not be
changed for a period of two years after the date on
which the resolution of final approval is adopted . . . .
Manifestly, the statute’s plain language does not provide an exception for
municipalities to retroactively apply changes in zoning laws relating to public
health and safety to final approvals. Despite the absence of such an exception,
appellants repeatedly cite B. & W. Associates v. Planning Board of
Hackettstown, 242 N.J. Super. 1 (App. Div. 1990), for the proposition that
24
Section 52(a) exempts the retroactive application of ordinances affecting
public health and safety.
We read that case differently. There, the Appellate Division held that B.
& W. Associates (B & W) could use its industrial property for warehousing
even though the Town of Hackettstown had removed warehousing from the
permissible list of uses in the property’s zone after B & W received
preliminary approval. Id. at 2, 4. The court construed the MLUL to guarantee
B & W the right to use the lot in question for warehousing despite the
subsequent change to zoning laws. Id. at 4.
Because B & W also had final approvals for two other lots, the court
jointly considered Sections 49 and 52(a). Id. at 3. We recognize that, taken
out of context, the court’s reasoning could seemingly apply equally to both
provisions and therefore suggest that municipalities can apply changes in
zoning laws relating to public health and safety to final approvals. See id. at 4
(“While a municipality is granted continuing authority to change or amend its
ordinances, absent a problem of public health and safety it may not do so to the
detriment of an applicant who has received prior subdivision approval for the
time specified in the statute.” (emphasis added)). Yet, the court never opined
on a zoning ordinance affecting public health and safety; rather, the thrust of
the opinion was to acknowledge that the MLUL protected B & W’s property
25
from changes in permitted uses. Id. at 4 (“The [MLUL] does not countenance
such a change in the ‘rules of the game’ upon which B & W has justifiably
relied.” (quoting Hilton Acres v. Klein, 35 N.J. 570, 580 (1961))). And, the
court’s decision ultimately concerned the protections afforded to B & W’s
preliminary approval. See id. at 2-4. Accordingly, we read the dicta
highlighted by appellants to apply only to Section 49, and we consider their
incorporation-by-implication argument as a novel question.
As indicated above, Section 52(a) does not contain an exception for
ordinances that affect health and public safety. Section 10.5, in contrast,
explicitly allows for the retroactive application of ordinances relating to health
and public safety to applications for development. See N.J.S.A. 40:55D-10.5
(“Any provisions of an ordinance, except those relating to health and public
safety, that are adopted subsequent to the date of submission of an application
for development, shall not be applicable to that application for development.”).
Section 49 contains a similar, albeit more limited, exception for preliminary
approvals of major subdivisions. See N.J.S.A. 40:55D-49(a) (“[N]othing
herein shall be construed to prevent the municipality from modifying by
ordinance such general terms and conditions of preliminary approval as relate
to public health and safety . . . .”).
26
We decline to read the exceptions from Sections 10.5 and 49 -- allowing
municipalities to retroactively apply zoning ordinances affecting public health
and safety -- into Section 52(a). By their own terms, those sections apply only
to “application[s] for development” and “preliminary approval[s],” not final
approvals. See N.J.S.A. 40:55D-10.5, -49. We find it significant that the
Legislature included exceptions for the application of later-passed zoning
ordinances relating to public health and safety in Sections 10.5 and 49 but
excluded an analogous exception in Section 52(a). We presume the
Legislature acted deliberately in doing so. See R.L.M., 236 N.J. at 148.
Considering Section 52(a) in context with Sections 10.5 and 49 “so as to
give sense to the legislation as a whole,” DiProspero, 183 N.J. at 492, we agree
with the NJBA’s view that the Legislature likely contemplated greater
protections for developers at successive stages of the development approval
process. Indeed, zoning ordinances affecting public health and safety may
govern applications for development, N.J.S.A. 40:55D-10.5, but municipalities
may only “modify[] by ordinance such general terms and conditions of
preliminary approval,” N.J.S.A. 40:55D-49(a) (emphasis added), and the
MLUL makes no provision for municipalities to apply new zoning ordinances
to final approvals, N.J.S.A. 40:55D-52(a).
27
In addition, we reject appellants’ argument that Section 52(a)
incorporates a public health and safety exception by reference to the
“preliminary approval first granted and all other rights conferred upon the
developer pursuant to [Section 49].” That language simply maintains for the
developer with a final approval those zoning requirements that were in place
when the developer obtained preliminary approval. In other words, it is a
grant of protection to the developer, not a grant of power to the municipality.
See Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use
Bd., 407 N.J. Super. 404, 426 (App. Div. 2009) (holding that, although the
developer’s period of preliminary approval terminated by operation of law,
“the developer’s protection from rezoning changes was re-established . . .
when the Board granted final major subdivision approval”).
In short, we find no reason to import an exception into Section 52(a)
where the Legislature did not provide one. We emphasize that “[i]t is not our
function to rewrite a plainly written statute or to presume that the Legislature
meant something other than what it conveyed in its clearly expressed
language.” Murray, 210 N.J. at 592. Therefore, we find that the plain
language of Section 52(a) provides the holder of a final approval with vested
rights for two years against any changes in zoning requirements. See William
M. Cox & Stuart R. Koenig, N.J. Zoning and Land Use Administration § 23-
28
5.2 at 463 (2019) (“A final approval of a site plan grants a developer vested
rights against changes in the zoning requirements for a further period of two
years after the date of the adoption of a resolution of final approval.”); see also
Darst v. Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 338
(App. Div. 2009) (construing Section 52(a) to provide developers with “the
right to implement their site plan after its final approval, [a right that] could
not be removed from them within the two-year statutory period”); Britwood
Urban Renewal, LLC v. City of Asbury Park, 376 N.J. Super. 552, 570 (App.
Div. 2005) (“[O]nce the final site plan application was approved, [the
developer’s] rights were vested and the [c]ity could not thereafter impose
further conditions on that approval.”); R.J.P. Builders, Inc. v. Township of
Woolwich, 361 N.J. Super. 207, 216 (App. Div. 2003) (observing that Section
52(a) “establishes a two-year period during which a developer is protected
from changes in zoning law or other rights conferred by final . . . approval”).
Having determined that Section 52(a) provides the holder of a final
approval with vested rights for two years against even those changes in zoning
requirements pertaining to public health and safety, we next consider whether
Shipyard continues to enjoy the benefits of that protective period.
29
C.
As applied here, Shipyard received final approval for the Project in July
2012 based on the Board’s failure to act on Shipyard’s application, as found in
Shipyard II. The Ordinances became effective less than two years later in
January 2014 and, as detailed above, led to protracted litigation culminating in
the present decision.
The MLUL’s tolling provision applies when, during an approval period,
the developer is barred or prevented, directly or
indirectly, from proceeding with the development
otherwise permitted under such approval by a legal
action instituted . . . to protect the public health and
welfare or by a directive or order issued by any State
agency, political subdivision or court . . . and the
developer is otherwise ready, willing and able to
proceed with said development . . . .
[N.J.S.A. 40:55D-21.]
Here, the City has prevented Shipyard from moving forward with the
Project since early 2012. First, Shipyard’s hands were tied from 2012 to 2017
by various actions instituted by the City, including its lawsuits and ensuing
appeals in both Shipyard I and II. See, e.g., Friends of Peapack-Gladstone,
407 N.J. Super. at 429 (“As a separate basis for tolling, the filing of the first
lawsuit by plaintiff . . . also substantially thwarted the developer’s ability to
proceed with construction.”). Moreover, the City’s arguments in those cases
directly implicated public health and welfare, as contemplated by the tolling
30
provision. As just one example, the City argued to DEP in Shipyard I “that the
[P]roject will adversely impact public health, safety, traffic, the environment,
and enforcement of local ordinances.”
Second, although Shipyard prevailed in those appeals, the instant case
has similarly barred Shipyard from building since 2014. See id. at 431 (“[T]he
pendency of the current appeal and the underlying Law Division proceedings
on plaintiff’s second lawsuit (which have consumed more than two years to
date) tolled the time for construction . . . .”). To that end, the City has
repeatedly asserted that the Ordinances mandate retroactive application
because they relate to public health and safety -- arguments that are plainly
within the ambit of the tolling provision.
We find the litigation that has given rise to Shipyard I, II, and this case
has thwarted Shipyard’s proposed construction since it received final approval
in 2012 and has therefore tolled the two-year period of protection against
changes in zoning requirements under Section 52(a).
D.
In sum, we hold that Z-263 is a zoning ordinance subject to the
limitations of the MLUL. And, although Sections 10.5 and 49 contain
exceptions to the bar against retroactive application of changes in zoning
requirements to applications and preliminary approvals, respectively, we find
31
no similar exception applicable to final approvals in Section 52(a). The City
therefore cannot use either Z-263 or Z-264 to amend the zoning requirements
for the Project, as both ordinances became effective during Shipyard’s two-
year period of insulation under Section 52(a). Further, we find that Shipyard’s
two-year period of protection under Section 52(a) has been tolled.
V.
The judgment of the Appellate Division is affirmed. Consistent with this
opinion, we add only that Shipyard’s period of statutory protection has been
tolled.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’S opinion.
32