Appellate Division Reverses DEP Decision Regarding Innocent PurchaserSeptember 22, 2017

The Appellate Division reversed a final agency decision by the New Jersey Department of Environmental Protection (“DEP”) regarding who and what is defined as a “person” under the Brownfield and Contaminated Site Remediation Act (“Brownfield Act”). Cedar Knolls 2006, LLC (“Cedar Knolls”) applied to the DEP to receive an innocent purchaser grant, which request was denied by DEP. DEP determined that Cedar Knolls did not qualify as a person under the Brownfield Act because of the way in which it acquired the property. The DEP denied the application stating that Cedar Knolls was not the same person who acquired the property prior to the 1983 date to become eligible for an innocent purchaser grant. Walter Higginson, who purchased the property in 1977, bequeathed the property upon his death to his wife through two different trusts. When those trusts terminated, the contents were transferred to their son and then to Cedar Knolls. Nine years after the transfer to Cedar Knolls, it applied for an innocent purchaser grant to assist with the clean-up of the contamination of the property.

The Appellate Division referred to the definition in the Industrial Site Recovery Act (“ISRA”) of a “change in ownership” finding that “although these definitional sections are not among the parts . . . that became the Brownfield Act, they nevertheless reflect the Legislature’s concerns with respect to changes of ownership at the time the innocent party grants were established.” ISRA provides that a “change in ownership” is not “a transfer where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling, or sibling of a parent of the transferee.” The Court found that, although Cedar Knolls is an LLC, because the transfers were made between family members that would not equate to a change in ownership, Cedar Knolls could qualify as a “person” under the Brownfield Act. The Court determined that the Legislature was more concerned with the “substance of ownership” and “continuity” rather than the precise legal form of the entity. Because this property was transferred within Mr. Higginson’s family and he would have otherwise qualified as an innocent purchaser, the Court reversed the DEP’s finding as to whether Cedar Knolls is a person to qualify as an innocent purchaser.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJDEP Updates Soil Remediation Standards for 19 CompoundsSeptember 21, 2017

The New Jersey Department of Environmental Protection (“NJDEP”) published revisions to the soil remediation standards for 19 contaminants. These updates bring the New Jersey standards more in line with the USEPA IRIS-based standards. Soil remedial standards for 11 compounds, including 7 PAHs, are now higher than previously. The updated soil remediation standards are operative as of September 18, 2017.

NJDEP also provided the following information regarding an error in the published update: A courtesy copy of the Notice of Administrative Change may be viewed at www.nj.gov/dep/rules/adminchg.html. Please note that the Notice contains errors for two contaminants. A Notice of Administrative Correction will be published in the October 16, 2017 New Jersey Register (a courtesy copy of the Notice of Administrative Correction can also be viewed at www.nj.gov/dep/rules/adminchg.html).

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Automatic Approval Of Site Plan Application Not Thwarted By Board’s “Denial Without Prejudice”August 21, 2017

The validity of an automatic approval of an amended site plan application was affirmed by the Appellate Division in a procedurally complex series of consolidated cases. (Shipyard Associates, L.P v. Hoboken Planning Board; City of Hoboken v. Shipyard Associates, LP; Shipyard Associates, LP v. Hudson County Planning Board and Hudson County Board of Chosen Freeholders)

The developer, Shipyard Associates, was seeking an amended site plan approval to construct two additional buildings in a location that was originally earmarked for tennis courts, and it submitted its application to the planning board in October 2011. The City subsequently sued Shipyard  in March 2012 to enforce its (the City’s) purported rights concerning the tennis courts under a Developers Agreement.

Thereafter, on July 10, 2012, the Planning Board refused to consider the merits of Shipyard's amended application, although Shipyard's attorney and witnesses were present on the scheduled July 10 hearing date to present the application. Instead of hearing the application, the Board denied it "without prejudice," over Shipyard's objection, on the theory that the Board lacked jurisdiction to entertain the application while the City's lawsuit was pending. In turn, Shipyard sued the Planning Board, asserting that the Board's refusal to adjudicate the merits of its application within the statutory timeframe set forth in N.J.S.A. 40:55D-61, resulted in its automatic approval of the application.

The Appellate Division affirmed the lower court’s order that Shipyard’s application was entitled to an automatic approval. The Appellate court stated that in denying the application without prejudice, the Board was unlawfully granting itself an extension of time to hear the application, until the City's lawsuit was decided.  The court stated "[w]e cannot countenance such an end-run around the statute," citing South Plainfield Properties, L.P. v. Middlesex County Planning Board, 372 N.J. Super. 410, 417 (App. Div. 2004) . According to the court, the Board could have heard the application and granted it conditioned on the outcome of the City's lawsuit, (or denied it) but the Board could not lawfully refuse to hear the application, which is what it did here.

Another lesson from the case, said the court, it is that the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications. The court stated “we have read the transcript of the July 10, 2012 Board hearing, in which objectors were interrupting the proceedings and shouting, ‘we want tennis courts.’ However, the Planning Board was obligated to hear Shipyard's application, no matter how controversial it was.”

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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NJDEP Publishes Updated Fees under SRRAJune 21, 2017

The New Jersey Department of Environmental Protection has increased its fees for the 2017-2018 fiscal year for annual remediation costs and permit fees. The new fees can be found at NJDEP’s website by clicking here.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJDEP Posts Compliance Notice for Properties with Institutional or Engineering ControlsApril 20, 2017

The New Jersey Department of Environmental Protection (NJDEP) is alerting responsible parties who have obtained No Further Action Letters and have an outstanding obligation to ensure the continued protectiveness of a remedial action that involves an institutional control or an engineering control. NJDEP has provided a link to the document that includes information regarding responsible parties, a list of non-compliant sites, steps to be taken to regain compliance, and the penalties for non-compliance. The information can be found at: www.nj.gov/dep/srp/enforcement/post_nfa_compliance_notice.pdf.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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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.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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Happy Thanksgiving!November 21, 2016



Related Practice: Environmental & Land Use

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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.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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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.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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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.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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