The Superior Court of New Jersey Appellate Division has ruled that a Jersey City man can apply for a demolition permit at an over century-old building that had previously been deemed preserved “due to it’s historic, architectural, and cultural significance.”
By John Heinis/Hudson County View
Joseph Berardo, who owns 32 Sherman Place in the Heights, requested a determination of significant from the city Historic Preservation Officer Margaret O’Neill, who deemed the over century-old building “likely would not be approved for demolition due to its historic, architectural, and cultural significance.”
He appealed to the Jersey City Zoning Board of Adjustment in October 2020, which he lost, but the appellate court judges Richard J. Geiger, Ronald Susswein, and Berdote Byrne ruled that ruling is inconsistent with Municipal Land Use Law.
“We conclude the HPO’s issuance of a determination of significance — an advisory opinion seemingly intended to prevent plaintiff’s submission of an application for a demolition permit — is not a procedure authorized by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163,” they wrote in today’s opinion.
“We reverse and remand to allow plaintiff to apply for a demolition permit in accordance with the MLUL. We also conclude Jersey City’s Code of Ordinances Sections 105-
3, 105-4, and 105-7 are ultra vires and inconsistent with objectives and procedures concerning historic preservation mandated by the MLUL to the extent they delegate powers reserved for a municipality’s historic preservation commission to the HPOs.”
According to the appellate ruling, purchased the two-and-one-half-story, wood-framed, four-unit apartment building in 1987 on a block where a majority of the buildings were built between 1896 and 1910.
In November 2021, the Law Division entered a judgement in the city’s favor, finding that the zoning board “”was authorized to make a determination as to an appeal of the decision of the [HPO] pursuant to N.J.S.A. 40:55D-70.2 and [Section] 105-7.”
However, the appellate court disagrees with that interpretation.
“Nothing in the MLUL authorizes HPOs to issue ‘determinations of significance’ dispositive to the issue of whether demolition permits will issue. In fact, the MLUL does not contain any mention of HPOs or ‘determinations of significance,'” the court said.
“Instead, the MLUL mandates that a Commission made up of five, seven, or nine people review demolition permit applications involving property for historical significance and render written recommendations to the administrative officer or planning board.”
Furthermore, while the Historic Preservation Commission had the authority to hire O’Neill as an expert and issue a report, that never happened, and she “found herself in the untenable position as the City’s expert on appeals, defending a decision she unilaterally made.”
The appellate court had previously ruled that municipalities cannot delegate the powers of the HPC to other entities.
” … Plaintiff is permitted to file a request for a demolition permit, to be considered by the Commission and, if necessary, exhaust his administrative remedies. We offer no opinion as to whether a demolition permit should issue,” the opinion concludes.