The developers of two 17-story towers on the city’s west side hit a home run Wednesday when Superior Court Judge Arthur D’Italia dismissed nearly every complaint against them.
The judge’s ruling all but ensures that a 326-unit high rise development at 101 Marshall St. will be built as approved by the city’s Zoning Board of Adjustment in 1998.
On July 1, litigation was initiated by the Hudson County Alliance (HCA), a local citizens group, to stop construction. On July 9, both Hoboken and Jersey City joined the litigation. The groups believe that the tall towers will add to congestion and sewerage problems.
The lawsuit aimed to overturn the project’s Zoning Board approvals and those from the North Hudson Sewerage Authority that will allow the builder of the project to connect the building to the city’s sewer lines.
The only claim in the HCA’s original complaint that the judge did not dismiss was the one to attempt to overturn the sewer connection approvals. That claim was not dismissed because the litigation was filed within the 45-day window. The sewer connections were approved in May of this year. According to D’Italia, the litigation regarding that issue will continue. No date has been set for the next court appearance on that complaint.
The approvals for the sewer connection were contingent on certain structural changes, such as the raising the grade of the surrounding streets and the installation of catch basins. According to city officials, the site’s approval is now under review by the state Department of Environmental Protection.
The Hoboken Zoning Board, the North Hudson Sewerage Authority (NHSA), the Hoboken construction official, Gateway 1, LLC, and the Harrison/ Marshall Street Apartments LLC, the corporations that own and are developing the property, were named in the suit.
Wednesday’s hearing was a "show cause" hearing where the HCA, Hoboken, and Jersey City argued for injunctive relief. The judge declined to issue a "stop work" order and he dismissed nearly all of the complaints against the developer and against the city’s Zoning Board.
The towers will contain two restaurants, a 25,384 square foot health club, 5,240 square feet of retail space, and an enclosed parking garage that will rise seven stories. The project gained all applicable approvals in 1998 and construction on the buildings began in May of this year, all with valid permits issued by the Hoboken construction office.
In no uncertain terms, Judge D’Italia said that the statute of limitations had expired long before any of the plaintiffs finally decided to litigate.
According to the state statute, any interested party has 45 days from the day the resolution approving the project is published in the local paper to file a complaint. This project was originally approved on Oct. 28, 1998.
Plaintiffs’ arguments
The plaintiffs argued that because developers failed to provide proper notice of the public hearing to the Jersey City clerk’s office, the Hoboken Zoning Board never had jurisdiction to hear and approve the project. They charged that the approvals could be challenged outside the normal 45-day limit established by the court’s rules.
It is undisputed that the original developers of the project never notified the Jersey City clerk’s office during the 1998 hearing. State law requires any developer within a 200-foot radius to notify the adjacent municipality when it falls within that radius.
The judge ruled that the 45-day period has expired, even by the "most liberal" interpretation. He was especially critical of Hoboken’s case. "Hoboken slept more soundly on its rights that anyone else in this litigation," said D’Italia.
In his ruling, he said that all of the plaintiffs failed to act with "due diligence and dispatch" and that "it’s clear that the cause of action occurred long before the filing of documents."
The Zoning Board hearings were advertised in local newspapers, as all such hearings must be by law.
In D’Italia’s order, he said that that the court will maintain the "status-quo" and will not institute any kind of stop work order. He said that stopping the work that is already underway would be an "onerous" hardship upon the builder of the project. According to court records, the developer has received approximately $58 million in funding to build the buildings. Of which, according to D’Italia, over $20 million has already been invested.
He added that ordering a stop work order would cause 150 workers to temporality lose their jobs.
Stanford Weiss, who owns Manhattan Builders, the Hoboken-based company that is constructing the project, said he was very happy with the judge’s ruling.
"[Judge D’Italia] made everything crystal clear," said Weiss. "[This ruling] is a victory for jobs and the working class. It’s a victory for the majority of the people in Hoboken."
Hasn’t given up
Wednesday, the HCA released a statement that expressed disappointment but said the citizen group has not yet given up.
"The Hudson County Alliance is disappointed by Judge D’Italia’s decision today [Wednesday] dismissing the counts against the Hoboken Zoning Board of Adjustment and the Hoboken construction official, but welcomes the opportunity for the case to continue based on problems with the project’s sewage approval granted by the North Hudson Sewage Authority," said Eric Volpe, the president of the HCA, in the statement.
The HCA also said in the statement that it is considering appealing the judge’s ruling on the other counts.
Th HCA said that it disagrees with D’Italia, particularly on the basis of harm to the common good. "If a developer can abuse the approval process and get away with it, zoning protection in Hoboken is dead and all citizens suffer," said Dan Tumpson a member of the Alliance. Tumpson also pointed to what he deems are possible sewage and flooding problems. It is his assertion that to obtain sewer approvals, the project had to be changed in ways that could harm the health and safety of Hoboken and Jersey City residents.
Fourth Ward Councilman Christopher Campos said Wednesday that he is disheartened by the decision, as the project is in his ward. "I’m very disappointed," said Campos. "The judge clearly said that this should have be challenged sooner. While this may be the legal end [of the city’s case] the developer should still find ways to work with the surrounding residents to ensure that some of the concerns and stress that the community has can be alleviated."
City Councilman Tony Soares said that the city waited too long to take action.
"It was all about timing and the city really dragged its feet," said Soares. "The city really let the community down."