Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

N.J. Appellate Division Holds that Municipalities are not Obligated to Satisfy “Separate and Discrete” Gap Period Need for Affordable Housing

Posted in Development/Redevelopment

On July 11, 2016, in an interlocutory appeal, the Appellate Division reversed Judge Mark A. Troncone’s February 18, 2016 order, which had found, as a matter of law, that municipalities were obligated to provide realistic opportunities for the construction of affordable housing for the need that accumulated during the period from 1999-2016 (the “gap period”). In an opinion by Judge Fasciale, the Appellate Division held that municipalities were not required to discretely calculate or satisfy the housing obligations that accumulated during the gap period as part of a municipality’s “prospective need.” In the Appellate Division’s view, those who are living in dilapidated, overcrowded, or cost-burdened housing would be adequately reflected in present need calculations, and any further alterations to municipal obligations would require legislative or executive action. The opinion highlights what appears to be a distinction between the constitutional fair share housing obligation, which had been understood to accrue year after year according the Court’s decision in Mt. Laurel II, and the compliance obligations arising under the Fair Housing Act, which are limited only to satisfying the statutorily prescribed need.

In its analysis, the Appellate Division specifically examines whether the Fair Housing Act or the core principles of the Mt. Laurel doctrine would permit a “separate and discrete” gap period obligation. Relying on the definition of “prospective need” set forth in the Fair Housing Act (N.J.S.A. 52:27D-304(j)) and the guidance of the Supreme Court’s opinion in In re the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015), the court held that there was no authority for retroactively calculating the gap period distinctly. Further, the court also held that there was no foundation for any calculation of gap period need in any of the proposed Third Round regulations, dating back to COAH’s first attempts to promulgate conforming Third Round regulations in 2004. Prospective need, according to the Appellate Division, encompasses only the next ten years, not to any previously accrued need. In reaching this determination, the court relies in part on legislative silence, noting that in the twelve revisions to the Fair Housing Act between 1999 and 2016, the Legislature never addressed the satisfaction of gap period need.

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Plans for New Medical School Move Ahead as Hoffmann-La Roche Announces Completion of Purchase and Sale Agreement of its 116-Acre Campus

Posted in Development/Redevelopment, Real Estate, Transactional Real Estate & Leasing

As reported in today’s NJBIZ, Hoffmann-La Roche has completed the purchase and sale agreement of its 116-acre campus, located in Nutley and Clifton, NJ, to PB Nutclif I, an affiliate of Prism Capital Partners. Seton Hall University and Hackensack Meridian Health then entered into a long-term lease with the developer for the creation of a private medical school and clinical research center. Seton Hall will also relocate its College of Nursing and School of Health and Medical Sciences to this site.

A team of Gibbons attorneys, led by Russell B. Bershad and Douglas J. Janacek, co-chairs of the Gibbons Real Property & Environmental Department, has represented Roche in the real estate and development aspects of this transaction and the preparation, negotiation, and completion of all transactional agreements. Closing is scheduled to be completed on September 30, 2016, and is contingent on obtaining development approvals for the School of Medicine.

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Legislature Approves Retroactive One-Year Extension of New Jersey’s Permit Extension Act in Superstorm Sandy-Impacted Counties

Posted in Development/Redevelopment

New Jersey’s Permit Extension Act (“PEA”) sunsetted at the end of 2015 when the Legislature did not enact a further extension. It has now been resurrected and extended retroactively, for one additional year, in nine counties most impacted by Superstorm Sandy.

New Jersey’s Permit Extension Act (“PEA”) was initially enacted  in 2008 in response to “the crisis in the real estate finance sector of the economy.” The purpose of the PEA was to toll, through the end of 2012, expiration of various approvals necessary for development. The PEA was later amended in 2012, due to the then “current national recession,” to extend the tolling of the expiration of those approvals until December 31, 2014, and a subsequent amendment extended it until December 31, 2015.

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Gibbons Director Howard Geneslaw Installed as Chair of the Land Use Section of the New Jersey State Bar Association

Posted in Development/Redevelopment

Howard D. Geneslaw, a Director in the Gibbons Real Property & Environmental Department, was installed as Chair of the Land Use Section of the New Jersey State Bar Association (NJSBA) during the section’s annual dinner at the New Jersey Law Center in New Brunswick on June 15.

Mr. Geneslaw has served on the Board of Directors of the Land Use Section of the NJSBA since 2009. He served as Secretary from 2014-2015 and Vice Chair from 2015-2016. The NJSBA’s Land Use Section serves as the statewide leader concerning issues involving or related to the field of land use law, including reviewing developments in land use law and attempting to reduce or eliminate costs and delays associated with the land use approval process.

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Retail Liquor License Renewals Now Due

Posted in Liquor Licensing

All New Jersey retail liquor licenses for the 2015-2016 license term expire on June 30, 2016. All New Jersey retail liquor licensees should have received notification in April through the Division of Alcoholic Beverage Control’s (ABC’s) web-based system, POSSE ABC, to renew their liquor licenses utilizing the ABC’s online portal. Subject to the specific renewal deadline fixed by each municipality, all state and municipal retail liquor license renewal fees for the 2016-2017 license term are currently due. Prior to renewal, all retail liquor licensees must also receive an Alcoholic Beverage Retail License Clearance Certificate for renewal from the Division of Taxation.

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William Hatfield, Susanne Peticolas, and Shawn LaTourette Speak at the 2016 Environmental Law Section Forum

Posted in Environmental & Green Issues

William S. Hatfield and Susanne Peticolas, Directors, and Shawn M. LaTourette, an associate, in the Gibbons Real Property & Environmental Department will speak at the annual New Jersey State Bar Association Environmental Section Law Forum on June 24-26, 2016 at the La Mer Beachfront Inn in Cape May, New Jersey.

Mr. Hatfield and Ms. Peticolas are speaking on the panel captioned “Divide and Conquer – Using Experts to Battle the Scourge of Joint and Several Liability.” Dr. Adam Love and Gregory Martin of Roux Associates round out the panel, which will examine the legal and technical issues in seeking a divisibility defense following the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Ry Co. v. United States.

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EPA Provides Look Into Pending Financial Assurance Regulations

Posted in Environmental & Green Issues

Recently, the United States Environmental Protection Agency (“EPA” or “the Agency”) shared some preliminary details regarding its impending proposal of financial assurances regulations for the hardrock mining industry. These regulations, which are still under consideration by the Agency, will likely serve as a harbinger of the financial assurances requirements EPA intends to impose on other industries, and collectively, they have the potential to have a significant financial impact on parties responsible for cleaning up contaminated properties.

Financial assurances” are designed to ensure that sufficient funds remain available to ensure the complete remediation of the contaminated property throughout the remediation process. Financial assurances often take the form of trust funds in which responsible parties deposit monies dedicated to a specific Superfund site or “self-guarantees” whereby the responsible party demonstrates that it has the financial wherewithal to continuously fund a remediation itself. Under Section 108(b) of the Comprehensive Environmental Recovery, Compensation and Liability Act (“CERCLA”), EPA is required to propose and adopt regulations governing the mechanisms and procedures of financial assurance requirements. Notwithstanding the clear statutory obligation, EPA has not taken formal action on financial assurances regulations for more than 30 years, and has instead relied on its settlement and enforcement authority under CERCLA to require that responsible parties provide some form of financial assurance. However, in response to an action filed in a federal appeals  court in 2014, EPA agreed to promulgate industry-specific financial assurance regulations as required by Section 108(b).

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No Need to Wait: Supreme Court Permits Judicial Review of Wetlands Jurisdictional Determinations

Posted in Environmental & Green Issues

As we reported, four years ago, in Sackett v. EPA, the U.S. Supreme Court held that a recipient of a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order before obtaining judicial review of its validity. In a recent opinion the Court extended the rationale of Sackett and again lowered the threshold of judicial reviewability, holding that a landowner can seek judicial review of a mere determination by the U.S. Army Corps of Engineers (Corps) that its property contains wetlands whose filling would require a permit under the Clean Water Act.

The recent case, United States Army Corps of Engineers v. Hawkes Co., involved three companies that sought to conduct peat mining operations on a 530-acre tract in Minnesota. Because there were wetlands on the tract, they applied to the Corps for a permit under Section 404 of the Clean Water Act. The statute requires such a permit for any “discharge of any pollutant” into wetlands that constitute “waters of the United States.” The permit process can be expensive and time-consuming, and discharging fill material into regulated wetlands without a permit is punishable by substantial civil and criminal penalties.

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U.S. Fish and Wildlife Proposes Changes to Eagle Management Program

Posted in Development/Redevelopment, Environmental & Green Issues

On May 4, 2016, the United States Fish and Wildlife Service (“FWS”) proposed amendments to regulations governing its comprehensive eagle conservation and management program. The proposal follows a successful challenge by environmental groups to FWS’ prior attempt to change its eagle rules, which was tossed out by a federal judge in 2013. The proposed modifications include changes to the manner by which FWS issues permits allowing otherwise prohibited activities which may unintentionally injure or disturb golden and bald eagles.

These permits, known as “take” permits, are issued pursuant to FWS authority under the Bald and Golden Eagle Protection Act (the “Eagle Act”). The Eagle Act and corresponding regulations provide that no person is permitted to “take” (i.e. kill, injure, or disturb) a golden or bald eagle without first obtaining a permit from FWS. The Eagle Act extends protection to golden and bald eagles due to their cultural importance, as well as their formerly dwindling numbers. Federal protections are credited with bringing the number of bald eagles in the contiguous United States from a low of 500 nesting couples to approximately 72,000 individuals today (that number more nearly doubles if the population of bald eagles in Alaska is included). Due in part to past conservation efforts, golden eagles and bald eagles are not federally-listed endangered species, but remain protected by the Eagle Act as well as the Migratory Bird Treaty Act.

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Governor Christie Vetoes Offshore Wind Bill

Posted in Development/Redevelopment, Environmental & Green Issues

Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.

S988 would have been an extension of the Offshore Wind Economic Development Act (“OWEDA”) which went into effect in 2010. OWEDA directed BPU to create an offshore wind credits program and require a percentage of electricity sold in New Jersey to come from offshore wind energy. OWEDA also authorized BPU to accept applications for “qualified offshore wind projects,” defined as a wind turbine electricity generation facility located in the Atlantic Ocean connected to a New Jersey electricity transmission system. No offshore wind projects have been approved since the passage of OWEDA. The Governor had previously refused to approve an earlier version of the bill in early 2016. That version of the bill would have eliminated the requirement in OWEDA that a project sponsor prepare and submit a cost-benefit analysis for consideration by BPU as to whether the proposed project provides a net benefit to New Jersey.

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