EELC fights in courts for flood ordinances and public waterfront in Hoboken
Waterfront communities throughout New Jersey are debating how they can protect themselves from the type of high-level flooding and tidal surges they experienced with Hurricane Sandy as they plan for climate change and the increasing storms and sea level rise it brings. Hoboken, with piers and development directly on the tidal Hudson River, has been in the vanguard of waterfront municipalities seeking to amend their ordinances to protect waterfront open space and incorporate updated coastal hazard maps and federal and state coastal regulations. EELC, along with its ally, N.J. Appleseed, and their client Hoboken’s Fund for a Better Waterfront are fighting a complicated legal battle to protect municipal ordinances from developers who do not want flood ordinances to apply to high-rise projects built on piers. The amended Hoboken ordinances prohibit buildings on piers and below the mean high tide mark, referencing new federal coastal maps showing areas of high hazard in heavy storms. Alongside this story of municipalities adapting to increasingly destructive storms and climate change, is the tale of a citizen’s group realizing a vision for a continuous public park along Hoboken’s Hudson Waterfront, an area for walking, boating, and enjoying the spectacular views of the river and Manhattan.
A resident of Riva Pointe gave a harrowing account of the night Hurricane Sandy hit this large condominium development on a pier overlooking Weehawken Cove to a New Jersey legislative committee in June of 2013. The Assembly’s Environment Committee was considering a bill to allow new construction on piers by providing exemptions to federal and state regulations prohibiting it. The resident described life that night at the Riva Pointe development to the New Jersey legislators. The complex was completely surrounded by water and cut off from emergency personnel. One elderly woman suffered a heart attack on the stranded development and was delayed in receiving medical care. She was brought to the hospital through four feet of water on an inflatable pontoon by emergency workers whose own lives were also at risk.
In a series of lengthy public hearings, Hoboken amended two flood ordinances in 2103 to prohibit residential developments on Hoboken’s piers where there is a high probability of breaking waves, flooding, and tidal surges during heavy storms combining to wield high-energy destructive power. Federal and New Jersey regulations prohibit the building of multifamily residential or hotels in these Coastal High Hazard Zones, and Hoboken’s ordinances encourage the best use of this land as open space and recreational areas. New Jersey’s own Coastal Zone Management regulations include requirements for public open space and the protection of views of the Hudson from Weehawken Cove. By preserving the immediate waterfront as open space, Hoboken allows all residents and visitors to enjoy the magnificent Hudson and spectacular views of New York City. By prohibiting new construction on piers and below the mean high tide mark, the Hoboken ordinances prevent property losses and are a first step to lowering flood insurance rates citywide.
Flood insurance costs are significant for Hoboken, with the city having more policies in effect than any other municipality in Hudson County. Total liability for city property with the National Flood Insurance Program is almost two billion dollars, and the new FEMA flood maps put over 75% of Hoboken properties in a flood zone. Hoboken property owners pay nearly six million in flood insurance premiums, the highest in Hudson County. Since Hurricane Sandy, EELC’s client Fund for a Better Waterfront has been actively engaged in implementing measures to protect Hoboken from storms, including public informational meetings, participating in the federal Rebuild by Design competition, and recommending to the city that they participate in the federal Community Rating System program to lower flood insurance rates. The municipal limitations on construction in the most hazardous of the floods zones are necessary for the city to apply to the National Flood Insurance Program for lower citywide rates.
Hoboken’s amended ordinances allow for passive and active recreational areas seaward of the mean high tide, areas that can be easily evacuated and and which have few manmade structures to be damaged during a heavy storm. In fact, a public waterfront park along the Hudson River in Hoboken has been long planned and is already nearly accomplished. Since its founding, Fund for a Better Waterfront has had as its unifying vision to secure a continuous public park along the water’s edge in Hoboken uninterrupted by private development. Plans for this park were drawn by an urban planner and architect in 1990, and most of the waterfront park has been built, winning awards for being an integral part of Hoboken’s successful South Waterfront, with residents and visitors walking the lively streets under spacious trees and with views of the Hudson River and Manhattan. The Hoboken waterfront yet to be incorporated into the waterfront park is well within reach. One piece of the unfinished section of the parkway is on Hoboken’s North Pier which has been designated for recreational use since 1997, when builders David and Michael Barry, owners of Shipyard Associates, signed a Developer’s Agreement codifying approvals for a development which included 1160 residential units on Hoboken’s northeastern waterfront and obligated them to rehabilitate the pier and nearby land, the so-called Development Block G, as a piece of the public parkway.
Shipyard Associates obtained approvals in 1997 to build a large-scale mixed-use development on nearly ten acres of Hoboken’s waterfront in return for providing public recreational space on approximately twenty percent of the land, mostly on the pier. After finishing the 1160-unit development on the six parcels of the site agreed upon for build-out, Shipyard reneged on the Developers Agreement and turned to the remaining parcel, designated for a public parkway, tennis courts, and pavilion, and applied for approvals to build two high-rise luxury towers named the Monarch on the pier and adjoining land, as if the Developer’s Agreement did not even exist. The Hoboken Planning Board denied the application for high rises in July of 2012 because of pending litigation to enforce the Agreement’s requirement for public recreational space on this last parcel of land. That case, along with another brought by Shipyard requesting automatic court approval of the two eleven-story towers on the North Pier, are wending their way through the courts. Shipyard won the first round at the superior court level and arguments were heard by the Appellate Court at the end of February, but a decision has not yet been reached.
Complicating Shipyard’s attempt to ignore the requirement in the 1997 Developer’s Agreement for open space, after they had already built the 1160 residential units, are the two amended Hoboken flood mitigation ordinances approved in 2013. These ordinances prohibit new construction on the North Pier because high hazards during storms and to promote public welfare with public open space along the waterfront. In February of 2014, Shipyard sued Hoboken in federal court arguing that the municipal flood ordinances were invalid, or, if valid, did not apply to the Monarch Towers. Shipyard argues that because they submitted plans before the flood ordinances were amended to reflect experience with Hurricane Sandy and new federal coastal hazard maps, the ordinances should not apply to their project. The Fund for a Better Waterfront intervened to defend the Hoboken ordinances because of its planning expertise and participation in the development of the Hoboken waterfront for over 30 years, and EELC took on the case for its long-term client.
Through a two-year legal effort, EELC was able to achieve a significant victory and preserve Hoboken’s municipal flood ordinances, with the federal court ruling against Shipyard on several counts. Shipyard then refiled the complaint against the municipal ordinances in state court. Soon a Hudson County court will establish a schedule for briefing on this case. Before the state court will be the decision as to whether the flood ordinances will apply if the Hoboken Planning Board considers again the application for the Monarch. Whether or not that happens, depends on how the Appellate Court rules on Hoboken’s enforcement of the Developer’s Agreement and on Shipyard’s quest for automatic court approval of the Monarch high rises.
The city has announced that they will appeal to the New Jersey Supreme Court for a hearing on the revised waterfront permit which allowing high rises to be built on the North Pier. The original Waterfront Permit of 1997 granted by the NJ Department of Environmental Protection for the 1160 units stipulates open space and recreation on the North Pier. “Superstorm Sandy was a devastating event, and the impacts of climate change and rising seas absolutely need to be considered when we are potentially putting future residents and our first responders at risk by developing on waterfront piers,” said Mayor Dawn Zimmer. “We will be immediately filing a petition for certification to appeal this to the New Jersey Supreme Court.”
The fate of Hoboken’s North Pier, and of Hoboken’s continuous waterfront park, has been in the courts for five years, with five cases still pending, relentlessly pursued by the developers, and defended by the city of Hoboken and EELC client Fund for a Better Waterfront. The homeowner’s association for the nearby Hudson Tea Building has joined several of the cases on the side of the city and FBW. Public hearings in Hoboken on the issues have been packed with residents demanding that the Developers Agreement be honored.
The city of Hoboken and Shipyard Associates have held settlement discussions which resulted in a tentative agreement to allow Shipyard to build seventy-nine additional units on Monroe Street rather than on the North Pier, and to release Shipyard from its obligation to redevelop the pier as a portion of the waterfront parkway. The city would then take upon itself the cost of redeveloping the pier. In November of last year, the Hoboken City Council voted 8-0 to reject the settlement agreement in the face of a standing room only crowd of residents opposed to the settlement. Although FBW was not privy to the settlement discussions, FBW has proposed that the developer be released from its obligation to build tennis courts and a pavilion and that the developers build the park on the land portion of the parcel, releasing Shipyard from the obligation to rehabilitate the pier which has been estimated in excess of $10 million. No approvals for additional units would be granted.
Despite the Rive Pointe resident’s testimony about life on a Hudson pier the night Hurricane Sandy, the New Jersey Assembly bill to allow exemptions from state and federal regulations prohibiting construction on piers did pass the legislature in June of 2013. But it did not get across the Governor’s desk. Christie vetoed the legislation stating that “allowing new construction on a pier in a Coastal High Hazard Area … contravenes that federal regulation and may therefore jeopardize [National Flood Insurance Program] eligibility for those municipalities with existing piers along the Hudson River … ”
Strong local support, a Developer’s Agreement, Hoboken’s municipal flood ordinances, state and federal regulations limiting construction in Coastal High Hazard Zones, new federal coastal maps, and a nearly completed public waterfront park along Hoboken’s waterfront all support open space on the North Pier and immediately adjacent land. If municipalities cannot enforce flood ordinances based on NJ Coastal Management rules, FEMA guidelines, and the city’s own experience with Hurricane Sandy, how will NJ coastal communities deal with some of the highest predicted sea level rises in the U.S.? If Planning Boards cannot ensure compliance with developers agreements to provide public open space along with high-density housing, why would a municipality approve large-scale planned developments on waterfront land not zoned for residential use?