CAPE MAY – Cape Jetty LLC, owners of the Jetty Motel at the Cove in Cape May, have filed an action against the City of Cape May, its Planning Board, and City Council.
It is the latest move by the owners, who wish to demolish the existing motel and build a larger resort hotel with significantly more amenities.
A neighborhood group of “objectors” has sought to frustrate the development, most recently arguing that the new structure with a large undefined amenities space will be a burden on parking and present safety issues.
The most recent struggle over the controversial development was a Planning Board hearing in which the developer failed to gain an extension of earlier 2019 site approvals.
At issue, and unresolved at a January Planning Board meeting, was the issue of whether the 2019 approvals have expired or remain in force. The litigation seeks to have the court decide the issue. Among other requests of the court, the litigation seeks to have a declaratory judgment deeming the 2019 approvals valid and extended.
In 2010, the plaintiff, Cape Jetty LLC, received preliminary approval to demolish the existing structure and replace it with new construction of a 68-bedroom hotel. This action 12 years ago marks the beginning of the controversy outlined in the litigation. Extensions of the 2010 approval were granted in 2014, 2017, and 2018.
In March 2019, an amended plan was submitted to the Planning Board. It sought a structure with 61 bedrooms and associated amenities, including a third-floor pool for hotel guests only. The plan also promised 66 parking spaces.
Much of the amenities space was left undefined and the approval that was granted in 2019 required that the developer provide details on the use of that space before any building permits were issued.
The Planning Board wanted assurances that the use of the amenities space would be nonemployee intensive and would remain restricted to guests only, with the objective being assuring adequate parking for the facility.
The resolution on the 2019 approval was in August. The litigation complaint states that six months later, Gov. Phil Murphy declared a state health emergency and restricted construction projects to essential construction only, a definition that did not apply to the Jetty project.
Nonessential construction was allowed to resume in May 2020. By then, the litigation states, tourism spending had declined, and the developer began planning a new amendment to the approved site plan.
Another amended plan was submitted in March 2021 for a 53-unit hotel with additional amenity space for a restaurant, dining, and bar lounge, all open to the public. It sought two variances for parking and height. After being rescheduled twice at the developer’s request, a hearing was held on the new plan in November 2021.
The immediate issue was parking, with the plan proposing 123 parking spaces that would include valet-only parking. There would be 81 spaces on-site, using a stacked configuration, and 42 off-site at a lot yet to be determined.
Here, the specifics of the hearing become critical to the litigation. The plaintiff argues that the board requested additional information but also refused to allow an adjournment to allow for assembly and presentation of the information. The litigation acknowledges considerable public opposition to the plan at the hearing.
The litigation alleges that the board acted improperly when it denied the amended development plan in 2021. The developer is asking the court to reverse the denial, vacate the resolution memorializing it and either approve the amended plan or remand it back to the Planning Board for further consideration.
What follows is the most recent aspect of the controversy – the 2022 denial of an extension of the 2019 approvals. Here, the plaintiff argues that the board, in part, relied on a city ordinance that is at odds with and superseded by state municipal land use law.
The city ordinance states that extension, where no construction permit has been issued, expires after two years. It also does not permit a request for an extension that is submitted after the two-year expiration.
What was at odds but not directly resolved was the issue of whether the 2019 approvals remain in force or have expired.
The vote of the Planning Board took two steps. In the first, the board acknowledged that Cape Jetty LLC had the right to request an extension. In the second, it voted to deny the request. The litigation asserts that the denial of the request for an extension was improper.
The litigation seeks many actions based on eight different counts. It charges that the denial of the 2021 amended application was arbitrary and capricious and that the resolution memorializing it was deficient.
It argues that the denial of the extension of the 2019 approvals was also arbitrary and capricious. Again, it maintains that the resolution was deficient.
Another count asks the court to invalidate the city’s ordinance as contrary to the municipal land use law.
In another count, the litigation argues that the period for the approvals was “tolled” by the invalid ordinance and the arbitrary denial of the extension.
The complaint also states that the actions of the city and the Planning Board violated the constitutional rights of Cape May Jetty LLC vested in the 2019 appeal. This goes so far as to state that “the city’s and board’s outrageous actions shock the conscience.”
The remedies run from court approval of the amended 2021 plan to deeming the 2019 plan valid and extended. The city will now reply.
To contact Vince Conti, email vconti@cmcherald.com.
