Fish & Wildlife Finalizes Long-Eared Bat Rule

January 27, 2016 | No Comments
Posted by Michael J. Gross

In 2015, the United States Fish & Wildlife Service (“USFWS”) announced that it was listing the Northern Long-eared bat (Myotis septentrionalis) as a threatened species under the Endangered Species Act (“ESA”).  Citing the importance of bats to the nation’s ecology, specifically in controlling insect populations, USFWS’s decision to list the Northern Long-eared bat was primarily in response to white-nose syndrome, a fungal disease severely impacting North American bat populations.  Along with the listing announcement, USFWS proposed an interim rule designed to limit the regulatory burden on land owners and other impacted parties within the Northern-long eared bat’s range.  That rule became final on January 14, 2016. Read more

NJDEP Deadline Looming for Completing Remedial Investigations

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

Governor Christie’s signing of Assembly Bill No. 4543 into law in 2014 granted an extension of up to two years for the completion of remedial investigations, postponing the original deadline of May 7, 2014 to May 7, 2016. Those affected by this decision should be aware of the repercussions they will face for failing to meet the May 7, 2016 deadline, including substantial fines and contaminated sites being subjected to the Department’s “direct oversight.” NJDEP has advised that Remedial Investigation Reports and all other required forms must also be completed and submitted by this deadline.  The State’s “direct oversight” program may, among other things, obligate the responsible party to advance significant funds as collateral for required remediation work.

GH&C invites and welcomes further discussion on cases and matters involving remediation or other environmental challenges.

Appellate Division Upends Public Access Rules (Again)

December 23, 2015 | No Comments
Posted by Michael J. Gross

 UPDATE 1/8/16:
Yesterday a bill was voted out of the New Jersey Senate Environment Committee which would authorize DEP to require on or off-site public access as a condition of coastal permits.  Read more

DEP Coastal Centers Expiring

September 4, 2015 | No Comments
Posted by Steven M. Dalton

As of December 31, 2015, coastal centers established by the New Jersey Department of Environmental Protection (“DEP”) and classified as “mainland” coastal centers will expire absent legislative or administrative action to make mainland coastal centers a permanent designation or to extend their expiration date.  DEP mainland coastal centers include Egg Harbor, Lower Township, Toms River and Lakewood.  DEP “non-mainland” coastal centers for areas located in the barrier islands will remain in effect after December 31, 2015.
Read more

Coastal Rule Amendments Effective July 6, 2015

July 6, 2015 | No Comments
Posted by Steven M. Dalton

DEP’s proposed amendment of its regulations governing CAFRA, Waterfront Development and Coastal Wetland approvals creating a single regulatory chapter, now called the Coastal Zone Management Rules, took effect on July 6, 2015. The rule amendment consolidates the procedural aspects of the former Coastal Permit Program Rules and substantive provisions of the former Coastal Zone Management Rules. While more comprehensive substantive changes to the rules were sought by interest groups such as the New Jersey Builders Association (NJBA) among others, various noteworthy substantive changes were made. The Department increased the number of single family homes or duplex structures that may be approved by a General Permit authorization from one to two. A new category of General Permit-by-Certification was created for certain limited categories of minimal impact activities. The Department adopted some favorable beneficial amendments in the context of waterfront development, including amendments that will facilitate marina development. Regulatory changes were implemented in the context of mitigation requirements for CAFRA and Waterfront Development Permit approvals. Read more

Interested In Affordable Housing? Now Is The Time To Put Municipalities On Notice

May 18, 2015 | No Comments
Posted by Donna McBarron

On March 10, 2015, the New Jersey Supreme Court (“Court”) placed affordable housing compliance back in the hands of the trial courts due to the ineffectiveness and inaction of the Council on Affordable Housing (“COAH”). Following a 90-day stay of its decision, the Court afforded municipalities previously under COAH’s jurisdiction a 30-day period to file a declaratory action with the trial court. Thus, commencing on June 8, 2015 and continuing through July 8, 2015, municipalities previously under COAH’s jurisdiction will look to have their affordable plans processed by the court and will likely seek temporary immunity from builder’s remedy lawsuits while their plans are being processed.

Click here for the full article.

Updated DEP Fill Material Guidance To Facilitate Redevelopment

May 1, 2015 | No Comments
Posted by Steven M. Dalton

Developers of brownfields and sites regulated by the New Jersey Department of Environmental Protection’s (“DEP”) Site Remediation Program (“SRP”) often struggle with the issue of testing quarry/mine material used as fill.  Suppliers of quarry/mine material are typically reluctant to and often will not allow testing prior to delivery of the material, leaving developers at risk of enhanced remediation obligations if fill material contains hazardous substances above applicable cleanup standards, even if those substances are naturally occurring at the point of origin.  Testing quarry/mine fill materials also increases the cost of development compared to development at sites that are not regulated under the SRP, as quarry/mine material may be freely used as fill without testing and is not regulated at sites that are not under SRP jurisdiction. Read more

Appeals Court Questions Municipal Ordinances On Abandonment Of Nonconforming Use

April 10, 2015 | No Comments
Posted by Paul H. Schneider

Under New Jersey’s Municipal Land Use Law (MLUL), any nonconforming use or structure lawfully existing at the time of the passage of an ordinance making the use or structure nonconforming − sometimes called a prior nonconforming use − may be continued indefinitely. However, this right is lost if the use or structure is abandoned. Abandonment depends on the owner’s subjective intent. Discontinuing the use for a lengthy period of time may be one factor suggesting an owner’s intent to abandon the building or use, but the passage of time alone is not dispositive. Read more

Affordable Housing Is Now In The Hands of the Trial Courts

March 10, 2015 | No Comments
Posted by Donna McBarron

This morning, the New Jersey Supreme Court issued an Order and unanimous Opinion on COAH’s failure to adopt third round affordable housing regulations. In a nutshell, it held that due to COAH’s inaction, “there no longer exists a legitimate basis to block access to the courts.” Although the Supreme Court dissolved the exhaustion-of-remedies requirement from the Fair Housing Act, which encouraged voluntary compliance with affordable housing obligations through an administrative forum (COAH), it did not immediately open the floodgates for litigation.

Rather, the Supreme Court established a process for municipalities that had been previously processing their plans through COAH to file their plans with the trial court. These municipalities have 30 days from the effective date of the Order, which is not for another 90 days, to file a declaratory action with the court.

For the full article click here.

The Disaster Control Act Does Not Grant A Municipality With The Power To Acquire Perpetual Interests In Property

February 27, 2015 | No Comments
Posted by Afiyfa Ellington

In Minke Family Trust v. Township of Long Beach, Superior Court of New Jersey, Law Division, Ocean County, Docket No. OCN-L-3033-14 (Law Div. Feb. 13, 2015), Honorable Vincent J. Grasso, A.J.S.C. held that the shore protection provisions of the Disaster Control Act (“DCA”), N.J.S.A. App. A:9-51.5 to -51.9, does not empower the Township of Long Beach (“Township”) with the legal authority to declare an immediate taking and record a deed of “perpetual and assignable easement and right of way” against plaintiff’s property, in furtherance of a shore protection project for dune replenishment and flood reduction measures, without instituting a condemnation proceeding pursuant to the Eminent Domain Act, N.J.S.A. 20:3-1 to 20:4-22.  Judge Grasso held that if the Township sought to acquire perpetual interests in plaintiff’s property, it must adopt an ordinance authorizing the acquisition under the DCA and comply with the procedural requirements of the Eminent Domain Act.  Judge Grasso did acknowledge that the DCA authorizes the government to enter the property and take control and possession of the property to perform acts necessary during an emergency.