NJ Supreme Court Finds Municipalities Must Address "Gap Years" Housing NeedFebruary 2, 2017
The New Jersey Supreme Court has ruled on the "gap years" (1999-2015) issue that has preoccupied municipalities and developers for almost two years and that effectively continued to prevent the provision of affordable housing from moving forward. The gap years are the years in which the Council on Affordable Housing (COAH) failed to adopt lawful regulations and fair share numbers. The NJ Supreme Court’s January 18, 2017 opinion makes clear that fair share need numbers must be calculated for the gap years. Thus most, if not all, municipalities will face higher fair share obligations that their fair share housing plans must address.
Happy Thanksgiving!November 21, 2016
Related Practice: Environmental & Land Use
NJ Supreme Court Agrees to Hear Appeal on "Gap Year"September 12, 2016
On September 8, 2016, the New Jersey Supreme Court agreed to hear an appeal of the Appellate Division's decision on what has become known as the "gap year" issue. The gap years include the years 1999 through 2015, during which time COAH failed to adopt lawful regulations. The issue on appeal is whether the trial courts should establish fair share numbers reflecting the need for affordable housing that was generated during those years. Municipalities have argued that this need does not have to be considered as persons needing housing during those years have found housing elsewhere. They also do not want to be “penalized” for COAH’s failure to act.
EPA Documents Severe Corrosion in Diesel USTs Unnoticed by Tank OwnersAugust 26, 2016
The United States Environmental Protection Agency (“EPA”) issued a report last month wherein it documented findings that the majority of diesel underground storage tanks (“USTs”) it reviewed showed signs of moderate or severe corrosion. In January and February of 2015, EPA investigated 42 UST systems in 40 locations across the United States. Of those 42 USTs, 24 had fiberglass tanks and 18 had steel tanks. 35 of the 42 UST systems or 83% showed moderate to severe corrosion. The report provides that “across the sample population, EPA observed corrosion occurring on all types of UST system metal components, including submersible turbine pump shafts, automatic tank gauge probe shafts, risers, overfill equipment like flapper valves and ball valves, bungs around tank penetrations, inner walls of tanks, and fuel suction tubes.” While the EPA could not identify a cause of this corrosion, it reports that multiple underlying factors and corrosion mechanisms may be responsible for the corrosion that UST owners have been reporting since 2007. In its press release, EPA also reported that fewer than 25% of UST owners were aware of the corrosion prior to the investigation. EPA is continuing to work with the scientific experts and the industry to determine the causes of the corrosion. In addition, EPA encourages owners of diesel USTs to check and investigate their tanks.
Appellate Division Decides Affordable Housing “Gap Year” QuestionJuly 18, 2016
The Appellate Division of the Superior Court has ruled that "gap year" need cannot be calculated in the way that has been presented to the courts thus far. The gap years are the years 1999-2015, i.e., the years in which the Council on Affordable Housing (COAH) was non-functional. In March 2015 the New Jersey Supreme Court returned exclusionary zoning matters to the trial courts and directed them to establish the fair share numbers that COAH had failed to lawfully calculate for years. One fair share methodology proposed to the trial courts was a methodology prepared by David N. Kinsey, Ph.D, in conjunction with the Fair Share Housing Center. That methodology proposed to calculate the gap year need numbers as "prospective need," as COAH had done in the past. Most municipalities retained the firm of Econsult Solutions to calculate fair share numbers. Econsult proposed that the gap year need should not be considered. Judges hearing the exclusionary zoning disputes in Ocean County ruled that the Kinsey approach was correct and Ocean County municipalities appealed this decision to the Appellate Division.
In reversing the Ocean County trial court decision, the Appellate Division ruled that gap year need cannot be included within the prospective need portion of fair share obligations. The Appellate Division determined that prospective need can only include need based on projections, and cannot be retrospective.
Parties such as Fair Share Housing Center may request that the New Jersey Supreme Court hear an appeal of the Appellate Division decision, and reverse that court's rulings. The Appellate Division’s ruling was unanimous, however, meaning the state Supreme Court would have to decide whether to accept an appeal.
Despite the Appellate Division's gap year opinion, municipalities remain obligated to satisfy their "prior round" obligations (those fair share obligations COAH calculated for the 1987-1999 time period), their present need obligations, and prospective need obligations (the projected need for affordable housing arising over the next 10 years). The numbers must take into account current needs, which could be influenced by the slowdown of affordable housing development since 2000; a projection of the need for additional housing over the next decade; and any still-unmet needs assigned by COAH before 1999.
Affordable housing advocates assert that the present need component should now be recalculated to include some or all of the gap year need arguing that the gap year need should not be ignored simply because COAH did not do its job for 16 years.
Limited Permit Extension Act PassedJuly 5, 2016
A very limited extension to the Permit Extension Act has been signed into law. The law extends the end date on approvals to December 31, 2016 (with up to an additional 6 months under the tolling provision) BUT ONLY in the 9 counties most impacted by “Super Storm Sandy”: Atlantic, Bergen, Cape May, Essex, Hudson, Middlesex, Monmouth, Ocean, and Union counties.
TSCA Reform Bill Now LawJune 22, 2016
President Obama signs the long awaited Toxic Substances Control Act reform bill into law after a more than three year effort to reform the 40 year old law. The Frank R. Lautenberg Chemical Safety for the 21st Century Act is a bipartisan law that will update the rules regarding chemicals and will provide the United States Environmental Protection Agency with greater authority to regulate toxic substances.
LSRP Required for Child Care FacilitiesJune 13, 2016
The New Jersey Department of Environmental Protection (“NJDEP”) is no longer issuing Child Care Facility Approval Letters. Pursuant to NJDEP’s “Environmental Guidance for all Child Care and Educational Facilities,” a Licensed Site Remediation Professional must be retained, a Preliminary Assessment completed and a Response Action Outcome issued. The guidance can be found on NJDEP’s website.
Congress Passes TSCA Reform BillJune 9, 2016
The Senate unanimously passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, named for New Jersey’s late Senator. This legislation will reform the Toxic Control Substances Act after nearly 40 years. President Obama is certain to sign the legislation, which will put into law legislation that has been working its way through Congress since before Senator Lautenberg’s death three years ago.
Earth Day 2016April 22, 2016
Related Practice: Environmental & Land Use
- Clean Air Act
- Clean Water Act
- Climate change
- Affordable Housing
- Due diligence
- Eminent Domain
- Floor hazard regulation
- Land Use
- Natural resource damages
- NJDEP Waiver Rule
- Site remediation
- Spill Act
- Toxic torts
- Vapor intrusion