NJ Appeals Court Reverses Determination of Historic Preservation Officer Effectively Applying Historic Designation to Property Absent Historic Preservation Commission’s Approval

This post was authored by Bradley Billing, Touro University, Jacob D. Fuchsberg Touro Law Center

In 1987, Joseph Berardo (“Plaintiff”) purchased a two-and-a-half-story, wood-framed, four-unit apartment building in Jersey City, constructed in or around the 1920’s. The building was representative of a Victorian or Queen-Ann-style residence. At some point prior to 1982, the main façade was significantly altered and replaced with modern improvements.

Defendant City of Jersey City’s (City) Code of Ordinances Section 105 permits any individual to request a determination of significance from the City’s Historic Preservation Officer (HPO) regarding whether a subject building warrants preservation. Consistent with local ordinances, Plaintiff sought a determination of significance before applying for a demolition permit. On February 11, 2019, Defendant Margaret O’Neill, the City’s Historic Preservation Officer (“HPO), issued a determination of significance. She concluded that the building likely would not be approved for a demolition permit due to its historic, architectural, and cultural significance. O’Neill acknowledged that the building was not listed in the NJ Historical Sites Inventory Survey of the City of New Jersey, nor was it listed as eligible for inclusion in the National, State, or Municipal Historic Register. However, she opined that the building should have been included in the NJ Survey and could have been designated individually on the National or State Register of Historical Places. She further found that “the building maintains integrity, location, setting, and feeling” and that the character has not been significantly altered. Plaintiff appealed the HPO’s determination of significance to the defendant, the Zoning Board of Adjustments of the City of Jersey City (“ZBA”).

On October 8, 2020, the ZBA held a public hearing regarding the appeal. Several witnesses testified, including twelve community members, O’Neill, and Plaintiff’s expert, Robert J. Wise, Jr. Ultimately, the ZBA upheld the determination of significance and voted to deny the appeal. The ZBA found “ample evidence of historic, architectural, and cultural character possessed by” the building.

On January 25, 2021, Plaintiff filed a complaint alleging defendants’ actions were “arbitrary, capricious, and unreasonable.” On November 23, 2021, The Law Division rejected Plaintiff’s contentions, found the decision to be none of the above, and dismissed the complaint. The Court found the ZBA was authorized to make a determination as to an appeal of the decision of the HPO. On appeal, Plaintiff contends the procedure followed by the HPO and ZBA was “ultra vires” and unauthorized by the Municipal Land Use Law (MLUL) because there is no authority to take action relative to property that is not designated as historic. Furthermore, Plaintiff contends that the HPO lacks statutory authority pursuant to the MLUL to “make recommendations regarding properties whatsoever.”

On appeal, Judge Berdote Byrne of the Superior Court concluded that the first contention holds little weight, but the second contention has merit and warrants reversal. In its decision, the Court held that the HPO’s issuance of a determination of significance is not a procedure authorized by the MLUL. The Court also concluded that “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 HPO’s. Thus, the decision was reversed and remanded to allow Plaintiff to apply for a demolition permit in accordance with the MLUL.

Berardo v City of Jersey City Zoning Board of Adjustment, 2023 WL 4535834 (NJ App. 7/14/2023