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

It is not uncommon in New Jersey for businesses to fight tooth and nail to prevent competitors from obtaining development approvals. This month, in In the Matter of the Issuance of Access Conforming Lot Permit No. A-17-N-N040-2007 by the New Jersey Department of Transportation for Block 136, Lots 2 and 3 in Mahwah Township, New Jersey, the Appellate Division dragged the New Jersey Department of Transportation (“NJDOT”) into the fight and provided objectors with another path to delay or even prevent a business competitor from moving into town.

Typically, objections are fought in front of the relevant municipal land use board and later in court. In the Mahwah case, a gas station along Route 17 objected to an application by Pilot to construct a competing service station and convenience store approximately 0.2 miles away on Route 17. In addition to objecting during the Zoning Board of Adjustment hearings, the objector filed a letter and traffic data with the NJDOT objecting to Pilot’s application for a major access permit and waiver for lot frontage pursuant to the State Highway Access Code.

The NJDOT rejected the objector’s submission on the basis that the State Highway Access Code does not allow direct public input and directed the objector to air its grievances during the Zoning Board of Adjustment hearings. Upon the grant of the access permit and waiver, the objector appealed the NJDOT’s decision to the Appellate Division.

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On November 13, 2010, Nancy Lottinville appeared on One on-One with Steve Adubato on his series on public television. As a featured guest, Ms. Lottinville discussed her background and experience throughout her career in all areas of land use, development, governmental permitting, and multiple aspects of transactional real estate law.

“Nancy has an impressive career representing national and regional retail, restaurant, office, and multifamily developers, as well nonprofits and local planning boards,” says Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “But her broader professional goals to support women at all levels both within our firm, and in the commercial real estate industry as a whole, make her an even more compelling interview subject.”

Produced by the Caucus Educational Corporation, One-on-One reaches more than 10 million households in six states (NJ, NY, CT, PA, DE, and MD). The program features the absorbing, real-life stories of the area’s notable business, political, academic, and creative innovators, highlighting their experiences and accomplishments in an engaging and relatable way. Host Steve Adubato relies on his broad knowledge and conversational, inquisitive interviewing style to inspire unexpected exchanges.

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Earlier this month, the New Jersey Appellate Division decided and approved for publication Cortesini v. Hamilton Township Planning Board, a case that addressed the issue of whether a developer must apply for a variance in connection with a pre-existing non-conforming condition created by a prior/non-appealable development approval. The Court’s answer was a resounding “no” based on the facts presented.

In Cortesini, the applicant, Wal-Mart Real Estate Business Trust, applied to the Hamilton Township Planning Board in 2009 for amended site plan approval along with associated bulk variances to renovate an existing Wal-Mart Store. The proposed development contemplated a 3.6% increase in area to the current 156,963 sq. ft. store and the addition of 46 parking spaces. There was a pre-existing non-conforming condition on the property.

In 2001, the initial developer of the shopping center had obtained subdivision approval for the development of the shopping center containing the Wal-Mart store. A year later, Wal-Mart successfully secured a site plan approval that authorized the construction of the Wal-Mart as currently configured. However, the initial approvals failed to identify the need for a parking area setback variance that was clearly required pursuant to the Township’s zoning ordinance.

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The New Jersey Department of Environmental Protection is seeking input from all interested stakeholders as it develops proposed revisions to three separate sets of regulations that govern site cleanups: the Administrative Requirements for the Remediation of Contaminated Sites (“ARRCS”) rules,which were drafted to implement the Site Remediation Reform Act; the regulations covering cleanups under the Industrial Site Recovery Act (“ISRA”); and the rules for cleanups involving underground storage tanks. NJDEP’s call for public input represents an unusual opportunity to affect the agency’s plans as the proposals are being drafted. Three members of the Gibbons Environmental Team have already published a detailed analysis of important issues raised by NJDEP’s working drafts.

The stakeholder process is designed to incorporate the views and concerns of important segments of the public into the redesign of the regulations to make them consistent with the SRRA-created Licensed Site Remedial Professional (“LSRP”) program by the statutory deadline of May 2012. NJDEP anticipates publishing a formal proposal for revising the regulations in May 2011.

A dedicated page on NJDEP’s website includes links to working drafts of the revisions, as well as instructions on how to submit comments. Comments must be submitted by January 14, 2011 in an e-mail to SRRA@dep.state.nj.us with a subject line that reads “Stakeholder Input.”

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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Institutional controls, regulatory limits on human activity at a site, go by many names. The Department of Defense uses the term “land use controls.” ASTM E2091-00 has elected to use the phase “activity and use limitations.” Traditional real estate lawyers often think in terms of “covenants” or “easements.” Here in New Jersey, the Site Remediation Program uses the term “Deed Notice,” while the Freshwater Wetlands Permit Program has adopted the term “Conservation Restriction or Easement,” N.J.A.C. 7:7A-1.4. Whatever name they go by, institutional controls are intended to regulate human behavior and are used to supplement environmental remediation efforts by reducing the risk of unintended exposure to residual contamination. As a result, institutional controls are critical to the redevelopment of contaminated real estate and cost-effective clean-ups.

There is an ongoing debate over the effectiveness of institutional controls. Regulators, responsible parties and environmental practitioners are increasingly aware of the costs and challenges of using institutional controls. EPA’s Office of Solid Waste and Emergency Response has recently issued a preliminary draft second in what is intended to be a series of guidance documents governing the use institutional controls. EPA is soliciting public comment on this interim guidance document.

EPA’s November 2010 Interim Final Draft is entitled “Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing Institutional Controls at Contaminated Sites.” This document outlines EPA policy regarding institutional controls. The guidance document also presents a discussion of long-term site “stewardship” and enforcement options. EPA, like its state counterparts, is increasing focused on enforcement issues.

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For the seventh year in a row, the Gibbons Real Property & Environmental Department exhibited at the International Council of Shopping Centers' ("ICSC") National Conference and Deal Making Idea Exchange in America's Hall II at the Hilton New York earlier this month.

The buzz at the show was optimistic this year, similar to the upbeat mood at the September PA/NJ/DE Idea Exchange in Philadelphia, with over 6,000 attendees and 340 exhibitors "deal making" throughout the Hilton New York and the Sheraton New York Towers & Hotel. Along with the six Gibbons attorneys, the show was also attended by shopping center owners, developers, managers, marketing specialists, investors, lenders, retailers, and other professionals.

Gibbons will be exhibiting at both the Philadelphia and New York shows again next year - we look forward to seeing you there!

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

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On Monday December 6, 2010, New Jersey’s first black bear hunt in five years opened. It lasted for six days, coinciding with the annual deer hunt. An attempt to enjoin the hunt filed by Animal Protection League of New Jersey, the Bear Education and Resource Group and two individuals was rejected on Friday by the New Jersey Appellate Division in a per curiam decision that found that the appellants failed to meet the legal requisites for a stay. An emergent application to the New Jersey Supreme Court on Saturday also was unsuccessful.

The New Jersey Department of Environmental Protection (“NJDEP”) estimates that the black bear population in northern New Jersey is around 3,400. The hunt was expected to reduce the population by 250-700 animals. On the first day of the hunt, 264 bears were taken, the largest one-day tally in the hunt’s history. By the end of the hunt, 589 bears had been harvested.

NJDEP determined that a controlled hunt was a necessary component of its Comprehensive Black Bear Management Policy, which was developed to manage the bear population and reduce bear-human conflict. According to the Division of Fish and Wildlife, between January 1 and July 20, 2010, bears have been responsible for one attack on a person, three unprovoked attacks on dogs, 26 livestock kills, 23 attempted home entries, 27 successful home entries, 3 vehicle entries, 74 vehicle strikes, 13 aggressive behavior incidents, 526 nuisance incidents and 301 garbage raids, as well as 548 sightings. In addition to a controlled hunt, the Policy incorporates education, the continuation of ongoing research and population monitoring, appropriate non-lethal control measures, and investigation of all viable population control methods.

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The Gibbons Real Property & Environmental Department will once again exhibit at the International Council of Shopping Centers (“ICSC”) National Conference & Deal Making Idea Exchange at the Hilton New York on December 6-7.

The Department’s booth will be in the same location as prior years, #490 in America’s Hall II. Stop by and meet with some of the Department’s six attorneys who will be attending. Show hours are Monday, December 6, from 9:00 am to 5:30 pm, and Tuesday, December 7, from 8:30 am to 4:00 pm.

In September, the Department exhibited at the ICSC’s PA/NJ/DE Idea Exchange on September 15-16, at the Pennsylvania Convention Center in Philadelphia. We reported that the attendance and mood had both improved over the year before. We are hopeful that the positive mood will continue.  See you in New York!

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

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