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, who owns a circa-1900 building in Jersey City, sought a determination of significance before applying for a demolition permit. The City's HPO concluded plaintiff's building likely would not be approved for demolition due to its historic, architectural, and cultural significance.
Pursuant to local zoning ordinance, plaintiff appealed to defendant Zoning Board of Adjustment (ZBA), which upheld the determination of significance. Thereafter, he filed a complaint in lieu of prerogative writs in the Law Division alleging defendants' actions were arbitrary, capricious, and unreasonable. The Law Division found the ZBA's decision was not arbitrary, capricious, or unreasonable and dismissed the complaint.
The court concludes 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. The MLUL does not authorize HPOs to unilaterally grant or deny historic preservation designations that bind a zoning officer in determining whether a demolition permit shall issue; that advisory function belongs solely to the Historic Preservation Commission, as detailed in the MLUL, and cannot be delegated to other entities or individuals. The Commission, in turn, may designate a site as historic only if it is voted upon by a majority of the full governing body.
The court reverses and remands to allow plaintiff to apply for a demolition permit in accordance with the MLUL. The court also concludes Jersey City's Code of Ordinances Sections 105-3, 105-4, and 105-7 are ultra vires and inconsistent with the 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 HPS.
