Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

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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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.

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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.

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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.

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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.

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