DEP Needs Court Order to Seize Control of Private Property

November 19, 2014 | No Comments
Posted by Paul H. Schneider

The Appellate Division of Superior Court rejected efforts by the Department of Environmental Protection (DEP) to seize control of private property without first securing a court order, and limited the DEP’s authority to retroactively apply new environmental standards. Read more

Fourteen Years Later And Still No Third Round Regulations

October 23, 2014 | No Comments
Posted by Donna McBarron

On October 20, 2014, the Council on Affordable Housing (“COAH”) convened ostensibly to adopt its third set of Third Round Regulations in order to meet the October 22, 2014 deadline imposed by the New Jersey Supreme Court on March 14, 2014. After a 14-year delay in adopting valid Third Round Regulations, COAH once again missed a deadline and failed to adopt the proposed regulations.

Initially, the COAH Board considered a motion to table adoption of the proposed regulations for 60 days. While the three Board members in favor acknowledged that such an action would violate the Supreme Court’s Order, they felt additional time was needed in order to address the roughly 3,000 public comments received on the proposed regulations. Three Board members opposed the motion, three Board members supported the motion and the deadlocked motion therefore failed.

To read the full article, click here.

Permit Extension Act (PEA) Extension Bill Introduced

October 10, 2014 | No Comments
Posted by Michael J. Gross

On October 9th, Assemblymen Jerry Green, John Burzichelli and Troy Singleton introduced legislation (A-3815, not yet available for review) to extend the Permit Extension Act for two more years (until December 31, 2016). The current Permit Extension Act (PEA) expires on December 31st of this year. Whether or not this further extension is approved depends on the number of projects and jobs negatively affected.

This Update is not considered to be legal advice, and is intended for educational purposes only. For more information regarding the the Permit Extension Act, please contact Giordano, Halleran & Ciesla’s Environmental Practice Group.

NJDEP Announces New Guidance On “Unrelated Contamination”

October 7, 2014 | No Comments
Posted by Marc D. Policastro

The New Jersey Department of Environmental Protection (NJDEP) has announced a specific “Guidance Document” and protocol to assist Licensed Site Remediation Professionals (LSRPs) to address contamination that is suspected to be unrelated to a known discharge undergoing remediation.  In essence, the roadmap provided by NJDEP addresses three basic scenarios where:  (1) contamination is suspected to be unrelated to the subject site is identified on the subject site and the subject site is not a heating oil tank at a residential property; (2) contamination is suspected to be unrelated to the subject site is identified off the subject site and the subject site is not a heating oil tank at a residential property; and (3)  contamination is identified either on or off the subject site and the subject site is a heating oil tank at a residential property. Read more

“Convenience Dumping” – Not So Convenient After All

September 29, 2014 | No Comments
Posted by Steven M. Dalton

NJDEP’s launched its “Don’t Waste Our Space” initiative in March 2014 to crack down on illegal waste disposal practices, focusing particularly on protection of State owned lands.  The problem of illegal dumping of construction-related and household waste and debris is apparently real as over first six months the vigorous enforcement initiative has resulted in 20 arrests, $30,000.00 in court ordered fines and $450,000.00 in pending fines. Read more

Supreme Court Clarifies Timing of Spill Act Claims

July 30, 2014 | No Comments
Posted by Paul H. Schneider

New Jersey’s Spill Compensation and Control Act (Spill Act) prohibits the discharge of hazardous substances into the environment, and makes dischargers jointly and severally liable for the resulting environmental contamination.  Joint and several liability means the State may collect the entire amount of cleanup costs from one discharger, even when that party was only partially responsible for the contamination.  The Spill Act also establishes a private right of action for contribution so that a discharger targeted by the DEP can compel other responsible parties to share in the cleanup costs.  The Spill Act provides that “[w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance . . .”  Such a contribution lawsuit is brought in the courts, and the Spill Act directs the courts to allocate the cleanup costs among liable parties using “equitable factors.”  The Spill Act also provides that a discharger is required to have written DEP approval for the actual remediation expenses they incur in order to recover those costs from other liable parties. Read more

Failure To Record A Wetlands Conversation Restriction Comes Back To Haunt Years Later

June 23, 2014 | No Comments
Posted by Paul H. Schneider

Freshwater wetlands permits often involve a Transition Area Waiver Averaging Plan (“TAW”).  A TAW gives the developer the flexibility to modify what otherwise would be the required shape of a transition area without reducing its total square footage.  That flexibility makes TAWs an important tool for developers to maximize the development footprint on an environmentally constrained site.  Under DEP regulations, a TAW includes a condition requiring the property owner to record a deed restriction prohibiting development in the modified transition area without DEP approval.  The deed restriction runs with the land and binds subsequent owners. Read more

Permit Transfer Approval – Don’t Close Without It!

June 13, 2014 | No Comments
Posted by Steven M. Dalton

Economists and financial consultants have projected an improving and stronger real estate market in 2014 through 2015 based on various factors including increased new home construction activity. With a recovering economy and improving market conditions, increased land transaction activity should follow suit. It is critical to ensure that development approvals remain valid in connection with the land transfer process, particularly with the sunset of the Permit Extension Act looming.

For the full article, Click Here.

Toms River Wal-Mart Hits A Snag

June 11, 2014 | No Comments
Posted by Michael J. Gross

In two cases decided by the Appellate Division last week, the Toms River/Manchester Township Wal-Mart suffered a setback.  In an unpublished decision, the Appellate Division determined that the Planning Board approval in Manchester Township was invalid since shopping centers were not a permitted use in the applicable zone when the approval was granted.  In the published decision, the Court determined that DEP has the authority to approve a development that has an impact on threatened and endangered species subject to appropriate mitigation.  DEP had previously taken the position that these types of approvals could not be granted, because the threatened and endangered species regulation does not provide an avenue for mitigation.  The Court, however, utilized the general mitigation rule and validated DEP’s decision allowing mitigation for impact to the threatened pine snake.  In that unpublished decision, which allows mitigation to be selectively considered as a case-by-case basis, however, the Court remanded the matter to DEP since it could not determine whether the impervious coverage limitation should be 30% or 80%.  That is because the limits of the Coastal Center, which would allow 80% impervious coverage, was not precisely determined by DEP in its decision.  Should DEP determine that the Coastal Center is not applicable to the project, then it would probably sound the death knell for Wal-Mart since it would be nearly impossible to construct this type of commercial development with 30% impervious cover.

GH&C Attorneys Prevail In Wetlands Permit Appeal

May 21, 2014 | No Comments
Posted by Paul H. Schneider

Accepting the legal arguments made by GH&C attorneys Paul H. Schneider and Afiyfa H. Ellington, the Appellate Division of Superior Court has upheld a freshwater wetlands general permit authorization the NJDEP issued to Lee Brothers, Inc.  The New Jersey Conservation Foundation and the Pinelands Preservation Alliance challenged the general permit authorization, which permits Lee Brothers to disturb 3.4 acres of freshwater wetlands as part of an expansion of its cranberry farm in the Pinelands.

Click here for the full article.