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.

COAH Releases Its Long-Awaited Regulations

May 1, 2014 | No Comments
Posted by Donna McBarron

On April 30, 2014, COAH finally released its third iteration of the Round Three affordable housing regulations (“Proposed Regulations”). The Proposed Regulations are now available on COAH’s website.

As in the past, COAH’s Proposed Regulations assign municipalities their affordable housing obligations and confirm that municipalities who submit to COAH’s jurisdiction will be protected from builder’s remedy lawsuits.  However, there are many new features to COAH’s Proposed Regulations as well. Read more

Earth Day – Dredging Passaic River

April 23, 2014 | No Comments
Posted by Steven Corodemus

Earth Day is an appropriate time to reflect on the progress that we have made to make our environment a better place to live, work and enjoy. Recently the Chris Christie Administration announced an agreement with the US EPA to take action to address a very significant problem that has existed for decades – the contamination of the lower Passaic River in the Port Newark region.

Twenty years ago during my tenure in the New Jersey Legislature, I worked with another “Christie” – Governor Christine Whitman, on this same problem.  I and representatives from a broad spectrum of interested parties worked hard to preserve Port Newark and to identify a non-ocean disposal solution for contaminated sediments.  The Port is this region’s economic engine.  Daily, cargo ships deliver and export essential goods to the Northeast region and the entire United States through the Port. Read more

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.