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.

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.