Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

Howard D. Geneslaw, Esq., PP, AICP, a Director in the Gibbons Real Property & Environmental Department, will be a speaker at the 2010 New Jersey Planning Conference on Friday, November 5, 2010, in New Brunswick, New Jersey. Howard’s topic will be “The Due Diligence Process: Protection for Both the Public and Private Sectors.” Two consulting planners will also be a member of the panel.

The conference, which runs from November 4-5, is jointly sponsored by the New Jersey Chapter of the American Planning Association and by the Edward J. Bloustein School of Planning and Public Policy at Rutgers University. It will include many sessions which relate to a variety of planning topics.

For more information or to register for the conference, click here.

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On Wednesday evening, October 19, 2010, the New Jersey Business and Industry Association (NJBIA) presented its annual "Awards For Excellence" to eleven New Jersey businesses for laudable Business Expansion, Environmental Quality, as Outstanding Employers, and for Public Service. Gibbons P.C. was amongst four companies honored for Public Service, joining two Gibbons clients, Peloton Advantage, LLC, the winner of the Business Expansion Award, and Hall’s Warehouse Corp., honored with a NJ Businesses Environmental Quality Award.

The "Gibbons Cares" community outreach initiative was recognized with a Public Service Award for its support of five focus areas: women in transition, fellowships fostering leadership in the next generation of New Jersey minority students, the City of Newark and its institutions, the needs of New Jersey food banks and the support of charities assisting Gibbons’ extended "family."

Peloton Advantage, LLC serves the pharmaceutical, biotech and medical device industries by providing publication planning, medical content development and sales training services. Peloton’s "good news" business experience is that it has experienced dramatic and rapid expansion in both numbers of employees, with a 428% increase, and in revenues, up 386% over the last five year period.

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On October 20, 2010, Chief Judge Jonathan Lippman of the State of New York announced that lender’s counsel in residential foreclosure actions will now be required to file an affirmation certifying that they have taken reasonable measures to verify the accuracy of documents submitted in connection with the action. The new rule is effective immediately. The New York State Unified Court System has provided a sample affirmation that was released with Judge Lippman’s statement.

Under the new rule, there are three specific instances when an affirmation needs to be submitted:

• For new cases, with the Request for Judicial Intervention;
• For pending cases, with either the proposed order of reference or the proposed judgment of foreclosure; and
• In cases where a foreclosure judgment has been entered, but the property has not yet been sold at auction, the affirmation must be submitted to the referee, and a copy filed with the court, no later than five business days before the scheduled auction.

Finally, there is a “continuing obligation” to file an affirmation if an attorney learns of new facts after the initial filing.

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How can the New Jersey Department of Environmental Protection (NJDEP) be improved? The agency released two different perspectives on that question over the past few weeks: a “top-down” view in the form of a “Transformation Plan” for reforming NJDEP, and a “bottom-up” view in the form of a compilation of hundreds of complaints and suggestions from NJDEP employees.

The NJDEP Transformation Plan released on October 7 announces the agency’s commitment to “making fundamental changes in how we function and in how we think about what we do daily.” Drawing on NJDEP’s new Vision Statement and a set of agency-wide priorities established by Commissioner Bob Martin, the Transformation Plan sets forth an ambitious program for changing both how NJDEP does its job -- changing its “business processes,” in the words of the plan -- and the substance of its policies. Underlying all three documents is a belief that environmental protection and economic growth can and must go hand in hand. Indeed, among the four “mission critical” priorities for NJDEP, the Transformation Plan lists “[s]upporting economic development of the State’s economy.”

Less sweeping in its verbiage but equally revealing about the agency is a set of over 700 complaints and suggestions from NJDEP employees released on October 14. The compilation, arranged by program area, ranges from the mundane (problems with telephones) to the far-reaching (frustration with enforcement policies). The survey provides an interesting glimpse into the internal workings of NJDEP at the staff level, where any agency-wide transformation would have to take root. The administration’s decision to make the compilation public may be an effort to show the public that support for changing NJDEP is not limited to management or political appointees but is shared by the rank and file.

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Jennifer M. Porter, Esq., an Associate in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program, SEQRA, on Tuesday, December 7, 2010 in Carle Place, New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on analysis framework and techniques, mitigation measures, interaction with other statutes and emerging fields in environmental review. Ms. Porter will open the seminar by discussing SEQRA basics including state and local SEQRA regulations, process and procedures, agencies and decisions subject to SEQRA, determining significance and environmental impact statement (EIS) preparation and review.

The program is particularly timely in view of New York Department of Environmental Conservation’s recent and long overdue release of the latest edition of the State Environmental Quality Review Act Handbook. The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

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On October 15, the United States Environmental Protection Agency (“USEPA”) released a draft plan addressing its RE Powering Americas Land Initiative. The Initiative is designed to encourage development of renewable energy projects on current and formerly contaminated land and mine sites. The plan focuses on providing useful resources for communities, developers, industry, state and local governments or anyone interested in reusing such sites for renewable energy development.

The tools on the USEPA website include mapping and fact sheets for sites where USEPA and the U.S. Department of Energy National Renewable Energy Lab are analyzing the potential for wind, solar, or small hydro development. The mapping tool provides USEPA’s site name and identification information, the program managing the site; a link to the site's cleanup status information; and specific acreage and renewable energy resource information. Another interactive map offers information on the various federal and state incentives available for such projects.

As part of the plan, USEPA will reach out to prospective developers and investors though meetings and webinars. The first such webinar is scheduled for October 21, 2010, at 3:00 pm EDT. It will provide an overview of how siting renewable energy on brownfields benefits communities and how local governments can strategically plan for renewable energy siting on contaminated sites. Speakers will discuss their experiences on siting renewable energy project on contaminated sites, including challenges and advantages associated with using contaminated land.

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Irv Freilich and Susanne Peticolas, Directors in Gibbons Real Property & Environmental Department, will be panelists at ABA’s upcoming Regional CLE Workshop on October 27, 2010, titled "The Road Ahead: The Obstacles and Pitfalls to New Jersey’s Implementation of the LSRP Program" at Seton Hall Law School. For more information or to register for the program, click here.

The program will feature interactive panels composed of nationally known environmental lawyers, in-house counsel and consultants who will discuss the details and implications of New Jersey’s Site Remediation Reform Act (SRRA), and in particular the newly minted Licensed Site Remediation Professional (LSRP) program. The impact of the LSRP program on environmental practitioners will be far reaching and extraordinary. From the manner in which environmental consultants will be retained and site investigations and clean-ups accomplished, to the ethical, work product and litigation considerations counsel will need to evaluate and address, the LSRP Program represents a sea-change in the way environmental counsel will practice their trade in the years to come.

The program has already dramatically changed the relationship between the environmental consultant and the client and raised the specter of frivolous suits from disgruntled clients. In addition, NJ Department of Environmental Protection has had to propose revisions to the SRRA interim rules relaxing certain remediation deadlines. These developments highlight the complex issues presented by the transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs and underscore the need to keep abreast of a rapidly developing area.

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The time period to renew an expired New Jersey alcoholic beverage license is rapidly coming to a close and will end on November 8, 2010. Under a provision of the Alcoholic Beverage Control Act, N.J.S.A. 33:1-1 et seq., enacted earlier this year, a person holding an expired license, which was not renewed within the five years prior to May 6, 2010, may file for renewal of that license provided that (i) the applicant pay all renewal fees for the years in which timely renewals were not filed, and (ii) the applicant’s failure to apply for a renewal during that period was due to circumstances beyond his control or due to other extraordinary circumstances.

Prior to the passage of this provision, an applicant holding an expired license could file for a renewal only for one year following the expiration of the license renewal period for the license. The provision in question, P.L. 2010, c. 14, § 1, is codified at N.J.S.A. 33:1-12.18.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.

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The New York Supreme Court, Appellate Term has just reaffirmed that a landlord, under certain circumstances, may evict a tenant utilizing classic “self help” and without court action.  In Sol De Ibiza, LLC v Panjo Realty, Inc. the landlord, after the tenant failed to comply with various rent demands, padlocked the door - which padlock the tenant then cut off - and which the landlord then replaced.  The Civil Court granted petitioner-tenant’s petition for restoration of possession and directed an assessment of damages pursuant to RPAPL Sect. 853, which essentially entitles someone who is ejected in a forcible or unlawful ejection to treble damages.  The Appellate Term reversed, ruling that this decision was premature, while affirming a NY landlord’s right to exercise self-help if:

• the subject lease specifically reserves the landlord’s right to re-enter upon non-payment. The court determined that the lease language in this case was acceptable for such a reservation,
• prior to reentry landlord serves a valid rent demand,
• reentry was effected “peaceably,” a term not defined in this case, and • tenant, in fact, is in default in its obligation to pay rent.

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It is difficult for a defendant to avoid a claim by invoking the doctrine of waiver, which requires proof of a clear, unequivocal act showing that the plaintiff deliberately intended to relinquish a known legal right. It is doubly difficult when the plaintiff is the State of New Jersey, against which the application of the doctrine is, in the words of a leading Supreme Court case, to be “most strictly limited.” But thanks to not just one, but two documents clearly showing such an intent -- including one from the deputy attorney general on the case -- a federal district judge recently held that the State had waived its right to seek natural resource damages at a site in Franklin Township.

 It Never Hurts to Ask

In New Jersey Department of Environmental Protection v. FMC Corporation, Civ. No. 01-0476 (D.N.J. Sept. 29,. 2010), District Judge Dennis M. Cavanaugh granted summary judgment in favor of FMC Corporation on a claim for natural resource damages (NRDs) asserted by the New Jersey Department of Environmental Protection (NJDEP) and the Administrator of the State’s Spill Compensation Fund. The site in question has been the subject of investigations, cleanup, lawsuits, and settlement negotiations going back to the 1980s. During one set of those settlement negotiations, FMC, which had already spent more than $6 million in cleanup costs, contacted the Attorney General’s office in an attempt to determine the full extent of its potential exposure at the site. The news from the State’s lawyers was good: according to a memorandum from the assessment coordinator at NJDEP’s Office of Natural Resource Restoration, NJDEP would not assess injuries to natural resources at the site because groundwater contamination did not extend beyond the site’s boundaries, and NJDEP policy then in effect was to exclude such groundwater contamination from NRD assessments.

As settlement negotiations continued, FMC in 2003 sought more information from the Attorney General’s office, including a copy of the NJDEP memorandum. In reply, the deputy attorney general provided the memorandum, which she described as “explaining why no natural resource damages are being assessed at this site. In the meantime, a new administration had taken office at the beginning of 2003. Under the new McGreevey administration, NJDEP policy changed, such that on-site groundwater contamination was no longer excluded from NRD assessments, at least in the context of settlement negotiations. That new policy was later memorialized in a September 2003 policy directive.

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All of us are intrigued by the concept of utilizing a clean, renewable energy source to generate abundant and cheap power for our homes and businesses. Some of us have even investigated installing a renewable energy system, but have come away disappointed due to onerous regulatory obstacles and the high cost associated with these installations. That is, unless you are looking into installing a solar energy power facility in New Jersey.

We explored the business case for solar energy in a recent article published by the Association of Corporate Counsel New Jersey Chapter. In addition, on August 19, 2010, Gibbons sponsored a solar energy conference in Woodbridge, NJ, attended by over 500 business owners, senior executives and industry representatives.

Douglas J. Janacek is a Director in the Gibbons Real Property and Environmental Department. Nancy A. Lottinville, Counsel to the Gibbons Real Property & Environmental Department, assisted in the preparation of this post.

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As discussed in a recent post, beaches have a way of generating difficult cases about when land-use regulations result in a compensable “taking” of property. A new opinion from the New Jersey Supreme Court reminds us that things can be just as complicated when the government takes beachfront property the old-fashioned way, via eminent domain. In City of Long Branch v. Liu, the Court held that the condemning municipality did not have to compensate the owner for land that was created by a government-funded beach replenishment project and appeared to expand the original parcel.

An Eminent Domain Case -- With a Twist

Under a redevelopment plan adopted in 1996, Long Branch sought to acquire an oceanfront parcel owned by Jui Yung Liu and Elizabeth Liu. The parties could not agree on a price, so in 2001 the city filed a complaint to take the property via eminent domain. The complaint used a property description from the Lius’ 1977 deed, which noted that the property extended to the mean high water mark.

So far, it’s a routine eminent domain action. But the Lius’ property -- or at least what they thought was their property -- had changed quite a bit in the intervening years. In the 1990s, the federal, state, and local governments had conducted a multi-million dollar beach replenishment program to protect shore communities. For two weeks, the Army Corps of Engineers dumped sand along the shoreline where the Luis’ property faced the Atlantic Ocean. As a result, dry sand now extended an additional 225 feet seaward of the mean high water mark described in the 1977 deed. In all, the project created more than two acres of dry sand. The Luis claimed title to the new land, and moved to amend the city’s complaint. Both the trial court and the Appellate Division rejected their request, and the Supreme Court granted certification to consider whether the Lius were entitled to compensation for the land created by the beach replenishment project.

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On October 4, 2010, the New Jersey Department of Environmental Protection (NJDEP) formally proposed revisions to the Site Remediation Reform Act’s (SRRA) interim rules. The revisions impact two important components of the interim rules: remediation deadlines and vapor intrusion investigations. These technical amendments are based upon stakeholder input and are intended to reduce the burden on the regulated community and New Jersey’s newly minted Licensed Site Remediation Professionals (LSRPs). The rule proposal appeared in the New Jersey Register on October 4, 2010 and can be viewed online. Comments can be submitted until December 3, 2010.

When adopting the SRRA, the New Jersey Legislature created a special enforcement mechanism called “direct oversight.” When a site, phase of the clean-up process or condition at the site warrants “direct oversight,” all of the key decisions - especially remedy selection - are made by NJDEP. In direct oversight the responsible party simply pays the bills - NJDEP makes the decisions. The SRRA also provides that when the responsible party misses a remediation milestone, then NJDEP must exercise direct oversight. N.J.S.A. 58:10C-27.

NJDEP’s pending rule proposal relaxes three important remediation milestones established by the interim rules. N.J.A.C. 7:26C-3.3.:

• the deadline for submitting preliminary assessment reports,
• the deadline for immediate environmental concern source control,
• and the deadline for installing free product removal technology at sites containing non-aqueous phase liquids, (generally to March 1, 2011 at the earliest).

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