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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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Rubright Named Associate of the QuarterDecember 19, 2014

Susan R. Rubright, member of Brach Eichler's Environmental & Land Use and Real Estate practice, has been named "Associate of the Quarter" for the 3rd quarter of 2014 by Metropolitan Builders and Contractors Association.

Related Practice: Environmental & Land Use

Attorney: Frances Stella

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Clustering - An Important Land Use Planning Tool - Gets a LiftAugust 16, 2013

On August 7th Governor Christie signed A3761/S2608, known as the Cluster Development Act, to amend the Municipal Land Use Law (MLUL) to allow municipalities to use clustering and lot size averaging more broadly to direct growth and preserve land. The Act expands upon the existing MLUL provisions that authorize cluster development and clarifies a provision of law that authorizes a related planning tool, lot-size averaging. Municipalities are authorized to pass clustering zoning ordinances, however, the landowner will have the option of deciding whether to cluster.

Related Practice: Environmental & Land Use

Attorney: Susan Rubright

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ASTM Issues New Guidance to Comply with CERCLA Continuing ObligationsMarch 8, 2012

ASTM International, Inc. has released guidance ASTM E2790-11 to provide procedures to assist users to satisfy continuing obligations applicable to the innocent landowners, the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (collectively referred to as the "Landowner Liability Protections," or "LLP"). This guidance presumes that a valid phase l or another report that satisfies the "all appropriate inquiries" test has been conducted at the property.

This guidance is intended to cover properties where chemicals of concern are known to have been (1) released on the property prior to acquisition by the current property owner, (2) are present at the property after acquisition by the current property owner due to migration from neighboring property, or (3) are discovered after property transfer where the Phase l (or other "all appropriate inquiries" document) provided no reason to know of the presence of chemicals of concern prior to transfer.

The continuing obligations and requirements set forth in the Brownfields Amendments to CERCLA include: (1) complying with any land use restrictions established or relied upon in connection with a response action at a property; (2) not impeding the effectiveness or integrity of any institutional controls employed at a property in connection with a response actions; (3) taking reasonable steps with respect to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances; (4) providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property; (5) complying with information requests and administrative subpoenas; and (6) providing legally required notices with respect to releases of any hazardous substances at a property. There are additional "continuing obligations" under CERCLA such as legally required notices, allowing access and coooperating with governmental regulators, which are not part of this guidance.

The ASTM Guidance sets forth the following steps for compliance:

(1) Review the Phase l to determine whether continuing obligations apply. If they do not, prepare a statement of no continuing obligations.

(2) If the property is subject to continuing obligations, a review and evaluation of the environmental conditions and the activity and use limitations at the property must be conducted.

(3) An evaluation must be made as to whether institutional controls, land use restrictions and/pr recognized environmental conditions exist at the property.

(4) If the answer to (3) is yes, then continuing obligations must be performed. The continuing obligations plan must be prepared and any initial continuing obligations executed.

(5) Perform continuing obligations.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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NJDEP Announces Expansion of E-Permitting for Land UseJanuary 13, 2012

Commissioner Bob Martin announced today that the New Jersey Department of Environmental Protection ("NJDEP") is expanding online permitting which will allow property owners and their contractors to apply online for certain types of freshwater wetlands permits. NJDEP has sought to use online permitting in an effort to simplify the permitting process to promote development in New Jersey.

While e-permitting has been used in other areas of NJDEP, last year the NJDEP began online permitting to allow applicants to apply for two types of waterfront development permits in coastal areas. Applicants are required to complete a short list of questions and to certify the responses. The applicants will then receive an automated acceptance or rejection.

In his announcement, Commissioner Martin noted that e-permitting provides "property owners and their contractors with a more customer- friendly and easier-to-navigate way to apply for and receive rapid decisions on two common types of land use permits, while still requiring applicants to meet the same high environmental standards."

NJDEP is expected to introduce later this year an online process to submit wetlands delineations, which will then be collected and stored in a NJDEP database for use by future property owners.

Related Practice: Environmental & Land Use

Attorney: Lindsay Cambron

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New Article on Site Remediation Professional ProgramMonday, December 13, 2010

Frances B. Stella and Lindsay P. Cambron of Brach Eichler's Environmental & Land Use Practice Group, have authored an article, "New Licensed Site Remediation Professional Program Raises Practical Issues," which appeared in the December 13 issue of the New Jersey Law Journal.

Related Practice: Environmental & Land Use

Attorneys: Lindsay Cambron and Frances Stella

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