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.

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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.

No Statute Of Limitations For Spill Act Contribution Claims

January 28, 2015 | No Comments
Posted by Paul H. Schneider

The general statute of limitations for claims alleging injury to real property is six years.  However, a recent decision of the New Jersey Supreme Court ruled that private claims for contribution made pursuant to the New Jersey Spill Compensation and Control Act (Spill Act) are not subject to any statute of limitations. Read more

Supreme Court Reinstates Downzoning Ordinance

January 23, 2015 | No Comments
Posted by Steven M. Dalton

Property owners who had successfully challenged a municipal open space ordinance that downzoned their property from one unit per acre to one unit per twenty acres on the purported basis of promoting “smart growth” and protection of environmentally sensitive lands achieved only a short-lived victory.  In the January 22, 2015 decision of Griepenburg v. Ocean Township, the Supreme Court reversed the Appellate Division and reinstated a trial court decision upholding the validity of the ordinance. Read more

Town Need Not Address Master Plan Change

January 19, 2015 | No Comments
Posted by Paul H. Schneider

A New Jersey appeals court has ruled that a municipality is not required to respond to a proposed zoning change recommended by the town’s planning board in a master plan reexamination report.  Under New Jersey’s Municipal Land Use Law (MLUL), municipal planning boards are responsible for preparing master plans and reexamining those master plans at least every ten years.  Among other things, the periodic reexamination reports may recommend specific changes to zoning ordinances.  Read more

Safe Dam Act Casts Broad Net

January 6, 2015 | No Comments
Posted by Paul H. Schneider

The Safe Dam Act (SDA) requires “[a]n owner or person having control of a … dam,” such as the dams that form artificial lakes and other impoundments throughout New Jersey, to maintain the dam in accordance with current regulatory standards and to implement “any action ordered” by the Department of Environmental Protection (DEP) to correct unsafe conditions.  Many lakes and impoundments were created decades ago for agricultural or commercial purposes but are now enjoyed for recreation or scenic value.  Often the dams do not conform to current engineering standards, and compliance with the SDA can be costly. Read more