Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

New York State Brownfield Cleanup Act Reform: The Saga Continues

Posted in Environmental & Green Issues

New York State Brownfield Act reform did not survive the crush of last-minute negotiations over the State’s 2014-15 budget. The Governor’s office, the Senate, and Assembly each introduced their own proposals for accomplishing needed reforms but were not able to reach consensus on a path forward.

The attached article reviews the differences among the Governor’s, the Senate’s and the Assembly’s proposals on such key issues as: 

  • extending the expiration date for brownfield tax credits;
  • revising the definition of “brownfield site”;
  • restricting tangible property tax credits;
  • redefining costs eligible for tax credit treatment; and
  • establishing a new, streamlined program for sites not seeking tax credits.

The article discusses the merits of the respective proposals and makes suggestions as to how these differences might be resolved.

David J. Freeman is a Director in the Gibbons Real Property & Environmental Law Department.

Market Growth of Fuel Cell Products Follow Patent Growth of Fuel Cell Technologies

Posted in Environmental & Green Issues

Recently, Wal-Mart placed an order for 1,738 fuel cell powered forklifts that move products in Wal-Mart’s warehouses. This highly publicized order spotlights the emerging commercial markets, the technologies and patents that have made the production of energy through fuel cells more cost effective. The commercial use of fuel cells is certainly not new, however. Advancements in the technology have decreased costs associated with the production of energy from fuel cells and consequently there has been a rise in the commercial use of fuel cells. The Clean Energy Patent Growth Index shows that for the last decade fuel cell related patents outpaced all other clean energy technology patents until 2013 when solar patents for the first time surpassed fuel cell patents.

The number of patents that have been issued related to fuel cells is an indication of the varied forms of fuel cells and technology used in the production of fuel cells. A very simplistic description of the technology is that a fuel, typically hydrogen, is oxidized in the first segment of the fuel cell to create positively charged ions and negatively charged electrons. While the positively charged ions pass through the fuel cell, the negatively charged electrons are diverted and directed through a wire to create an electric current. The electrons complete the detour to meet up with the ions in the final segment of the fuel cell where they combine with oxygen to create water or carbon dioxide. The energy produced is clean, with water or carbon dioxide being the only by-product.

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Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues

1598886681Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought.

This new edition reworks the State Environmental Law Handbook Series from the ground up, beginning with an overview of the environmental law program in New Jersey, and moving on to discuss a variety of issues, such as contaminated property, finance and insurance, litigation, enforcement, and protected lands. Separate chapters treat air and water quality in depth, and further chapters treat hazardous waste, nuclear energy, health and safety, wildlife protection, and sustainability. The Handbook is available from Bernan Press.

* Photo courtesy of the New Jersey Environmental Law Handbook. Readers of this blog receive a special 30% discount on the Handbook with the promotion code A14NJELH.

New Jersey Law Journal Names Gibbons the 2014 “General Litigation Department of the Year”

Posted in Litigation

The New Jersey Law Journal has named Gibbons P.C. the “General Litigation Department of the Year” for 2014, the top award presented in its second annual “Litigation Departments of the Year” awards program. The general litigation award recognized the firm’s litigation strength in several areas, including commercial litigation, products liability, employment, intellectual property, and media law. In 2013, the firm’s Business & Commercial Litigation Department was named the “Commercial Litigation Department of the Year” in the same awards program.

The 2014 award also recognized the extensive value-added services Gibbons offers litigation clients, including its E-Discovery Task Force, comprehensive Litigation Support Department, innovative and custom alternative fee arrangements, and recruitment focus on former judicial clerks and retired jurists.

The competition was open to any law firm with a litigation practice and New Jersey presence. According to Ronald J. Fleury, Editor in Chief of the New Jersey Law Journal, “In just the second year that the Law Journal has been rating law firm litigation departments based on their recipes for success, participation among firms was noticeably more enthusiastic, and consequently, competition was keener. It was no easy task deciding on winners and finalists among a field of such strong contenders.”

“The cases we have litigated for clients in the past year address some of New Jersey’s more significant projects and hot-button issues,” notes Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “Our representative matters included the largest litigation our client had ever faced; one of the most complex groups of business bankruptcies ever filed; a major FINRA arbitration; a huge pharmaceutical class action; and a precedent-setting appellate decision.”

Having Trouble Filling Out the New SEQRA Environmental Assessment Forms? NYS DEC Has Scheduled a Series of Webinars to Help Shed Some Light on the Streamlined and Revised Forms

Posted in Development/Redevelopment, Environmental & Green Issues

It’s been six months since the new model State Environmental Quality Review Act (SEQRA) Environmental Assessment Forms (EAFs) became effective on October 7, 2013, and many individuals are still scratching their heads on how to efficiently and effectively complete the forms. In an effort to assist and instruct government agencies and the public on how to use the new model EAFs, the New York State Department of Environmental Conservation (NYS DEC) has announced a series of webinars to be held this spring. The webinars are designed to demonstrate how the new EAFs, the web-based framework for the guidebooks developed by NYS DEC, and the EAF Mapper, a software mapping program, work together to streamline the EAF completion process by both project sponsors (applicants) and reviewing agencies.

A list of the webinars to be held by NYS DEC from April 29th through May 22nd, as well as registration information can be found by clicking here.

The new EAFs can be found on NYCDEC’s website by clicking here.


Jennifer M. Porter is a Director in the Gibbons Real Property & Environmental Department.

EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

Posted in Environmental & Green Issues

heronIn 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act.

Justice Scalia’s plurality opinion in Rapanos, took a “wet” view of “waters of the United States,” restricting that term to “relatively permanent” water bodies that formed “geographic features.” Wetlands, under this test, fall within the statute’s scope only if they have “a continuous surface connection” to such bodies of water. By contrast, Justice Kennedy’s “dry” test construed the statute to cover any wetlands that have a “significant nexus” with “waters of the United States, i.e., that the wetlands, alone or in combination with similar lands in the region, significantly affect the chemical, physical, and biological integrity of covered waters. The main difference between the opinions is that Justice Scalia’s version focuses on the “wetness” and physical surface connection, while Justice Kennedy’s version focuses on the connection of other forces that affect waters, such as fauna, flora and chemical relationships. Thus under Justice Scalia’s definition, an isolated wet area near a stream that is waters of the United States would not be covered, notwithstanding bog turtles making their home in there and relying on the stream as part of their ecosystem. Justice Kennedy’s view would find the ecology of the bog turtle to be enough of a connection.

The proposed rule leans more towards Justice Kennedy’s definition. It covers the “regulated waters” as defined in CWA regulations and adds tributaries, impoundments and wetlands adjacent to those waters. In addition, it adds that on a case by case basis, the definition of “jurisdiction waters” can include those waters with a significant nexus to traditional navigable waters, interstate waters, or the territorial seas as consistent with the current science, the CWA, and the caselaw. Continue Reading

Divisibility Under CERCLA

Posted in Environmental & Green Issues

Although not expressly required under the statute, joint and several liability has usually been applied by courts when the government pursues cleanup against polluters under CERCLA. A party seeking to avoid joint and several liability has the burden of proving not only that divisibility of harm is possible amongst potentially responsible parties, but that a reasonable basis for such divisibility exists. Case law from federal district courts, circuit courts, and the U.S. Supreme Court makes it clear that satisfying this burden requires a very case-specific and fact intensive inquiry. Early planning and a focused strategy for how to frame the facts and theory of the case can make the difference in determining whether divisibility is both possible and reasonable.

In the article, “Never Say Never: The Search for Divisibility Under CERCLA,” published by the New Jersey Law Journal, Gibbons attorneys William S. Hatfield and Adam C. Arnold examine the way in which courts are approaching this analysis and offer strategies for addressing these issues.

Appraisal Provisions in Leases Mean More Than You Think in New Jersey

Posted in Transactional Real Estate & Leasing

It is a common belief that appraisal provisions in leases governing future renewal rents don’t really mean anything. The logic behind this conclusion is that regardless of what the lease says, if the tenant doesn’t receive a new rent number that justifies staying, it will leave. There is a lot of truth to this. However, a recent New Jersey Appellate Division decision, Cablevision of Oakland, LLC vs CK Bergen Holdings, LLC, App Div 27-2-3149 demonstrates neither a landlord nor a tenant can rely on conventional wisdom as a reason to forego doing the right job in the documents. If you are concerned about the methodology to be used in the appraisal process you had better make that clear in the lease. And if you want the Court to have the power to review an appraisal to determine whether there was compliance with the methodology mandated by the lease, you better make that clear in the lease, too.

In this case, Landlord and Tenant were at the point where the appraisal process was the determinant of renewal rent. How it got to that point is unclear. The provision had each of Landlord and Tenant appoint an appraiser and, absent agreement, a third appraiser would be appointed, whose sole opinion would be final. Tenant’s appraiser came in at $12 psf and Landlord’s appraiser came in at $25 psf – a massive differential resulting in a rent difference of approximately $750,000 per year, or, at a 6% “cap rate”, a valuation difference of $12,500,000. Given this differential, the third appraiser approach was utilized. He came in at $11 psf – $1 psf less than Tenant’s appraiser.

Landlord refused to sign an amendment memorializing this result. Tenant moved to compel Landlord to do so. Landlord’s defense essentially consisted of the argument that the third appraiser’s conclusion was flawed because the lease provisions which mandated how fair market rent was to be calculated, were not followed. The Court spent a few paragraphs disagreeing with Landlord’s specific arguments, including the following: Continue Reading

Jason Tuvel Will Speak at the 2014 Land Use Update

Posted in Development/Redevelopment

Tuvel, J. (300 dpi)Jason R. Tuvel, a Director in the Gibbons Real Property & Environmental Department, will be a speaker at the 2014 Land Use Update on Wednesday, March 19, 2014, in West Orange, New Jersey.

The all-day program, sponsored jointly by NJICLE and the NJSBA Land Use Section, will cover the past year’s judicial decisions – both reported and unreported – as well as regulatory, legislative and ethical issues that impact this constantly evolving area of practice. The program will provide essential information and strategies for handling the latest and most challenging land use issues.

Mr. Tuvel is participating in several of the panels. On one panel, he will provide a legislative update. He will also be speaking on Site Plans and Subdivisions, covering such topics as applications, conditional uses and non-conforming uses. On the third panel, he will speak on key issues developers need to be aware of, such as Off-Site Exactions and Impact Fees, Stop Work Orders, and OPRA, among others.

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Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

Posted in Environmental & Green Issues

The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014.

In order to apply for the extension, the person responsible for conducting the remediation is required to authorize the licensed site remediation professional (“LSRP”) to submit the extension form by certifying that the conditions required to qualify for the extension have been met and signing the authorization form. The application together with the authorization form must then be submitted by the LSRP online. NJDEP will not accept paper forms. The instructions to complete the authorization form can be found here, and the instructions to complete the extension form can be found here.

Kate N. Ambrosi is an Associate in the Gibbons Real Property & Envronmental Department.