Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

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.

Continue Reading

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.

Continue Reading

Appellate Division Grants Leave to Appeal to Affordable Housing Decision, While Trial Courts Continue Towards Trial and Compliance Hearings

Posted in Development/Redevelopment

On April 11, 2016, the Appellate Division issued an order granting a motion by the Township of Barnegat for leave to appeal a decision by the Hon. Mark A. Troncone, J.S.C., designated Mt. Laurel judge for Ocean County, and also granted a number of motions for other municipalities from outside of Ocean County to appear as amici curiae in the case. The order returns the question of methodology – a hotly contested issue – to the Appellate Division. The counties comprising Region 4 (Mercer, Monmouth, and Ocean counties) of the Council on Affordable Housing (“COAH”) were set to be among the first to hold trials regarding the methodology for determining the municipal fair share housing obligations of municipalities. The grant of leave to appeal in the Ocean County case will necessarily delay any trial in that vicinage until the resolution of the appeal. This post briefly reviews the trial court’s decision, and the potential impact the decision to grant leave to appeal may have on pending declaratory judgment cases.

On February 18, 2016, the Hon. Mark A. Troncone, J.S.C. issued an opinion in which he determined as a matter of law that municipalities were required to comply with their constitutional obligation to provide realistic opportunities for the construction of housing affordable to low- and moderate-income families that had accumulated during the period from 1999-2016. This period is known as the gap period because COAH failed to promulgate lawful rules for determining fair share housing obligations during this period. Municipalities had generally claimed that requiring such an obligation would run contrary to the language of the New Jersey Fair Housing Act, which provides guidance for the determination of a prospective and present need, but does not make any pronouncements regarding the accrual of past need. Housing advocates and developers, however, pointed out that municipalities had, since 1999, always assumed the obligation was cumulative in their proposals to COAH and the courts, and, further, that the municipal reading of the Fair Housing Act is plainly contrary to the Appellate Division’s decision in In re Six Month Extension of N.J.A.C. 5:91-1, 372 N.J. Super. 61 (App. Div. 2004), where they relied on representations by municipalities and COAH that any obligation accruing during the gap period after the expiration of the Second Round Rules would be captured in the future Third Round Rules. Troncone’s decision recognized that the obligation itself is cumulative, and that by its very nature, it can have no gaps, echoing the language of the Supreme Court in Southern Burlington County NAACP v. Tp. of Mt. Laurel, 92 N.J. 158 (1983). The decision required, among other things, that the expert retained by municipalities – Econsult Solutions, Inc. – revise their estimates of the prospective need to include data from the period from 1999-2016, which led to an increase in the projections for future prospective need from approximately 35,000 units to over 72,000 units.

Continue Reading

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

Posted in Development/Redevelopment, Environmental & Green Issues

In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.

The May 7, 2016 deadline is the result of the New Jersey Site Remediation Reform Act (“SRRA”), which upended and revamped the process for remediating contaminated sites in New Jersey. Pursuant to SRRA, NJDEP no longer directly supervises the remediation process of every individual site. Instead, LSRPs licensed by the State are responsible for day-to-day oversight, regulatory compliance, and all necessary submissions to NJDEP related to clean-up efforts at most contaminated sites. However, responsible parties who fail to hire an LSRP or otherwise run afoul of the requirements of NJDEP’s site remediation regulations fall into “direct oversight.” The remediation of sites under direct oversight is managed directly by NJDEP and responsible parties lose the autonomy, flexibility, and cost savings that result from an LSRP-managed clean up.

At the time it was enacted, SRRA provided that sites requiring remediation related to discharge of hazardous substances pre-dating May 7, 1999 must complete a site-wide remedial investigation by May 7, 2014, or face direct oversight. That deadline was later extended by legislation to May 7, 2016 for responsible parties who filed for an extension. With that deadline rapidly approaching, NJDEP has indicated that no further extensions will be granted, and no additional legislation is expected.

Continue Reading

Proposed Definition of “Underutilized” for Brownfield Cleanup Act Amendments Draws Many Comments

Posted in Development/Redevelopment

Numerous organizations and individuals have submitted comments on the proposed definition of “underutilized” published by the New York State Department of Environmental Conservation (NYSDEC) on March 9, 2016, pursuant to the 2015 Brownfield Cleanup Act Amendments. The Amendments require NYSDEC to propose a definition for “underutilized,” one of the few remaining ways for New York City sites to qualify for tangible property tax credits under the State’s Brownfield Cleanup Program (BCP). As such, this definition is seen by many as crucial to the continued viability of the BCP as a cleanup mechanism for brownfield properties in New York City.

NYSDEC proposed a definition last June but withdrew its proposal after widespread public criticism. The new definition is an attempt to cure the deficiencies of the earlier proposal.

Continue Reading

NYSDEC Proposes New Definition of “Underutilized” for Tangible Property Tax Credits at New York City Brownfield Sites

Posted in Development/Redevelopment

On March 9, 2016, the New York State Department of Environmental Conservation (NYSDEC) proposed a new definition of an “underutilized” site for purposes of claiming tangible property tax credits for sites in New York City under the New York State Brownfield Cleanup Program (BCP).

As noted in prior blogs, the 2015 amendments to the BCP established new restrictions on the ability of sites in the five boroughs of New York City to obtain tax credits related to expenditures for site improvements. One of the criteria which would allow a site to qualify for such credits was that the site be “underutilized.” That term was left undefined by the Legislature, with instructions to NYSDEC to finalize a definition by October 1, 2015.

Continue Reading

“And/Or” – No More

Posted in Development/Redevelopment, Environmental & Green Issues

The use of “and/or” in drafting or, for that matter, anything other than the most casual communications, is one of our pet peeves. It is a substitute for careful drafting and an invitation to ambiguity.

Ken Adams, in his Manual of Style for Contract Drafting – which we highly recommend to any serious drafter – devotes two pages to using, or perhaps, better said, mis-using, “and/or.” Mr. Adams observes that since the mid-20th century, judges and legal-writing commentators have railed against the use of “and/or” to convey the meaning of the inclusive “or.” He makes the following points:

  • it is often used when the only possible meaning is that conveyed by “or.” For example, “Acme shall incorporate the Subsidiary in Delaware and/or New York.”
  • it is confusing to use “and/or” in language of obligation or prohibition. Instead of “Acme shall purchase Widget A and/or Widget B”, say “Acme shall purchase Widget A or Widget B, and may purchase both.”
  • if “and/or” is used to list more than two items, it is unclear if the “or” is inclusive or exclusive. In other words, A, B, and/or C could mean either one or all of A, B, and C, or one or more of A, B, and C.

Continue Reading

Howard Geneslaw and Jason Tuvel to Speak at the 2016 Land Use Update

Posted in Development/Redevelopment

Howard D. Geneslaw, a Director in the firm’s Real Property & Environmental Department and Vice Chair of the Land Use Section of the New Jersey State Bar Association, will be participating, both as a moderator and speaker, at the upcoming 2016 Land Use Update on Wednesday, February 24, 2016 in West Orange, New Jersey. Jason R. Tuvel, also a Director in the firm’s Real Property & Environmental Department and a Director of the Land Use Section, will be speaking when the same program is presented next month on March 16, 2016 in Mount Laurel, New Jersey.

Mr. Geneslaw has served on the Board of Directors of the Land Use Section since 2009. His law practice focuses on real estate development, redevelopment and related issues, including litigation, as well as on alcoholic beverage and liquor licensing matters in New Jersey, New York, and Connecticut. He is a licensed Professional Planner in New Jersey and a member of the American Institute of Certified Planners (AICP). Mr. Geneslaw will be moderating the entire program, as well as leading the panel discussion on ethics. He will also speak about a recent case on variances.

Continue Reading

NJ High Court Clarifies Standard for Revocation of Direct Access to State Highway from Commercial Property

Posted in Development/Redevelopment

In its recent decision in In Re Revocation of the Access of Block #613, the New Jersey Supreme Court clarified the standard governing the revocation of direct access from a State highway to a property used for commercial purposes under the State Highway Access Management Act and the State Highway Access Management Code. The case outlines the requisite procedure for revocation of a commercial property’s direct access to a State highway by the New Jersey Department of Transportation (NJDOT).

NJDOT sought to widen Route 166 in Toms River in an effort to increase safety, traffic capacity, and movement on the roadway. Arielle Realty, LLC, a commercial tenant, conducted business on a property at the corner of Route 166 and West Gateway that had direct access to both streets. Arielle Realty objected to the road widening project because it would essentially eliminate its commercial property’s direct access to the State highway, in addition to eliminating eight of the property’s parking spaces located in an existing NJDOT right-of-way.

Continue Reading

Gibbons Director David Freeman Featured in The New York Environmental Lawyer

Posted in Environmental & Green Issues

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, was recently profiled in the Fall/Winter 2015 edition of The New York Environmental Lawyer for his achievements as a longstanding member of the Environmental Law Section of the New York State Bar Association.

A member of the Section for more than 30 years, Mr. Freeman serves as Co-Chair of both the Committee on Hazardous Waste/Site Remediation and the Section’s Brownfields Task Force. The Task Force played an important role in the passage of the State’s Brownfield Cleanup Act in 2003 and the amendments enacted in 2008 and 2015, and in monitoring and commenting on the implementation of the Act by the Department of Environmental Conservation. Mr. Freeman received the Section’s Distinguished Service Award in 2001.

Continue Reading

Lexblog