The Appellate Division rejected a Neptune couple’s argument this February that they should be allowed to tear down and rebuild preexisting nonconforming walkways that traverse a historic open space without approval from the local Historic Preservation Committee (HPC). The Court held in William E. Taylor, IV and Rachel Taylor v. Zoning Board of the Township of Neptune in the County of Monmouth and the Township of Neptune in the County of Monmouth, Docket No. A-3709-22, that the town’s historic preservation ordinances are consistent with New Jersey’s Municipal Land Use Law (MLUL).

William and Rachel Taylor own a historic property that abuts a historic open space in Ocean Grove – the Historic Flare – which is specifically protected by the Neptune land development ordinances. Under Neptune’s ordinances, properties that abut the Historic Flare are permitted to have only one walkway each across the space for sidewalk access. The Taylor property has had two concrete walkways across the space for decades. Under the Neptune ordinances, once a preexisting nonconformity, such as the nonconforming walkways, is destroyed, it shall not be replaced.

After Superstorm Sandy, the Taylors obtained a certificate of appropriateness (COA) from the HPC to gut and rebuild the home, but they did not include a request to repair or replace the walkways. Six years later, in 2018, the Taylors took out the broken concrete slabs from the walkways and put in new modern concrete unit pavers, as well as a new paver walkway connecting the two preexisting walkways. They did not obtain zoning approval beforehand. The Taylors did not contact the owners of the Historic Flare property for permission to remove and reinstall the walkways, nor did they contact the HPC.

In 2020, the Taylors sought a COA from the HPC, seeking retroactive approval. The Commission denied the application, finding that the walkways could not be replaced after being destroyed and the new walkways were inappropriate with the historic area’s Design Guidelines. The Taylors appealed to the Zoning Board, which upheld the HPC’s decision. In a subsequent prerogative writ trial, the trial court held that the HPC’s decision should be upheld as the Historic Flare is a unique area, the HPC has specialized knowledge, and there was no evidence that the new walkways were consistent with the Design Guidelines.

Among other arguments concerning the Neptune land development ordinance, the Taylors argued to the Appellate Division that the Neptune ordinance that authorizes a direct appeal from the HPC to the Zoning Board was ultra vires and unauthorized by the Municipal Land Use Law. The ordinance states that a decision by the HPC to deny a COA may be appealed to the Zoning Board. The Appellate Division disagreed, finding that “the MLUL contemplates appeals from determinations made by zoning or administrative officers or designated municipal commissions.”

The Appellate Division supported the Historic Preservation Commission’s authority and expertise to make decisions based on the historic nature of the area, as well as the Township’s authority to implement land development ordinances to protect historic locations. Under the Municipal Land Use Law, the Appellate Division held, municipalities may implement and enforce ordinances intended to protect historic areas.