SHIPYARD ASSOCIATES, L.P. VS. HOBOKEN PLANNING BOARDCITY OF HOBOKEN VS. SHIPYARD ASSOCIATES, L.P. SHIPYARD ASSOCIATES, L.P. VS. HUDSON COUNTY PLANNING BOARD, Â(L-4157-12, L-1238-12, L-3278-12, HUDSON COUNTY AND STATEWIDE)(CONDOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4504-14T3
A-4637-14T3
A-4763-14T3
SHIPYARD ASSOCIATES, L.P.,

Plaintiff-Respondent,

v.

HOBOKEN PLANNING BOARD,

Defendant-Appellant.
_____________________________

CITY OF HOBOKEN,

Plaintiff-Appellant,

v.

SHIPYARD ASSOCIATES, L.P.,

Defendant-Respondent.
______________________________

SHIPYARD ASSOCIATES, L.P.,

Plaintiff-Respondent,

v.

HUDSON COUNTY PLANNING BOARD
and HUDSON COUNTY BOARD OF
CHOSEN FREEHOLDERS,

Defendants.
_______________________________
 Argued February 28, 2017 – Decided August 2, 2017

Before Judges Reisner, Rothstadt and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
Nos. L-4157-12, L-1238-12, L-3278-12.

Dennis M. Galvin argued the cause for
appellant Hoboken Planning Board in A-4504-14
(The Galvin Law Firm, attorneys; Mr. Galvin,
of counsel; Mr. Galvin and Steven M. Gleeson,
on the briefs).

Joseph J. Maraziti, Jr. argued the cause for
appellant City of Hoboken in A-4637-14
(Maraziti Falcon, LLP, attorneys; Mr.
Maraziti, of counsel; Christopher D. Miller,
on the briefs).

Eric S. Goldberg and Craig S. Hilliard argued
the cause for intervenor/appellant in A-4763-
14 Hudson Tea Buildings Condominium
Association, Inc. (Stark & Stark, attorneys;
Mr. Goldberg, Mr. Hilliard, and H. Matthew
Taylor, on the briefs).

Kevin J. Coakley and Nicole B. Dory argued the
cause for respondent Shipyard Associates, L.P.
(Connell Foley LLP, attorneys; Mr. Coakley,
of counsel; Ms. Dory, Christopher J. Borchert,
and Nicholas W. Urciuoli, on the briefs).

Renée Steinhagen argued the cause for amicus
curiae Fund for a Better Waterfront (New
Jersey Appleseed Public Interest Law Center,
attorneys; Ms. Steinhagen, on the brief).

PER CURIAM

These three appeals arise from an application by developer

Shipyard Associates, L.P. (Shipyard) to build two additional high-

rise residential apartment buildings as part of its planned unit

2 A-4504-14T3
development (PUD) on the Hoboken waterfront. After reviewing the

record in light of the applicable standard of review, we affirm

the orders on appeal in each case. See Nuckel v. Bor. of Little

Ferry Planning Bd., 208 N.J. 95, 102 (2011).

The history of the development dates back to a January 7,

1997 resolution of the Hoboken Planning Board (Planning Board),

granting Shipyard preliminary site plan and subdivision approval

for the PUD. As approved, the PUD included several luxury

residential high-rise apartment buildings comprising about 1200

units, multiple commercial retail units, parking garages, a park,

a waterfront promenade or walkway, and a recreation pier. The PUD

contemplated that Shipyard might also construct a public marina

and other amenities. All of that construction was to take place

on Blocks A through F of the site. On Block G, the PUD was to

include three tennis courts and a tennis pavilion, which would be

available to the public for a fee, and thirty-seven surface parking

spaces.1

Shipyard subsequently obtained final site plan and

subdivision approvals and built the approved residential high-

rises, commercial space, waterfront promenade, park, recreation

pier, a marina, a ferry stop, and all other amenities except the

1
We will refer to these amenities collectively as "the tennis
courts."

3 A-4504-14T3
tennis courts. Some of that construction, including the ferry

stop and a small increase in the number of residential units,

required applications to modify the prior approvals. The Planning

Board granted those applications, without challenge.

A controversy ensued, however, when Shipyard applied to the

Planning Board on August 25, 2011 for amended preliminary and

final site plan approval, seeking permission to build two more

residential towers (the Monarch project), comprising seventy-eight

units, in lieu of building the tennis courts.2 Pursuant to

N.J.S.A. 40:55D-10.3, Shipyard's application was deemed complete

2
For the proposed tennis court development on Block G, which
included construction on a platform extending into the water (the
North Platform), Shipyard needed a waterfront development permit
and a water quality certificate from the Department of
Environmental Protection (DEP). However, the DEP denied
Shipyard's application to build the tennis courts. Shipyard then
submitted a revised application, seeking DEP's approval to build
the two additional high-rises instead. The revised application
involved a more extensive reconstruction of the North Platform so
it could accommodate the high-rises. After an extensive review
of the safety and environmental issues, DEP issued the permits.
The City, the Fund for a Better Waterfront, and the Hudson Tea
Buildings Condominium Association, Inc., filed an appeal
asserting, among other things, that the DEP had given insufficient
consideration to possible flooding and other safety concerns. We
affirmed the DEP's decision, and the Supreme Court recently denied
certification. In re Shipyard Assocs. LP Waterfront Devel. Permit
& Water Quality Certificate No. 0905-07-0001.2 WFD 110001, Nos.
A-4873-13 and A-5004-13 (App. Div. Feb. 3, 2017), certif. denied,
___ N.J. ___ (2017).

4 A-4504-14T3
on October 13, 2011,3 but the application was not scheduled for a

hearing until many months later.

In the meantime, on March 2012, the City sued Shipyard in the

Law Division (L-1238-12) to enforce the City's purported rights

under a December 7, 1997 developer's agreement with Shipyard.

Thereafter, on July 10, 2012, the Planning Board refused to

consider the merits of Shipyard's application, although Shipyard's

attorney and witnesses were present on the scheduled July 10

hearing date and were fully prepared to present the application.

Instead of hearing the application, the Board denied it "without

prejudice," over Shipyard's vigorous objection, on the theory that

the Board lacked jurisdiction to entertain the application while

the City's lawsuit was pending. In turn, Shipyard sued the

Planning Board (L-4157-12), asserting that the Board's refusal to

adjudicate the merits of its application within the statutory

timeframe set forth in N.J.S.A. 40:55D-61, resulted in its

automatic approval pursuant to that section.4

3
The resolution deeming the application complete is not in the
parties' appendices; we derive the information from the trial
court's January 23, 2014 opinion, and there appears to be no
dispute on this point.
4
The claim should have come as no surprise. Shipyard's attorney
had sent multiple letters to the Board's attorney prior to July
10, 2012, putting the Board on notice that N.J.S.A. 40:55D-22(a)
obligated the Board to hear Shipyard's application despite the

5 A-4504-14T3
 In a separate action (L-3278-12), Shipyard sued the Hudson

County Planning Board (County Board), which had denied, on the

merits, Shipyard's application for approval of the Monarch

project. Shipyard also sued the Hudson County Board of Chosen

Freeholders (Freeholder Board), which had affirmed the County

Board's action.5

The Law Division eventually consolidated the three lawsuits

and issued decisions favorable to Shipyard in all three cases.

These appeals followed, and we have consolidated them for purposes

of this opinion.

In A-4637-14, the City of Hoboken, and intervenors Fund for

a Better Waterfront (FWB) and the Hudson Tea Buildings Condominium

Association, Inc. (Hudson Tea),6 appeal from a June 27, 2013 order

pending litigation, and that a refusal to decide its application
on the merits would result in automatic approval under N.J.S.A.
40:55D-61.
5
The County Board has limited jurisdiction to review land use
applications for "land development along county roads or affecting
county drainage facilities." N.J.S.A. 40:27-6.6. Its review is
"limited for the purpose of assuring a safe and efficient county
road system." Ibid. The Freeholder Board has authority to review
the County Board's decision. N.J.S.A. 40:27-6.9. Neither of those
two entities is participating in these appeals.
6
Hudson Tea operates a large residential condominium located
nearby but not directly on the waterfront. Its apparent concern
is that the Monarch project towers will block its residents' water
view.

6 A-4504-14T3
granting summary judgment dismissing the City's complaint seeking

to enforce the developer's agreement. In A-4504-14, the Planning

Board and the City, as intervenor, supported by amicus curiae FWB,

appeal from a February 4, 2014 order, declaring that Shipyard was

entitled to automatic approval of its application, and from a May

9, 2014 order denying reconsideration. In A-4763-14, Hudson Tea

and amicus curiae FWB challenge a May 21, 2015 order, which

overturned both the County Board's resolution disapproving

Shipyard's application and the Freeholder Board's resolution

affirming the County Board decision, and directed that the

application be approved.7

I

In A-4637-14, we affirm the June 27, 2013 order dismissing

the City's lawsuit against Shipyard, substantially for the reasons

stated by the trial judge in his cogent oral opinion issued on

June 21, 2013. We agree with the judge that, in Toll Brothers,

7
Although the appeals were not consolidated for briefing purposes,
the City included, in its brief on A-4637-14, arguments about
automatic approval, which should have been briefed in A-4504-14.
The Planning Board's brief in A-4504-14 included arguments about
the developer's agreement that should have been briefed in A-4637-
14. Likewise, Hudson Tea addressed all of the issues pertaining
to each appeal in one brief, filed in A-4763-14. FBW's brief in
A-4763-14 also addressed issues pertaining to A-4637-14.
Nonetheless, except for issues not raised in the trial court, we
have considered all of the parties' arguments. See Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

7 A-4504-14T3
Inc. v. Board of Chosen Freeholders of Burlington, 194 N.J. 223

(2008), the Supreme Court clearly held that a developer's agreement

cannot be enforced so as to prevent a developer from applying to

a planning board for a modification of a previously-issued

approval. "A vital aspect of the planning process is the ability

of developers to return to the planning board and present evidence

that a sufficient change in circumstances exists to warrant a

modification of previously imposed conditions. A developer's

agreement is not an impediment to such a proceeding." Id. at 256-

57.

As the Court explained:

By its very nature, a developer's
agreement is not . . . an independent
contractual source of obligation. Indeed, as
the developer's agreement in this case
expressly declares, its purpose is to help
carry out the conditions imposed by the Board
. . . .

. . . [A] developer's agreement is an
ancillary instrument, tethered to the
conditions of approval, and exists solely as
a tool for the implementation of the
resolution establishing the conditions.
Accordingly, if the resolution establishing
the conditions remains in effect, the
developer's agreement can be enforced.
However, if the resolution changes, the
developer's agreement enjoys no independent
status and must be renegotiated. . . .

To suggest, as the County does, that the
developer's agreement should somehow bar Toll
Brothers from making the changed circumstances

8 A-4504-14T3
 application that the MLUL recognizes
misconceives the relationship between the
conditions and the developer's agreement; it
is the developer's agreement that is dependent
on the conditions and not vice versa.
. . . [W]e do not view the ancillary
developer's agreement as a bar to Toll
Brothers' application for modification of the
resolution setting the conditions of approval.

[Id. at 249-50 (citations omitted).]

Appellants' efforts to distinguish Toll Brothers are patently

insubstantial. The above-quoted language is not limited to

developers' agreements pertaining to off-site improvements.

We agree with the trial judge that the Municipal Land Use Law

(MLUL) signals the Legislature's intent to permit a developer to

apply to a planning board to modify the terms of approval of a

PUD. See N.J.S.A. 40:55D-45.6(a). In fact, the developer's

agreement between Shipyard and the City contemplated possible

amendments to the resolutions granting the approvals ("the

building plans shall reflect the requirements of the [Board] as

contained in its Resolutions . . . and any amendments thereafter

. . . .").

We also agree with the trial judge that the merits of an

application to modify prior approvals are to be decided by the

board, not by a trial court in litigation to enforce the

developer's agreement. As in Park Center at Route 35, Inc. v.

Zoning Board of Adjustment of Woodbridge Township, 365 N.J. Super.

9 A-4504-14T3
284 (App. Div. 2004), the Planning Board should have decided

whether building the tennis courts was an express condition of its

prior approval and, in any event, whether a modification was

justified. Consequently, the parties' arguments about the

relative merits of Shipyard's application to the Planning Board

are irrelevant to this appeal.

The additional contentions raised by the City and the other

appellants, including their estoppel arguments, are without

sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E).

II

In A-4763-14, we affirm the May 21, 2015 order, reversing

both the County Board's resolution and the Freeholder Board's

resolution, and ordering approval of Shipyard's application. For

the reasons cogently stated by the trial judge in his May 21, 2015

written opinion, we agree that the County and Freeholder Boards'

decisions were arbitrary, capricious, inconsistent with the

opinions of the County Board's own engineering consultant, and

unsupported by the evidentiary record. Therefore, the trial court

reached the correct result in ordering that Shipyard's application

be approved. Because the judge's written opinion on this issue

is comprehensive, little more discussion is required here.

The County Board's jurisdiction is very limited. Its

responsibility is limited to "assuring a safe and efficient county

10 A-4504-14T3
road system," including drainage issues affecting county roads.

N.J.S.A. 40:27-6.6, -6.6(e). See Kode Harbor Dev. Assocs. v. Cty.

of Atlantic, 230 N.J. Super. 430, 432 (App. Div. 1989). In this

case, the Board had jurisdiction to consider Shipyard's

application because the Monarch project bordered Sinatra Drive, a

county road. However, the project presented no drainage issues

affecting Sinatra Drive or any other county road. Moreover, once

Shipyard modified the project's internal road system to eliminate

a proposed connection between an internal walkway/emergency

roadway (the walkway) and Sinatra Drive, the Board had no

jurisdiction over any alleged traffic or emergency access issues

concerning the walkway. We agree with the trial judge that the

County Board's decision was not supported by the record, and the

Freeholder Board's decision was equally arbitrary because it

simply adopted the County Board's findings "by reference."

We do not reach the issue of whether Shipyard was entitled

to automatic approval of its application to either board. However,

we note that, because Shipyard participated in the County Board

hearings and only claimed a right to automatic approval after its

application was denied, its argument may be barred by the doctrine

of laches. See Amerada Hess Corp. v. Burlington Cty. Planning

Bd., 195 N.J. 616, 641 n.5 (2008).

11 A-4504-14T3
 III

Turning to A-4504-14, we affirm substantially for the reasons

stated by the motion judge in her thorough written opinions issued

on January 23, 2014 and May 9, 2014. We add these comments.

The result in this case is controlled by well established

legal principles, set forth in Amerada Hess, supra, 195 N.J. at

616. In that case the Court rejected prior case law that more

liberally extended relief to municipal land use boards, and

clarified the narrow circumstances in which a board may obtain

relief from the automatic approval provisions of the MLUL:

[I]n the absence of mistake, inadvertence, or
other unintentional delay, there should be no
such reluctance [to affirm imposition of
automatic approval]. Indeed, South Plainfield
Properties, L.P. v. Middlesex County Planning
Board, 372 N.J. Super. 410 (App. Div. 2004),
is emblematic of our view. There the board
simply granted itself a six-month delay to
review "extenuating" traffic concerns and
impacts, and the Appellate Division had no
hesitation in holding that the action was
"precisely the conduct that the automatic
approval provision was designed to prevent."
Id. at 419.

That is what the Legislature intended. It has
made the policy judgment that timely
disposition is of great institutional value
such that automatic approval is the proper
remedy for delay. Under Manalapan, the
statutory timetables are to be strictly
enforced; permissive interpretation is
unwarranted; and only where delay is
inadvertent or unintentional will a public
entity be excused from automatic approval.

12 A-4504-14T3
 [Id. at 636 (citing Manalapan Holding Co. v.
Planning Bd. of Hamilton, 92 N.J. 466
(1983)).]

The court also emphasized that an applicant need not show

that the board acted in bad faith. Id. at 637. "Where a board

fails to act within the statutory limits, even for what it

considers 'good' reasons, the statute is violated and automatic

approval comes into play. Only where the board establishes that

its delay was inadvertent or unintentional can its conduct be

excused." Ibid.

In this case, there was nothing inadvertent or unintentional

about the Planning Board's action. It was aware of the statutes

requiring that it hear Shipyard's application, regardless of the

pending litigation, on pain of automatic approval if it did not.

See N.J.S.A. 40:55D-10(a); N.J.S.A. 40:55D-22; N.J.S.A. 40:55D-

61. Indeed, multiple letters from Shipyard's attorney put the

Board on notice of its obligations. Moreover, the transcript of

the Board hearing reveals its expressed intent to circumvent the

automatic approval statute by "denying" Shipyard's application

"without prejudice." However, its expressed legal reasons for

doing so, as articulated by the Board attorney, were palpably

meritless. Toll Brothers clearly precluded the City from enforcing

the developer's agreement, and N.J.S.A. 40:55D-22(a) plainly

13 A-4504-14T3
obligated the Planning Board to hear Shipyard's application

notwithstanding the City's pending lawsuit.8

We agree with the motion judge that in denying the

application without prejudice, the Board was unlawfully granting

itself an extension of time to hear the application, until the

City's lawsuit was decided. "We cannot countenance such an end-

run around the statute." South Plainfield Props., supra, 372 N.J.

Super. at 417. The Board could have heard the application and

granted it, conditioned on the outcome of the City's lawsuit.

N.J.S.A. 40:55D-22(a). But the Board could not lawfully refuse

to hear the application, which is what it did here.9

Thus, we agree with the motion judge that Shipyard's

application was automatically approved, and that the automatic

approval occurred by operation of law when the statutory period

set forth in N.J.S.A. 40:55D-61 expired. "[F]ailure of the

planning board to act within the period prescribed shall constitute

8
The Planning Board's argument, that the developer's agreement
amounted to a deed restriction that stripped the Board of
jurisdiction to hear Shipyard's application, is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
9
As previously noted, we decline to consider arguments not raised
in the trial court, including the Board's arguments about an
alleged lack of notice pursuant to N.J.S.A. 40:55D-10.4. See
Nieder, supra, 62 N.J. at 234. We also decline to consider
materials, improperly included in FWB's appendix, which were not
part of the trial court record.

14 A-4504-14T3
approval of the application. . . ." N.J.S.A. 40:55D-61 (emphasis

added). At that point, Shipyard obtained the vested rights

associated with preliminary and final site plan approval. N.J.S.A.

40:55D-52(a).

The two principal statutes on which our decision rests –

N.J.S.A. 40:55D-22(a) and N.J.S.A. 40:55D-61 – represent the

Legislature's considered policy judgment that land use

applications should be heard promptly and local governments should

not give developers the runaround. See Amerada Hess, supra, 195

N.J. at 630; South Plainfield Props., supra, 372 N.J. Super. at

419-20. Like the motion judge, we are bound to honor the

Legislature's choice. In this case, implementing those two

statutes requires automatic approval of Shipyard's application.

If there is a lesson to be learned from this case, it is that

the rule of law is paramount and cannot be sidestepped to avoid

deciding unpopular land use applications. As here, failure to

follow the law may insure the success of an application that local

objectors vigorously oppose. We appreciate that it may be

difficult for planning board members, who are unpaid appointees,

to stand firm in the face of vocal objectors and carry out their

statutory duty. We have read the transcript of the July 10, 2012

Board hearing, in which objectors were interrupting the

proceedings and shouting, "we want tennis courts." However, the

15 A-4504-14T3
Planning Board was obligated to hear Shipyard's application, no

matter how controversial it was.

Ironically, had the Board considered the application on its

merits, it had authority to deny the application unless Shipyard's

evidence justified modifying the original PUD approval which

included the tennis courts. But, because the Planning Board

yielded to public pressure, and refused to hear Shipyard's

application, the result is automatic approval of the application.

Finally, we note that the application Shipyard submitted, and

which was automatically approved, promises that Shipyard will

construct a publicly accessible waterfront walkway around the

perimeter of the Monarch project development. Shipyard's counsel

has represented that Shipyard must build and maintain the publicly

accessible waterfront walkway as a condition of DEP's approval of

its permits (see supra note 2). We likewise construe that

commitment to be a condition of the automatic approval.

Affirmed.

16 A-4504-14T3