A dispute over a high-rise zoning ordinance and a proposed development project has led to the invalidation of both by the Superior Court of New Jersey, Appellate Division. The court found that a municipal zoning ordinance was adopted without proper public notice as required by state law, which also voided subsequent site plan approvals for a major residential project.
The Galaxy Towers Condominium Association, Inc., which manages 1,076 condominiums in Guttenberg, filed appeals against the Town of Guttenberg, its Planning Board, and May Guttenberg, LLC. The appeals challenged two orders from December 20, 2023 granting summary judgment to the town and dismissing the association’s complaint about Ordinance 32-16 (the R-5 ordinance), as well as a July 12, 2024 order upholding site plan approval for May Guttenberg’s construction project enabled by that ordinance.
According to court documents, the background of the case centers on changes made to local zoning regulations following a master plan reexamination report adopted in June 2009. This report recommended rezoning certain areas along John F. Kennedy Boulevard East to allow for taller buildings—up to fifteen stories—to promote growth and increase tax revenue. On November 28, 2016, more than seven years after this recommendation, the Town Council introduced Ordinance 32-16 (R-5), which created a new high-rise residential district encompassing sixty-seven properties previously zoned as mid-rise.
The R-5 ordinance defined high-rise buildings as those between nine and fifteen stories and set various requirements for lot size and building setbacks. However, when enacting this change, officials determined it was not necessary to provide individual notice to property owners within 200 feet because they believed it implemented recommendations from an earlier reexamination report—a position supported by prior case law but disputed by the plaintiff.
The Galaxy Towers Condominium Association filed its initial complaint on March 30, 2023—over six years after passage of the R-5 ordinance—alleging violations of both New Jersey’s Municipal Land Use Law (MLUL) and due process rights during adoption of the ordinance. The town argued that such complaints must be filed within forty-five days of an ordinance’s publication; however, the association sought an extension under Rule 4:69-6(c), claiming that justice required judicial review due to procedural defects.
Separately, May Guttenberg LLC applied for site plan approval in early January 2023 for a fifteen-story mixed-use building with residential units and parking on land across from Galaxy Towers. Notice was provided to nearby property owners—including Galaxy Towers—and public hearings were held over several months. During these hearings, experts debated whether aspects like parking levels or mezzanines should count toward total building stories under local code definitions. Ultimately, on April 17, 2023, the Planning Board approved May Guttenberg’s application with variances for lot depth and open space requirements.
The condominium association then challenged this approval in court as well. Their arguments included claims that (1) the Planning Board lacked jurisdiction because they believed the project exceeded story limits; (2) public notice was defective; (3) variances were improperly granted; (4) off-site impacts such as traffic were inadequately studied; among others.
In its opinion consolidating both appeals into one decision issued April 9, 2026, the Appellate Division reviewed standards governing summary judgment and interpretation of ordinances de novo—that is without deference to prior legal conclusions by lower courts. The panel found that municipal ordinances are presumed valid but must comply with statutory procedures including adequate public notice.
Citing precedent such as Rockaway Shoprite Associates v. City of Linden and Cotler v. Township of Pilesgrove, the court concluded that published notice regarding Ordinance 32-16 failed to include “a brief summary of main objectives or provisions” required by N.J.S.A. 40:49-2.1. The notice did not specify which properties would be affected or what substantive changes would occur—information necessary for residents’ understanding and participation.
Furthermore, while there is generally a forty-five-day limit on challenging ordinances after publication in official newspapers per Rule 4:69-6(a), exceptions exist when important public interests are at stake or statutory requirements have been violated. Here—as in Wolf v. Mayor and Borough Council of Shrewsbury—the appellate judges found sufficient grounds under “interest of justice” provisions to permit late filing because compliance with MLUL is considered a matter affecting public rather than private interests.
As a result of these findings: “we reverse the judge’s decision granting the Town summary judgment…and invalidate the R-5 ordinance because it was adopted in violation of MLUL.” Consequently: “Because we have invalidated the R-5 ordinance…the Board’s site plan approval is rendered void.”
Attorneys involved include John J. Lamb and Arthur M. Neiss from Beattie Padovano LLC representing Galaxy Towers Condominium Association; Eric D. McCullough from Waters McPherson McNeill PC representing both Town defendants; Cameron W. MacLeod from Gibbons PC representing May Guttenberg LLC; Judges Gooden Brown and DeAlmeida presided over this appeal under Docket Nos A-1564-23 and A-3880-23.
