A recent decision by the Supreme Court of New Jersey’s Appellate Division demonstrates how the courts have essentially eliminated Jersey City’s Historic Preservation Review process.

In Joseph Berardo v. City of Jersey City, Zoning Board of Adjustment of the City of Jersey City, Historic Preservation Commission of the City of Jersey City, and Margaret A. O’Neill, in her official capacity as the Historic Preservation Officer, Plaintiff Joseph Berardo sought a determination as to whether his circa-1900 building in Jersey City was considered historic. As per the local ordinances, a determination must be made by the historic preservation commission before applying for a demolition permit. Defendant Margaret O’Neill, the City’s Historic Preservation Officer (“HPO”) concluded that Mr. Berardo would likely not be approved for demolition due to the historic, architectural, and cultural significance of the building. Plaintiff appealed to the Jersey City Zoning Board of Adjustment (“ZBA”) who upheld the HPO’s determination of significance. Plaintiff then filed a complaint in lieu of prerogative writs alleging Defendant’s actions were arbitrary, capricious, and unreasonable. The Law Division found the ZBA’s decision was appropriate and dismissed the complaint.

On appeal, Judges Geiger, Susswein, and Berdote Byrne arrived at two conclusions. First, the HPO’s determination of significance was not procedurally authorized by the Municipal Land Use Law (“MLUL”), and second, Jersey City’s Code of Ordinances Sections 105-3, 105-4, and 105-7, were beyond the City’s legal authority and were inconsistent with the objectives and procedures concerning historic preservation.

Municipalities do not possess the inherent power to zone, they are only able to exercise this power as it is delegated to them by the Legislature. The MLUL authorizes municipalities to create, by ordinance, a historic preservation commission. The members of this commission, not the HPO, are tasked with reviewing permit applications pertaining to historic sites and rendering written recommendations to the appropriate administrative officer. The MLUL requires the historic designation to be based on identification in the Master Plan, otherwise, a zoning ordinance must set forth reasons for the designation. THE ZBA’s adoption of a resolution upholding O’Neill’s determination of significance and denying plaintiff’s appeal does not comply with the historic site designation procedures required by the MLUL. The MLUL does not authorize HPO’s to unilaterally grant or deny historic preservation designations. This designation belongs to the Commission and cannot be delegated to individuals.

The City’s ordinance allowed the HPO to make determinations which were appealable to the ZBA, a process that bypassed the Commission completely. The MLUL does not make any mention of authorizing the HPO to make determinations of significance. The City cannot delegate power granted to the Commission under the MLUL to other entities. The MLUL neither authorizes an HPO to make designations of significance nor does it authorize the HPO the ability to prevent a zoning official from issuing demolition permits. This was an invalid exercise of municipal zoning power. The matter was reversed and remanded. Plaintiff was permitted to file a request for a demolition permit which would be considered by the Commission.