NJ Appellate Division Revisits Spill Act Defenses; Finds Continuing Nuisance Claim Not Time Barred

August 18, 2016 | No Comments
Posted by Melissa A. Clarke

The New Jersey Appellate Division recently issued a decision confirming that the exclusive list of defenses set forth in the Spill Compensation and Control Act (Spill Act) rules out reliance on equitable defenses, just as it precludes statute of limitations defenses. The decision is significant for site remediation cases.

The underlying matter involved the construction of a residence in Middletown, New Jersey. In 2007, environmental consultants reported soil and groundwater contamination on the property. From 2009 until 2012, the property owner’s estate undertook remediation. In 2012, the co-executors of the estate sued the property’s prior owners, seeking contribution under the Spill Act, asserting violations of the Brownfield and Contaminated Site Remediation Act and the Contaminated Site Remediation Act, and asserting claims of strict liability, negligence, trespass, and nuisance. The trial court found that the Spill Act contribution claim and common law claims were time-barred. The trial court dismissed the Environmental Rights Act (ERA) claim because plaintiffs failed to serve notice on the Department of Environmental Protection (DEP) before filing the original complaint. Read more


Court Rules Time of Application Rule is a Shield Not a Sword

August 2, 2016 | No Comments
Posted by Paul H. Schneider

Prior to 2011, courts in New Jersey applied the “time of decision” rule, under which a decision concerning a municipal land use application would be based on the municipal ordinance as it existed at the time the application or appeal was decided. The time of decision rule allowed municipalities to block proposed developments by changing the applicable zoning ordinance while development applications were pending. Then the Legislature put an end to this unfair practice by amending the Municipal Land Use Law to establish a “time of application” rule. This statute provides that “those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application …” N.J.S.A. 40:55D-10.5. Read more


Permit Extension Act Signed by Governor

July 1, 2016 | No Comments
Posted by Michael J. Gross

Yesterday, the New Jersey State Senate voted to extend the Permit Extension Act in the 9 Sandy-affected counties for another year until December 31, 2016 (many approvals will be extended until June 30, 2017).

The Governed signed this Legislation late last evening.


Permit Extension Act Poised for Governor’s Signature

June 30, 2016 | No Comments
Posted by Michael J. Gross

Today, the New Jersey State Senate voted to extend the Permit Extension Act in the 9 Sandy-affected counties for another year until December 31, 2016 (many approvals will be extended until June 30, 2017).

It is anticipated that the Governor will sign this Legislation sometime in early July.


NJ SUPREME COURT REFUSES TO REVIEW DECISION INVALIDATING DEP’S COASTAL PUBLIC ACCESS RULE

June 24, 2016 | No Comments
Posted by Steven M. Dalton

The uncertainty involving the New Jersey Department of Environmental Protection’s (“DEP”) Public Access Rule promulgated in 2012 under the Coastal Zone Management Rules continues. The Supreme Court by Order dated June 17, 2016 denied the State’s Petition for Certification to challenge the Appellate Division’s Hackensack Riverkeeper, Inc. and NY/NJ Baykeeper v DEP, 443 N.J. Super 293 (App. Div. 2015) decision. In another Order issued the same day, the Court also denied the State’s motion for a stay of Hackensack Riverkeeper, and vacated an Order of the Court that had temporarily stayed the decision. Read more


DEP To Ramp-up Waterfront Development Compliance Efforts

June 3, 2016 | No Comments
Posted by Steven M. Dalton

DEP recently announced that it will more aggressively enforce Waterfront Development and CAFRA permitting compliance issues with respect to development along the waterfront. DEP’s compliance initiative will involve unannounced inspections by boat conducted by its Waterfront Enforcement Team (WET) at active waterfront construction sites. Owners of property along the waterfront who are engaged in development activities should ensure that they have applicable, valid approvals in place from DEP, and strictly follow applicable permit conditions. Care should also be taken to determine whether existing structures are legally existing or require legalization approvals.

The approval process involving development of waterfront parcels can be challenging. Pre and post-construction conditions must be carefully followed to avoid potential compliance issues. Appropriate due diligence should be conducted prior to acquisition of such parcels to evaluate whether approvals are needed for proposed development, and whether existing structures require legalization or may be eligible for “grandfathering” rights.

Giordano, Halleran & Ciesla’s attorneys have extensive experience with CAFRA and Waterfront Development permitting issues, and we frequently assist property owners in securing development approvals for new and existing structures and addressing compliance issues. If you have questions regarding this compliance initiative or DEP waterfront permitting or tidelands issues, please contact Steven Dalton of our Environmental Practice Group.


Court Addresses “Catalyst” Requirement under Mt. Laurel Doctrine and Rejects Township’s “All or Nothing” Approach to Builder’s Remedy in Cranford Development Associates LLC v. Township Of Cranford, A-5822-12T2, ___ N.J. Super. ___ (App. Div. 2016).

April 28, 2016 | No Comments
Posted by Marc D. Policastro

Co-authored by Melissa A. Clarke

In this recent affordable housing decision, the Appellate Division upheld a Union County trial court’s final order granting a builder’s remedy to plaintiff Cranford Development Associates, LLC (the “developer”) for the construction of a 360-unit residential development in Cranford. The court made several noteworthy points, the most significant of which relates to the requirement that the developer be the “catalyst” for change.

First, the appellate court agreed that the plaintiff developer satisfied the requirement to negotiate in good faith before filing the lawsuit. The court found that the underlying record made clear that the Township had no interest in negotiating with the developer, and there is no administrative exhaustion requirement in Mount Laurel litigation. Read more


GHC Lawyers Prevail In Trinity Hall Middletown School Dispute

April 20, 2016 | No Comments
Posted by Paul H. Schneider

Following contentious hearings before the Middletown Township Planning Board and subsequent litigation, Superior Court Judge Paul A. Kapalko upheld the Planning Board’s decision to approve construction of Trinity Hall School off Chapel Hill Road in Middletown Township. Rejecting arguments made by several neighboring property owners, the Court ruled that Trinity Hall had presented “more than adequate testimony” from engineers and other professionals to support its application to construct a private all-girls high school, and that there was “ample evidence” presented during the course of seven evenings of hearings before the Planning Board. GHC attorney John A. Giunco presented Trinity Hall’s application to the Planning Board, and GHC attorney Paul H. Schneider represented the school before the Superior Court.


Due Diligence and the Bermuda Triangle: Getting it Done

April 7, 2016 | No Comments
Posted by Marc D. Policastro

Co-authored by Melissa A. Clarke

As published in the Spring 2016 edition of Dimensions

Due diligence can make or break a deal, and there is a lot on the line for those charged with getting it right.  (1)   From an environmental perspective in New Jersey, that can be daunting. The Bermuda Triangle of diligence occurs when on-site sources, off-site sources and “unknown” sources converge. Diligence “death traps” become more than manageable when the developer takes a disciplined approach, staying within the ambit of the Site Remediation Reform Act (SRRA) regulations and the various guidance documents provided by the New Jersey Department of Environmental Protection (NJDEP). (2)

Off-Site Source Groundwater Investigation
One of the most commonly encountered scenarios in due diligence occurs when contamination is found proximate to a contiguous parcel, where the contamination is subject to a prior approval which, miraculously, stopped exactly at the property boundary line. Although the developer’s Licensed Site Remediation Professional (LSRP) is empowered to issue a final approval where the contamination is from an “off-site” source, investors will generally demand that the contamination be cleaned up prior to construction. Read more


Extension of Freshwater Wetlands, Waterfront Development, and CAFRA Approvals after June 30, 2016

March 24, 2016 | No Comments
Posted by Michael J. Gross

The extended date of validity of approvals under the Permit Extension Act is June 30, 2016. For any wetlands approvals that can be further extended, you must request that extension at least 90 days prior to the expiration date. Therefore, the last date to request an extension for those approvals that expire June 30, 2016 is April 1, 2016. Any request for extension of Freshwater Wetlands Letters of Interpretation must be submitted prior to the expiration of the Letter of Interpretation, or by June 29, 2016. For CAFRA and Waterfront Development Permits, there is a more complex set of regulations since there are allowances for continued construction subsequent to the expiration date, five-year extensions under certain circumstance, etc.

The environmental attorneys at Giordano, Halleran & Ciesla, P.C. regularly counsel clients on matters involving public access, coastal permitting and CAFRA, as well as the administrative rulemaking process generally. They are readily available to assist in complying with state environmental regulations and in handling coastal development issues. Should you have any questions concerning environmental issues, please do not hesitate to contact any of the attorneys of our Environmental Department.