Can a City’s Historic Preservation Officer Decide If a Structure is Historic?
Aug 9, 2023 | Written by: | Share
In cities and towns with older buildings, issues often arise as to whether existing structures are truly historic in nature and are subject to restrictions precluding demolition or limiting proposed renovation. Strenuous arguments over whether a structure is truly historic by developers, businesses and homeowners often conflict with municipal Historic Preservation Commissions, private historical societies, and other interest groups.
In resolving the disputes, both sides look to the Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-1 to -163, and local zoning ordinances. Under the MLUL, a municipality is permitted to create a Historic Preservation Commission (“Commission”) to determine whether structures are historic and require preservation, a decision known as a determination of significance. Also under the MLUL, the Commission is permitted to create the position of a Historic Preservation Officer or Specialist (“HPO”). This person reviews applications for renovation or demolition and provides a report to help the Commission determine whether the structure is historic, and whether to recommend that the Zoning Official permit, limit, or deny such applications.
A dispute arose between Jersey City, NJ, and Joseph Bernardo, who owned a home built between 1896 and 1910 that he wanted to demolish for the construction of a new structure. The ultimate issue was whether Jersey City could by ordinance delegate the decision of whether a structure was historic to the HPO, and thereby bypass the Historic Preservation Commission’s independent determination. The Jersey City ordinance required the pre-submission of all demolition applications to the HPO for review and recommendation before submitting the application for a zoning permit. The HPO was required to review the application and structure to determine whether the structure was historic, and render a report of conclusions to the zoning official regarding the approval, denial, or limitation of the application. The applicant could then file a direct appeal of the HPO’s decision to the local Zoning Board of Adjustment (ZBA).
Pursuant to the ordinance, Bernardo first submitted the demolition application to the HPO. The HPO determined Bernardo’s structure was historic and could not be demolished. Bernardo appealed to the ZBA, which denied the appeal based upon the HPO’s determination. Bernardo appealed to the Law Division, which affirmed the ZBA’s decision. Bernardo appealed to the Appellate Division, which reversed the Law Division’s decision and remanded the matter to the Historic Preservation Commission. Bernardo v. City of Jersey City, __NJSuper__(App.Div 2023) A-1342-21 (July 14, 2023).
The Appellate Division held the municipal ordinance was void as ultra vires to the extent it vested the HPO with the authority to make the historic designation decision to deny the demolition application without a meeting and decision of the Commission required by the MLUL. The Appellate Division noted the MLUL does not mention the HPO as a decision-maker on whether a structure should be preserved as historic. The Appellate Division held that the determination on whether a structure is historic and subject to limitations on renovations or demolition is for the local Historic Preservation Office Commission and cannot be delegated to the HPO by local ordinance or in practice. The Appellate Division also found that the ordinance usurped the state MLUL by creating an appealable issue directly to the local Zoning Board of Adjustments for denial of a demolition application on historic preservation grounds before the Commission met and rendered that decision.
Just because a municipality may appoint an HPO to be a consultant or expert on whether a structure is historic does not give the HPO the authority to make the final decision. That decision is for the Historic Preservation Commission, with the right of appeal to the Zoning Board of Adjustment.
Jacob A. Papay, Jr. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of construction defect claims, construction injury claims, first-party insurer claims, insurance coverage disputes, subrogation, provider health care law, commercial law, defense of professional negligence, and public entity general liability. He represents numerous insurers, Third Party Administrators, medical groups, and businesses, and he has successfully defended public entity officials and employers in wrongful death, discrimination, excessive force and other civil rights claims. In addition, Mr. Papay represents small businesses in mergers, acquisitions, trade secrets, employment and unfair trade practice claims.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.