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

For the first time in 20 years, the regulations for accessible design under the Americans with Disabilities Act (ADA) have been revised. Compliance with the new ADA Standards for Accessible Design (ADA Standards) may be required by March 2012. These changes may have significant impact on existing and new leases.

The new regulations were enacted on July 23, 2010, and while businesses had the option to start complying with the new standards beginning in September of 2010, mandatory compliance is not required until March 15, 2012. The revamped rules include non-discrimination provisions that apply only to places of public accommodation, such as stores, restaurants, movie theatres and the like, and standards for accessible design that apply to all facilities. Compliance with the ADA Standards are likely to create the bigger concern for landlords.

Unlike building codes, compliance with the ADA Standards cannot be grandfathered. Although there are “safe harbors” for businesses and property owners of existing facilities, there are also exceptions to the safe harbors. Of particular concern for landlords is the removal of architectural barriers and which standards, 1991 or 2010, need to be met. Leases should be reviewed carefully to determine whether ADA compliance is the responsibility of the tenant or the landlord. There are tax incentives available for small businesses to assist in financing ADA compliance which could impact negotiations between landlord and tenant.

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Gibbons P.C. is proud to announce that several Real Property & Environmental Department (RPE) practice areas have achieved national and metropolitan rankings in the 2012 edition of Best Law Firms, published by U.S. News and Best Lawyers®. Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. In addition, seven RPE attorneys have been individually selected for inclusion in six different categories.

The firm’s Land Use & Zoning Law practice was nationally ranked in the third tier in its category. In addition, the Department achieved first-tier rankings for the Newark, New Jersey metropolitan region in five categories:

• Environmental Law
• Land Use & Zoning Law
• Litigation – Environmental
• Natural Resources Law
• Real Estate Law

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The Clean Water Act regulates the placement of fill into the “waters of the United States.” That term has come to include wetlands -- or at least some wetlands. The Supreme Court’s last attempt, in Rapanos v. United States, to clarify which wetlands fall within the statute’s coverage caused great confusion, as the five Justices who agreed on the judgment (a four-Justice plurality led by Justice Scalia, and Justice Kennedy, who concurred separately) generated two separate tests for jurisdiction. Which test should lower courts apply? In an opinion released on October 31, the Third Circuit said, “both” -- if the wetlands in question satisfy either Justice Scalia’s test or Justice Kennedy’s test, they fall within the statute’s reach.

Justice Scalia’s plurality opinion Rapanos, decided in 2006, 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.

In United States v. Donovan, the Third Circuit affirmed a district court summary judgment against Delaware landowner David Donovan, who had been fined $250,000 and ordered to remove 0.771 acres of fill that he had placed on his property without obtaining a permit from the Army Corps of Engineers. Donovan argued that the multiple opinions in Rapanos failed to provide a governing legal standard for Clean Water Act jurisdiction, and that therefore pre-Rapanos case law should govern. The Third Circuit disagreed, and, adopting the position taken by the First Circuit and the Eighth Circuit, held that the Corps of Engineers could assert jurisdiction if the wetlands on Donovan’s property met either test set forth in Rapanos. The Court further held that the government’s evidence indisputably showed that Donovan’s wetlands satisfied the “significant nexus” test, and thus did not have to decide whether there was any genuine issue as to whether they satisfied the Rapanos plurality’s test.

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In the next few weeks, responsible parties for some 12,000 known contaminated sites in New Jersey will be receiving a letter with a draft Remedial Priority Score (RPS) for their particular site compliments of the New Jersey Department of Environmental Protection (NJDEP). The NJDEP has not specified how the rankings will be used, although the RPS system has been described by the NJDEP as “a triage tool to sort sites for further consideration.”

Under the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 et seq., passed in May 2009, the NJDEP is required to establish a ranking system for active remediation sites based on risk to public health, safety and the environment, the length of time the site has been undergoing cleanup, economic impact, and other relevant factors. To that end, NJDEP designed the Remedial Priority Scoring system which uses modeling assumptions on data gathered from a number of databases on the 12,000 known contaminated sites. Certain sites are excluded from the RPS process, including homeowner sites, sites undergoing operations and maintenance monitoring, and unknown source cases.

The computerized process attempts to provide relative rankings of active sites using selected data from the Geographic Information System (GIS) tools, multiple geographic databases and layers, the New Jersey Environmental Management System (NJEMS), the Known Contaminated Sites (KCS) report, and groundwater sampling data. Ongoing development of the model will eventually incorporate contaminated soil data and corresponding pathways. All sites will receive a tiered ranking between one and five, with tier five representing the highest contamination risk.

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