Appellate Division Affirms That Not Every Impairment In Property Value Will Establish A Government Regulatory Condemnation Claim

April 11, 2014 | No Comments
Posted by Afiyfa Ellington

In Scot Netherlands, Inc. v. State of New Jersey, Department of Environmental Protection, Docket No. A-5156-11T3 (App. Div. April 7, 2014), the Appellate Division reconfirmed that not every impairment in property value establishes a taking, noting that the allegation of an entitlement of intensive use will not avail the property owner if the project would not have been allowed under existing regulations.  Plaintiff, Scot Netherlands was denied a application for a fresh water and coastal wetlands permit by the Defendant, Department of Environmental Protection (“DEP”) to fill 17.44 and 1.36 acres of its 22.87 acre Atlantic City property to construct a surface parking lot and two storm water management basins, which Plaintiff contended constituted a regulatory taking based on the allegations that the regulatory scheme resulted in an alleged deprivation of economic benefit.  The trial court denied the Plaintiff’s claim of inverse condemnation with prejudice.

When the Appellate Division affirmed the trial court’s decision, the court noted that the Plaintiff’s property was valued at $200,000 despite the DEP’s regulations precluding further development as Plaintiff enjoyed an economically beneficial use of the property as rental for billboards for over 30 years.  Moreover, the testimony before the trial court through DEP’s expert supported the finding that the development as proposed would not have satisfied the requirements for issuance of a permit from the Army Corps. of Engineers.  The Appellate Division also held that the evidence supported the finding that the regulations did not destroy Plaintiff’s reasonable “investment backed expectations” as Plaintiff was aware of federal and state regulations governing the property.  Thus, Plaintiff failed to prove by clear and convincing evidence the three prongs necessary to show government regulation constitutes a compensable taking:  failing to demonstrate the proposed development would be viable but for the regulation; failing to offer evidence to demonstrate Plaintiff’s reasonable investment-backed expectations that it would not be subject to regulations; and failed to show that the character of the regulations burdening the property outweighed the harm which it addressed.


The COAH Saga Continues

March 14, 2014 | No Comments
Posted by Donna McBarron

On March 7, 2014, the Appellate Division entered yet another Order in the ongoing affordable housing quagmire.  On September 26, 2013, the New Jersey Supreme Court directed COAH to promulgate its third set of Round Three regulations — now 14 years overdue — by February 26, 2014.  Instead of complying with the Court’s Order, COAH sought an extension of time with the Supreme Court on the very same day the regulations were due.

Anticipating that COAH would fail to meet the Court-ordered deadline, Fair Share Housing Center (“FSHC”) filed a motion with the Appellate Division on December 17, 2013 seeking to enforce litigant’s rights.  This past Friday, the Appellate Division ruled on that motion and ordered COAH, among other things, to:

1)      Meet on March 12, 2014 to prepare third round regulations;

2)      Adopt the proposed regulations on March 26, 2014 for publication in the New Jersey Register; and

3)      Consider public comment on May 14, 2014 and adopt final regulations.

In perhaps the strongest statement yet that the court has reached its limit on COAH’s failure to act, the Appellate Division warned that each member of the COAH Board could be held in contempt and subject to monetary sanctions, civil detention and other sanctions if he or she failed to comply with its Order.

Within hours of the Appellate Division’s March 7, 2014 Order, COAH filed multiple motions with the Appellate Division and the Supreme Court seeking a stay of the March 7, 2014 Order.  Among other things, COAH argued that the Appellate Division should not have decided FSHC’s  motion while COAH’s motion for an extension was pending before the Supreme Court.  The Appellate Division denied the relief sought by COAH.

On March 11, 2014, the Supreme Court granted a temporary stay of the Appellate Division’s March 7, 2014 Order, and ordered  the Commissioner of the Department of Community Affairs (who is also the chairman of the COAH Board) to re-file his improperly filed certification.

On March 14, 2014, the Supreme Court finally ruled on COAH’s motion for an extension. It granted COAH’s motion and gave COAH a May 1, 2014 deadline to complete and formally approve proposed third round regulations so that they are published in the June 2, 2014 edition of the New Jersey Register.  The Supreme Court Order also provides for a comment period through August 1, 2014, and requires COAH to adopt the regulations by or before October 22, 2014 for publication in the November 17, 2014 edition of the New Jersey Register.   If COAH fails to meet these deadlines, the Court indicated that it will be willing to entertain motions which seek to lift the protections municipalities currently enjoy from builder’s remedy lawsuits.

This saga is far from over.   At this point, we simply need to wait and see if and when COAH’s 14-year delay will come to an end.

For more information on the status of COAH’s third round regulations, please contact our firm at any time.


Further Protection For The Public From Harmful Lead Exposure

February 24, 2014 | No Comments
Posted by Afiyfa Ellington

The U.S. Environmental Protection Agency (EPA) has announced this week that through enforcement actions, several home renovation contractors and training providers will take the necessary steps to protect the communities by ensuring the minimization of harmful lead dust arising from home renovations.  The Lead Renovation, Repair and Painting (RRP) Standards ensures the protection of the public from the harmful effects of lead dust that can cause lead poisoning by requiring information to be provided to owners and occupants of homes built before 1978 and child occupied facilities receive information on lead based paint hazards prior to the renovation commencing; ensuring that contractors and/or employees performing renovations are properly trained and certified by EPA; and that specific work practices are adhered to during the renovations to reduce exposure.  The New Jersey Council of Community Colleges will provide tuition free, EPA accredited training courses to renovators expected to work on projects impacted by Super Storm Sandy.


Middlesex County Sewer Service Area Update Delayed

February 18, 2014 | No Comments
Posted by Steven M. Dalton

Developers should take note of recent events pertaining to sewer service areas in Middlesex County.  The Middlesex County Board of Chosen Freeholders did not approve the Future Wastewater Service Area (FWSA) Map that had been proposed for adoption by the Middlesex County Planning Board in conjunction with the New Jersey Department of Environmental Protection (DEP).  The proposed FWSA Map update had long been in the works and was to replace the sewer service area map in effect for the County since 2007 as an amendment to the County Water Quality Management Plan (WQMP).  The lengthy FWSA map update process spanned several years.  It included extensive municipal and stakeholder input, and considerable back and forth between the County and DEP, culminating in public notice of the proposed FWSA Map published in October 2013, and a public hearing November 2013.  The Board of Chosen Freeholders, however, did not endorse the FWSA Map by a January 27, 2014 deadline set by DEP.  As a result, it appears to be back to the drawing board for the sewer service area updates.

The County is expected to now proceed with a more comprehensive update of the WQMP to include not only the map update but also the text of the WQMP and the various municipal Wastewater Management Plan chapters.  The time frame for such action is uncertain.

In the meantime, the sewer service areas under the 2007 Water Quality Management Plan remain in effect throughout the County by default until further action is taken by DEP or the County.  Parties with land interests in Middlesex County should evaluate how their land holdings are affected by this development.  Owners whose parcels are included in sewer service areas under the existing area map should consider pursuing applications for development approvals to establish grandfathering rights under the WQMP regulations before further changes to the sewer service areas occur.  Parties who would have benefitted from the FWSA Map by inclusion in the sewer service area, or who believe that site conditions warrant inclusion, should monitor the County’s activities and evaluate whether it is necessary to make a request for inclusion in the FWSA as part of the County WQMP update process.


GH&C Attorneys Secure Sewage Treatment Rights For Developer

February 5, 2014 | No Comments
Posted by Steven M. Dalton

Michael J. Gross and Steven M. Dalton of Giordano, Halleran & Ciesla’s Environmental Department played an instrumental role in securing one of the few site specific amendment approvals issued by the New Jersey Department of Environmental Protection (DEP) under the 2012 Water Quality Planning Act Legislation.  The site specific amendment, approved the day before the law was set to expire, was a critical component of a significant commercial development along Route 33 in Millstone Township, Monmouth County.  Prior to the amendment, the development was limited to a sewage disposal flow of only 2,000 gallons per day (gpd) discharge to ground water, which would have allowed for only one septic system on a roughly 57 acre parcel approved for 9 lots.  In securing the site specific amendment, the Monmouth County Water Quality Management Plan was amended to authorize a discharge to groundwater flow of 19,999 gpd, the maximum amount of flow obtainable under the law.  Working in collaboration with a team of environmental and planning professionals, GH&C’s attorneys successfully navigated the complex State and County application processes and secured a related New Jersey Pollutant Discharge Elimination System approval for the discharge to groundwater. Read more


Deadline For Completing NJDEP Remedial Investigations Extended For Two Years

January 23, 2014 | No Comments
Posted by Marc D. Policastro

On January 21, 2014, Governor Christie signed into law Assembly Bill No. 4543, allowing NJDEP to grant up to 2-year extensions for the completion of environmental “remedial investigations.” Under The Site Remediation Reform Act, remedial investigations are required to be completed by May 7, 2014. The extension option would in many cases obviate the need for the State’s “direct oversight” of non-complying cases.

The looming deadline applies to cases where contamination was identified, or should have been identified, on or before May 7, 1999. Major conditions of applicability for extensions include: (1) retention of a Licensed Site Remediation Professional (2) compliance with existing regulatory “mandatory time frames” (3) posting of a “remediation funding source” or “remediation trust fund” and (4) payment of all applicable fees and penalties. Responsible parties must also be in compliance with requirements addressing “initial receptor evaluations,” “immediate environmental concerns,” “light non-aqueous phase liquid interim remedial measure reports,” “preliminary assessment reports,” and “site investigation reports.”

Applications for extensions must be submitted by March 7, 2014. The State will then have 45 days to notify the applicant of its decision. If an extension is granted, NJDEP will be required to provide notice in the New Jersey Register and include the name and location of the site, the basis for the extension, and the length of the extension.

The ramifications of the new law are widespread, particularly with respect to contractual arrangements and due diligence deadlines affecting real estate and corporate transactional matters, as well as landlord-tenant matters.


Extension of May 7, 2014 Remedial Investigation Deadline

January 14, 2014 | No Comments
Posted by Marc D. Policastro

Yesterday, Assembly Bill No. 4543 passed in both the Assembly and Senate.  If signed by the Governor, the bill would allow NJDEP to grant up to 2-year extensions for the completion of environmental “remedial investigations.”  Under current law, remedial investigations are required by be completed by May 7, 2014 under the Site Remediation Reform Act.  The extension option would be significant, as it would in many cases obviate the need for the State’s “direct oversight” of non-complying cases.

The looming deadline applies to cases where contamination was identified, or should have been identified, on or before May 7, 1999.  Major conditions of applicability for extensions include: (1) retention of a Licensed Site Remediation Professional (2) compliance with existing regulatory “mandatory time frames” (3) posting of a “remediation funding source” or “remediation trust fund” and (4) payment of all applicable fees and penalties.  Responsible parties must also be in compliance with requirements addressing “initial receptor evaluations,” “immediate environmental concerns,” “light non-aqueous phase liquid interim remedial measure reports,” “preliminary assessment reports,” and “site investigation reports.”

Applications for extensions would be required to be submitted by March 7, 2014. The State would then have 45 days to notify the applicant of its decision. If an extension were granted, NJDEP would be required to provide notice in the New Jersey Register and include the name and location of the site, the basis for the extension, and the length of the extension.

The ramifications of the proposed new law are widespread, particularly with respect to contractual arrangements and due diligence deadlines affecting real estate and corporate transactional matters, as well as landlord-tenant matters.


Extension of 2012 Water Quality Planning Act Sent to Governor

January 14, 2014 | No Comments
Posted by Paul H. Schneider

On the last day of the legislative session both the Assembly and Senate passed and sent to Governor Christie a bill extending the 2012 Water Quality Planning Act.   The 2012 law was enacted to avoid the withdrawal of sewer service areas and to require that DEP resume the review and approval of applications for site specific amendments to water quality management plans (WQMP), which allow development projects to be added to a sewer service area.  The 2012 law automatically expires on January 17, 2014, and while the counties and DEP have adopted new sewer service areas in response to the 2012 law, other components of the WQMP planning process have not yet been completed, raising the specter that sewer service areas will be withdrawn and the site specific WQMP amendment process halted if the extension is not signed by the Governor. Read more


No News Is Good News? NJ Legislature Winds Down Its Session

January 8, 2014 | No Comments
Posted by Steven Corodemus

The 2012-2013 legislative session will come to a close on reorganization day, January 14. With the thousands of bills having been introduced during the current two year legislative cycle, only 250 bills became law. It was a relatively unremarkable voting session regarding environmental initiatives.  I for one, will be disappointed that many of the alternative fuel vehicle initiatives did not make it across the legislative finish line. If New Jersey and this country want to reduce mobile air emissions and reduce its reliance on foreign oil and gasoline, it must make the commitment to the construction of readily available recharging stations for alternative fueled vehicles powered by natural gas, electricity, etc. Read more


Remedial Investigation Deadline To Be Extended?

December 4, 2013 | No Comments
Posted by Steven M. Dalton

The Site Remediation Reform Act requires persons responsible for conducting remediation to complete remedial investigation of the entire contaminated site by May 7, 2014.  Responsible parties who fail to meet the deadline are subject to direct Department oversight and enforcement.  Negative consequences of direct oversight include among other things Department selection of the remedial action, delays due to Department review of all documents submitted by an LSRP, mandatory establishment of a remediation trust fund for the estimated costs of remediation, Department pre-approval of disbursements from the fund, and the implementation of a public participation plan for public comment concerning the remediation.  The Department carried out a comprehensive compliance notification process, and has indicated that it will aggressively enforce the deadline. Read more