Development/Redevelopment - Real Property & Environmental Law Alert

The New Philadelphia Zoning Code - Coming Soon to a Property Near You

Alfred R. Fuscaldo — Wed, 16 May 2012 08:31:22 -0500

Ready or not, the revised Philadelphia Zoning Code becomes effective on August 22, 2012. This massive and comprehensive overhaul of the Zoning Code, its first since 1962, required over four years to complete. It was coordinated by the thirty-one member Philadelphia Zoning Code Commission, and is the culmination of countless hours of work by the ZCC, including scores of regular meetings, informational meetings, community meetings, meetings with stakeholder groups and public hearings. The changes from the current Code are many and significant, with important modifications to base and overlay zoning districts, use categories, area and bulk requirements, floor area ratio calculations, parking standards and, perhaps most meaningful, the administrative process. We will be examining these and other major revisions in this blog on a regular basis, both as the Code’s implementation date approaches as well as after it is in effect.

Alfred R. Fuscaldo is a Director in the Gibbons Real Property & Environmental Department.

Gibbons Real Property & Environmental Lawyers Listed as Leaders in Their Fields

Gibbons P.C. — Thu, 05 Apr 2012 09:34:54 -0500

Twelve lawyers in the Gibbons Real Property & Environmental Department were listed by New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars as leaders in their fields. In addition, Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, was listed as a top 100 attorney in New Jersey. Overall, 69 lawyers in the firm were featured in these two publications.

The following members of the department were listed in the 2012 issue of Super Lawyers:

Russell B. Bershad, Real Estate, Co-Chair of the Gibbons Real Property & Environmental Department
Irvin M. Freilich, Environmental Litigation
Howard Geneslaw, Land Use/Zoning
Douglas J. Janacek, Land Use/Zoning, Co-Chair of the Gibbons Real Property & Environmental Department
John H. Klock, Construction/Surety
Susanne Peticolas, Environmental

Those listed in the Rising Stars section were:

Michael Miceli, Land Use/Zoning
Sandro G. Ocasio, Environmental Litigation
Uzoamaka N. Okoye, Business Litigation
Jennifer M. Porter, Land Use/Zoning
Jennifer P. Smith, Real Estate
Jason R. Tuvel, Land Use/Zoning

The Extension of the Permit Extension Act is on the Move, To Be Reviewed Today By Assembly Appropriations Committee

Jason R. Tuvel — Mon, 12 Mar 2012 15:15:44 -0500

About two months ago, several NJ Legislators, including State Senator Paul Sarlo (Bergen/Passaic) and Assemblyman Ronald Dancer, proposed bills that would amend the 2008 “Permit Extension Act.” Designed to give developers breathing room in the sluggish economy by extending the validity of development approvals, Proposed Bill S743 (the “Bill” or “S743”) is gaining traction and is moving through the necessary legislative committees. On March 5, 2012, S743 passed by a vote of 4-0 by the Senate Budget and Appropriations Committee. The Bill is scheduled to go before the Assembly Appropriations Committee on March 12, 2012.

Under the current version of the Permit Extension Act, the expiration of all “approvals” that were granted during the “extension period” as defined in the statute have been tolled through December 31, 2012. The “extension period” is currently defined as “the period beginning January 1, 2007 and continuing through December 31, 2012.” S743 proposes that the definition of the “extension period” be changed so that it runs through December 31, 2014. Therefore, based on the 6-month tolling provision currently in the Permit Extension Act, approvals received during the extension period could be extended as far out as June 30, 2015. It should be noted that A337 proposed to extend the “extension period” through December 31, 2015. However, A337 has not gained the same head of steam as S743.

S743 as amended includes language to make it clear that as it pertains to Statewide planning areas, the definition of “extension area” shall remain in effect until June 30, 2013, or until such later time as the State Planning Commission revises and readopts New Jersey’s State Strategic Plan and adopts regulations to refine this definition. Further, all underlying municipal, county, and State permits or approvals within the Pinelands Area are extended pursuant to the “Pinelands Protection Act,” N.J.S.A. 13:18A-1 et seq.

]]>The definition of “approvals” under the Permit Extension Act covers most permits issued by State rule or regulation, including, preliminary and final approvals for development applications under the New Jersey Municipal Land Use Law. S743 proposes that the definition of “approvals” be amended to include any “agreement with a municipality, county, municipal authority, sewerage authority, or other governmental authority for the use or reservation of sewerage capacity.”

S743 appears to be the bill that may amend the Permit Extension Act to help developers that need to wait a little longer for the economy to bounce back to save projects for which they have spent significant funds in obtaining approvals for development.

Jason R. Tuvel is an Associate in the Gibbons Real Property & Environmental Law Department.

The Permit Extension Act May Keep Extending

Jason R. Tuvel — Tue, 24 Jan 2012 09:09:54 -0500

Apparently concerned that the economy may not be recovering rapidly enough, the 215th New Jersey Legislature now convened, introduced a new bill (A337) on January 10, 2012, by Assemblyman Ronald S. Dancer of District 12, to change the definition of the “extension period” under the Permit Extension Act so that it runs through December 31, 2015. Therefore, based on the 6-month tolling provision currently in the Permit Extension Act, approvals received for development applications during the extension period could be extended as far out as June 30, 2016. Bill A337 has been referred to the Assembly Housing and Local Government Committee.

In 2008, as the economy was sliding into recession, the New Jersey Legislature passed the “Permit Extension Act,” which tolled the expiration of all development approvals that were granted during the “extension period” as defined in the statute. The intent was to preserve the benefit of permits until the economy improved. The “extension period” is currently defined as “the period beginning January 1, 2007 and continuing through December 31, 2012.” The definition of “approvals” under the Permit Extension Act covers most permits issued by State rule or regulation, including, preliminary and final approvals for development applications under the New Jersey Municipal Land Use Law.

If signed into law, Bill A337 could provide developers with an opportunity to wait a little longer for the economy to turn around in order to build projects that have received approvals and are considered dormant at the present time.

Jason R. Tuvel is an Associate in the Gibbons Real Property & Environmental Department.

Gibbons to Exhibit at ICSC New York National Conference & Deal Making on Monday and Tuesday

Gibbons P.C. — Fri, 02 Dec 2011 12:13:00 -0500

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 5-6.

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

We look forward to seeing you there!

Gibbons Real Property & Environmental Department Attains National and Metropolitan Rankings in 2012 Best Lawyers

Gibbons P.C. — Tue, 29 Nov 2011 12:46:11 -0500

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

]]>Because Best Lawyers is based on an exhaustive peer-review survey in which more than 41,000 leading attorneys cast almost 3.9 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel has called Best Lawyers “the most respected referral list of attorneys in practice.”

The RPE attorneys who earned individual rankings in the most recent edition of Best Lawyers® rankings are:

Russell B. Bershad (Department Co-Chair)

Real Estate

Peter J. Carton

Real Estate

Shepard A. Federgreen

Real Estate

Irvin M. Freilich

Litigation – Environmental

Douglas J. Janacek (Department Co-Chair)

Land Use & Zoning

John H. Klock

Environmental
Litigation – Environmental

Susanne Peticolas

Environmental
Litigation – Environmental

Nicole E. Taplin Joins Gibbons Real Property & Environmental Department

Gibbons P.C. — Mon, 03 Oct 2011 15:22:37 -0500

Gibbons is pleased to announce that Nicole E. Taplin, Esq. has joined the firm as an Associate in the Gibbons Real Property & Environmental Department. Nicole concentrates her practice on commercial real estate transactions including acquisitions, dispositions, financings and leasing matters.

Nicole received her J.D. from the University of Miami School of Law and her B.A., in economics and philosophy, from Emory University. Admitted to practice in the States of New Jersey and Florida, she represents clients in various aspects of commercial real estate, including the negotiation, documentation and closing of the sale, purchase and development of vacant land, office buildings, apartment buildings and complex mixed-use projects. She also has significant experience representing owners and developers in the structuring, creation and operation of residential, commercial, mixed-use and hotel condominiums, homeowners’ associations and planned communities.

Prior to joining Gibbons, Nicole worked at Greenberg Traurig, LLP in the Real Estate Department of their Miami office for several years and later operated her own law firm focusing on real estate transactions.

“Beyond exceptional legal skills, Nicole comes to us with several years experience running her own law firm, which we believe will greatly inform her legal practice. Like our clients, she has been a hands-on business owner and operator which will provide highly relevant insight and perspective as she addresses the varied real estate needs of our clients,” states Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department.

ICSC Philadelphia Dealmaking is Upcoming - New Date Scheduled

Howard D. Geneslaw — Wed, 07 Sep 2011 10:27:11 -0500

The International Council of Shopping Centers (ICSC) annual PA/NJ/DE Idea Exchange is coming up soon. Although the show usually is held in mid-September, this year it has been pushed back to October 12-13. As in the past, the show will be held at the Pennsylvania Convention Center and will provide an opportunity for real estate professionals to network and focus on getting deals done.

Gibbons P.C. will once again exhibit at the show. We expect to have at least six attorneys from the firm’s Real Estate Development and Transactional Real Estate practice groups in attendance to meet with clients, prospective clients and consultants and discuss their permitting needs. We will be in Booth #1023. Please stop by and visit us.

Registration information is available on ICSC’s website.

* Image created by Matt Banks - freedigitalphotos.net.

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

COAH Fees - Some Certainty in an Uncertain World

Douglas J. Janacek — Thu, 25 Aug 2011 15:29:00 -0500

While much of the uncertainty regarding affordable housing requirements in NJ remains, the questions involving the applicability and future of the 2.5% nonresidential development fee were answered yesterday. Acting Governor Kim Guadagno signed into law legislation that reestablishes the exemption from the fee for eligible projects. Perhaps the most broadly applicable exemption provides that projects which obtain preliminary or final site plan approval prior to July 1, 2013 are not subject to the development fee provided that building permits are issued by December 31, 2015.

The prior exemption from the fee expired July 1, 2010. The new legislation also provides for the reimbursement of fees paid subsequent to July 1, 2010, unless already spent by the municipality in connection with an affordable housing development. A developer must seek such reimbursement within 120 days of the effective date of the bill.

“With the economy still very much in flux, the suspension of the non-residential development fee will assist New Jersey’s non-residential real estate to get back on track, produce the jobs, taxable revenue and ratables this state desperately needs,” said New Jersey Department of Community Affairs Commissioner Lori Grifa, who oversees the State’s affordable housing development efforts.

For the full text of the legislation, click here.

* Photo courtesy of FreeFoto.com.

Douglas J. Janacek Co-Chairs the Gibbons Real Property & Environmental Department.

New Jersey Releases Sensible Lease Process for State Lands

LexBlog — Mon, 22 Aug 2011 08:31:13 -0500

On August 18, 2011, DEP Commissioner Bob Martin and DOT Commissioner James Simpson released a set of guidelines to revamp and apply consistency to New Jersey’s land leasing process for State Lands. A panel of ten State Agencies was convened to analyze the current lease policies and compile a Lease Valuation Report that offers recommendations on leases for Tidelands; Linear Corridor Projects (other than Tidelands); Publicly Bid, Market-Based and Nominal Fee leases; Telecommunications Towers and Antennas, Aquaculture, and leases Related to Transportation Corridors. The guidelines will be adopted by all State agencies, with most of the guidelines implemented immediately.

The panel reported an honest and critical view of the current system for valuing certain types of leases labeling it simply as “broken.” The panel noted that some fee schedules are terribly outdated and that certain rules and statutes prevent the maximization of compensation to the State for the use of its land.

The new guidelines serve two public purposes: 1) to ensure that the State and its Citizens receive fair compensation for the use of State land and 2) to reduce the environmental impact of those that require use of State lands for private projects.

]]>One of the changes is the elimination of perpetual term leases or easements for Tideland and Linear projects as well as a switch from a parcel-by-parcel negotiation and appraisal method to a flat square footage-based rate. As a point of perspective, the DEP alone owns 800,000 acres of fish and wildlife habitats and parks often traversed by utility lines. A switch to square footage-based rates both increases the revenue generated from a utility intent on developing on State property while at the same time compels them to use as little of the land as possible.

Leases will also have built-in annual adjustments of at least 2.5% thereby forcing lessees to accommodate for inflation. Another practical shift was to allocate more revenue generated from the leasing system back to the program or agency responsible for managing the leases.

Undoubtedly, the new guidelines will affect developers of offshore wind generation projects particularly in light of the Offshore Wind Economic Development Act, a bill that was recently passed to foster development of this type of green energy.

According to Bob Martin “The State’s process for valuing leases was long overdue for a major overhaul. This is our opportunity to bring this system up to date, to provide more predictability for business and to get the best deals and most fair compensation for the people of New Jersey.”

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

NJDEP Proposes New Rules for Site Cleanups

Susanne Peticolas — Tue, 16 Aug 2011 08:38:37 -0500

On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

The proposal includes major amendments, repeals and new rules intended to fully implement the new LSRP oversight remediation paradigm. The proposed Final Rules provide for the following:

Amending the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rules, the Underground Storage Tank (UST) rules and the Industrial Site Remediation Act (ISRA) Rules to remove all provisions related to the phase-in period;
Recodifying all administrative requirements from the ISRA Rules and UST rules to the ARRCS rules;
Adding mandatory timeframes for completion of remedial investigation and implementation of remedial action;
Repealing and replacing the current Technical Requirements with new performance-based Technical Requirements, intended to allow more flexibility in addressing contamination and potential exposure pathways. Many of the existing Technical Requirements will be recast as a new series of technical guidance documents providing direction on how to achieve the performance-based goals;
Amending the Discharges of Petroleum and Other Hazardous Substances rules to require compliance with both a facility’s discharge cleanup and removal plan and the ARRCs rules; and
Reformatting text where needed to make the rules easier to understand, to correct typographical and grammatical errors, and to update cross-references.

]]>According to NJDEP Commissioner Bob Martin,

It is a priority of the Christie Administration to clean the more than 16,000 contaminated sites across the State. This is an important step to help us more quickly and efficiently achieve that important goal. It will benefit public health and the environment, and will make underutilized properties available more quickly for redevelopment, benefiting economic growth.

The proposed rules were developed with the input of interested stakeholders. A public hearing on the proposed rules is scheduled for September 13 at 9 am in the first floor public hearing room at the DEP building, 401 East State Street, Trenton. NJDEP will accept written comments until October 14, addressed to Janis Hoagland, NJDEP, Office of Legal Affairs, Mail Code 401-041L, PO Box 402, 401 East State Street, 4th Floor, Trenton, NJ 08625-0402, ATTN: DEP Docket No. 12-11-07. The transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs presents complex issues for the department and the regulated community. Thus it is important for the regulated community to analyze the proposed rules and take advantage of NJDEP’s efforts to respond to stakeholder comments.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

Court Overrules DEP, Finds Developer Was Entitled to Exemption From Highlands Act

Paul M. Hauge — Wed, 10 Aug 2011 10:02:40 -0500

The New Jersey Appellate Division delivered a rebuke to the state’s Department of Environmental Protection (DEP) on August 1, finding that DEP’s Commissioner ignored undisputed evidence and made critical legal errors in holding that two development projects did not qualify for an exemption from the strict requirements of the Highlands Water Protection and Planning Act. The court’s decision in Lakeside Manor v. State of New Jersey Department of Environmental Protection reversed the Commissioner’s decision, finding that the developer had satisfied all statutory requirements for the exemption.

The statute, which was enacted in 2004, contains an exemption from its regulatory provisions for major projects that had received at least one of a specified list of land use approvals and at least one of a specified list of DEP permits by March 29, 2004. Jacinto Rodriguez, the president and owner of two development entities, obtained such approvals for both projects well before the deadline: subdivision and site plan approvals in 1999, and DEP permits for sewer lines in 2000. Based on these and other approvals, Rodriguez commenced construction of the projects.

The projects were not yet complete when the statute came into effect, so Rodriguez filed a combined application with DEP for a “Highlands Applicability Determination” for the two projects. DEP initially denied the application, citing doubts about whether the approvals were still in effect, but Rodriguez sought an adjudicatory hearing, and an Administrative Law Judge (ALJ), in his recommended decision, concluded that the projects qualified for the exemption. DEP’s Commissioner, however, rejected the ALJ’s recommendation, and determined that the projects were not eligible for the exemption. Both entities appealed the final decision to the Appellate Division.

]]>The Court found unequivocally that the Commissioner lacked any basis for denying the exemption. With respect to the land use approvals, the Court noted that the Commissioner had overlooked both the stipulation of DEP’s counsel that the approvals remained valid, and clear evidence that the approvals were in fact effective as of the cut-off date. As for the Commissioner’s finding that the DEP sewer permits were no longer valid, the Court criticized both the legal conclusions and the factual findings of the Commissioner. The issue here was whether the development entities’ failure to comply with certain conditions of the permits (obtaining a mapping revision or waiver for wetlands from EPA) rendered the approvals, as the Commissioner had found, “null and void.” Not so, said the Appellate Division. While violation of a permit condition may be grounds for its revocation, revocation cannot occur without a proper proceeding, and may not even be the appropriate remedy for the violation. Moreover, even revocation does not mean the permit ceased to exist as of the date of the violation. The Commissioner, said the Court, could not do an end-run around these protections by simply declaring the permits null and void. Finally, the record evidence clearly showed that revocation of the permits was not warranted; DEP’s own staff had recognized that construction authorized by the sewer permits did not encroach on any EPA-regulated wetlands. In short, the Commissioner was wrong on the law and on the facts.

As previously covered in this blog, the Highlands Act continues to generate judicial opinions about its legality and its implementation, as well as new legislative developments. The Lakeside Manor decision may stand as a warning to future Commissioners that reviewing courts will scrutinize their decisions closely, even where the decision appears to give effect to the statute’s protective purposes.

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

Electric Vehicles - Charging Ahead in New Jersey

Susanne Peticolas — Tue, 09 Aug 2011 08:16:55 -0500

In early 2011, several bills were introduced to encourage the installation of Electric Vehicle (EV) charging stations. Senator Greenstein introduced Senate bill 2603, in January, which would require the New Jersey Turnpike Authority and the South Jersey Turnpike Authority to provide EV charging stations at the service areas along the toll roads, allocating 5% of the parking spaces to EV stations. The bill was reported out of the Senate Environment and Energy Committee on February 14. In March, another bill, S2784, also introduced by Senator Greenstein, would require new shopping center developments to allocate 5% of the parking spaces to EV charging stations. Both of these bills have been sitting since the Spring. Nonetheless, even in the absence of legislative mandates, EV stations have been popping up in NJ and NY. One of the newest ones announced is in Avalon, NJ.

Touted as the first EV charging station at the Jersey shore, Avalon opened its 24 hour charging station on August 5 in front of its public safety building. Under a public-private arrangement with U-Go Stations, the firm has built and will maintain the charging station and pay the town a percentage of the revenue generated. At the moment, there is not much competition. A search of EV charging stations within 150 miles of Newark, revealed 73 charging stations, two of them in Newark itself and the majority of them in Manhattan and Connecticut. Many of the locations are public parking lots, anticipating the future needs of their customers. Others are colleges and universities. In Connecticut, a number of Whole Foods markets have EV charging stations.

It is unclear exactly who is using these charging stations now. The first battery electric car, the Nissan Leaf, was introduced in December 2010, although other major manufacturers have announced the development of EVs. Moreover, the number of EVs is likely to increase because of new fuel efficiency standards announced requiring cars and trucks to meet the equivalent of 54 mph by 2025.

]]>Recently, Nissan announced that it was developing a system for the Leaf to power households from its battery. Just think, in the future you can run to Whole Foods in your Leaf for a quart of milk and some extra electricity to run the household.

Susanne Peticolas is a Director in the Real Property & Environmental Department.

NJICLE Holds its Annual Environmental Law Section Forum

LexBlog — Tue, 02 Aug 2011 09:18:23 -0500

On the weekend of June 24-26, 2011, the New Jersey Institute of Continuing Legal Education (“NJICLE”) in cooperation with the New Jersey State Bar Association (“NJSBA”), and New Jersey Corporate Counsel Association, held its annual Environmental Law Section Forum Weekend (“the Forum”). Taking place in Avalon, New Jersey, the Forum featured three days of seminars covering various hot-button environmental topics including, Funding for Remediating Sites, Vapor Intrusion, the LSRP Program, Non-Governmental Organizations’ Perspectives on Issues and Resolutions, the well-known NJDEP v. Occidental case also referred to as the Lower Passaic River litigation, Climate Change, and rounded out the weekend with two programs on Ethical Issues including Alternative Fee Arrangements and Multi-Party Settlements.

David Brooks of Gibbons P.C. was the moderator and a panelist for the Vapor Intrusion presentation, an issue that has received increased attention in recent years from both US EPA and New Jersey. Other speakers at the Forum included not only legal practitioners but the New Jersey Department of Environmental Protection, Non-Profit Organizations, and Private Sector Companies. Jeannie Fox, President of the New Jersey Board of Public Utilities gave a keynote speech during the Forum focusing on solar issues in New Jersey.

As a testament to the increased interest in environmental topics as well as the historical success of the Forum, program attendance increased over last year. Attendees earned 11.4 Continuing Legal Education credits including several highly sought after ethics/professionalism credits.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

National Association of Women Lawyers Confers Outstanding Member Award on Nancy Lottinville

Gibbons P.C. — Thu, 28 Jul 2011 13:35:21 -0500

On Thursday, July 21, 2011, Nancy A. Lottinville, Esq., Counsel to Gibbons P.C.’s Newark based Real Property & Environmental Department was awarded the Virginia S. Mueller Outstanding Member Award by the National Association of Women Lawyers, the first national bar association for women established in 1899. Ms. Lottinville, along with six other attorneys chosen from NAWL’s nationwide membership, accepted the award at NAWL’s Annual Meeting held at the Waldorf Astoria Hotel in New York City. NAWL presents the Outstanding Member Award to NAWL members for exemplary contributions to NAWL. Ms. Lottinville’s contributions include several years of service on multiple committees including the 2011 Co-Chair of the Annual Meeting Logistics Committee, as well as Program Committee member for the 2010 New Jersey NAWL Night of Giving and the 2011 New Jersey Supreme Court Appellate Advocacy Program.

Ms. Lottinville is the Co-Chair of the Women’s Initiative Community Outreach Committee at Gibbons. Her practice focuses on real estate development and redevelopment, land use permitting and commercial real estate transactions for developers of shopping centers, retail stores, banks, franchisors and mixed commercial - residential developments, as well extensive land use due diligence investigations for regional and national investors in a variety of real estate development projects.

]]>Others honored at NAWL’s Annual Meeting include: Brooksley Born, who received the Public Service Award; Susan Blount, who accepted the President’s Award on behalf of Prudential Financial Inc. Legal Department; Judge Harold Baer of the United States District Court for the Southern District of New York and Marc Firestone , General Counsel of Kraft Foods who each received the NAWL Lead by Example Award; and Michele Coleman Mayes who received the M. Ashley Dickerson Award for the promotion of diversity in the legal profession. NAWL’s most prestigious award, the Arabella Babb Mansfield Award - named for the first woman admitted to a state bar in the United States - was presented to Jamie Gorelick, one of the longest serving Deputy Attorney’s General of the United States, a former general counsel to the Departments of Defense and Energy, a former president of the Washington D.C. Bar and current Co-Chair of the ABA Commission on Legal Ethics.

Ms. Lottinville's colleague, Luis Diaz, Esq., a Director and Chief Diversity Officer at Gibbons, participated in an afternoon CLE program panel which focused on overcoming unconscious bias. Gibbons is also represented within NAWL by Kristin Sostowski, who is a Director in Gibbons Employment & Labor Law Department. Kristen was sworn in as a new member of NAWL’s Executive Board at the NAWL Annual Meeting. Christine Amalfe, Gibbons Employment & Labor Law Department Chair, is also a member of the Board of the NAWL Foundation.

Gibbons Recognized as a Leading Firm by Chambers USA

Gibbons P.C. — Thu, 21 Jul 2011 10:43:24 -0500

The 2011 edition of the Chambers USA Guide to America’s Leading Lawyers for Business features 10 Gibbons practice areas and 18 individual attorneys ranked in the top tiers. The firm has appeared in the New Jersey section of the Chambers guide since its inception, but the 2011 version includes the highest total number of firm practices and attorneys to achieve the distinction of a Chambers ranking.

“It is a great accomplishment in and of itself to achieve a Chambers ranking, but the addition of new attorneys to the rankings, and the upward mobility within the rankings, are even more impressive,” says Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. “What that says is that Gibbons does not rest on its laurels, that the firm and our attorneys are constantly striving to provide ever more exceptional legal and client service.”

Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research. Chambers and client testimonials, excerpted from this year’s guide, highlight the Gibbons Real Property & Environmental Department that ranked in the guide for New Jersey:

]]>Environmental: Sources confirm that there is little beyond the capabilities of this team, which has in-depth expertise in litigation, regulatory concerns and real estate transactions affected by environmental issues. “A well-managed and responsive practice that seeks to provide the best possible representation in an affordable and pragmatic manner.”

Real Estate: Gibbons offers a broad selection of real estate services. “They are able to provide a deep well of resources, good bench strength and a rapid service.”

In addition, the following members of the Group were among the 18 individual Gibbons attorneys that received glowing reviews in the guide’s individual rankings:

Russell B. Bershad, Real Estate: Market sources consider Russell Bershad to be “easy to deal with, accessible and well connected within the business community. “He is hugely admired for his skillful handling of real estate financing, leases and transactions.”

Irvin M. Freilich, Environmental: Irvin Freilich has a wealth of experience in cost recovery and environmental litigation actions. His arrival at the firm added “a welcome layer of depth to the capabilities of the group.”

John H. Klock, Environmental: John Klock possesses a strong construction background that lends itself well to his site remediation work. Clients pay tribute to his “fantastic intellect and skillfulness in meeting our needs.”

Edward F. McTiernan, Environmental: Edward McTiernan oversees much of the team's work in his capacity as practice leader and is felt to be “indispensable in dealing with the very largest of projects.”

Susanne Peticolas, Environmental: Susanne Peticolas wins the acclaim of interviewees as a result of her “strategic, cost-conscious approach” and “practical engagement” with clients' concerns.

One Month After RECON -- The Outlook for the Second Half of 2011

Howard D. Geneslaw — Fri, 01 Jul 2011 09:19:50 -0500

This week marks both the one-month mark since the International Council of Shopping Centers’ (ICSC) annual RECON conference, as well as the end of the first half of 2011. RECON attendance surpassed 30,000 attendees for the first time since 2008, but still remains substantially off attendance levels reached several years ago. Although there was a fair amount of activity at this year’s show, particularly in the retail area on the second floor of South Hall, impressions of the climate for getting deals done were mixed, much like the economic indicators which have been circulating in recent months. Nevertheless, cautious optimism seems to be a fairly common theme in the retail sector for the remainder of 2011, and somewhat more enthusiastic optimism for 2012 and beyond.

In many communities, agendas remain light at land use boards, so there is space available for new applications for development as the market improves. Meanwhile, we can look forward to the upcoming ICSC Idea Exchange in Philadelphia on October 11-13 (note that these dates are several weeks later than usual), and the National Conference and Dealmaking in New York on December 5-6. Gibbons will be exhibiting at both shows. Please stop by our booth and visit us.

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

EPA to Announce the Possibility of Adding Vapor Intrusion as a Component to the Hazard Ranking System

Sandro G. Ocasio — Tue, 21 Jun 2011 09:21:32 -0500

On Monday, January 3, 2011, the Environmental Protection Agency published in the Federal Register, 76 Fed. Reg. 5,370 (Jan. 31, 2011), a Notice of Opportunity for Public Input on the Potential Addition of Vapor Intrusion Component to the Hazard Ranking System (the “HRS”). Should this proposal become a rule it would add another contamination pathway to analyze in connection with listing sites on the National Priorities List (the “NPL”).

The HRS is the principal tool used by EPA to determine which contaminated sites to place on the NPL. Under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which was enacted in 1980 and amended in 1986 by the Superfund Amendments and Reauthorization Act (“SARA”), EPA was required to develop a mechanism to identify sites posing the most serious and immediate threat to the environment or human health and create the list of those sites, constituting the NPL. The HRS was developed to handle that directive.

The HRS is a numerical system that takes into account four potential contamination pathways: 1) groundwater migration; 2) surface water migration; 3) soil exposure; and 4) air migration. During the preliminary assessment and site inspection phase of a site remediation, these four pathways are evaluated using three categories: 1) likelihood that a site has released or has the potential to release hazardous substances into the environment; 2) characteristics of the waste; and 3) people or sensitive environments affected by the release. A score is assigned to each pathway based on this analysis and a formula is employed to determine an overall score, which ranges from 0 to 100. A site with a score of 28.50 or more is eligible to be placed on the NPL.

]]>Vapor intrusion is the product of subsurface contamination entering into overlying structures which then are released into the structure in the form of vapor. This creates a threat to individuals inhabiting the structure who may inhale or ingest the contaminant. Currently, vapor intrusion is not a pathway of concern under the HRS. However, in May 2010, the Government Accountability Office (the “GAO”) issued a report entitled “EPA’s Estimated Costs to Remediate Existing Sites Exceed Current Funding Levels, and More Sites are Expected to Be Added to the National Priorities List.” In it, the GAO concluded that there is the potential for unacceptable human exposure to contamination if vapor intrusion is not addressed through the HRS. The GAO recognizes that sites that possess vapor intrusion contamination may be placed on the NPL due to other pathways. However, the report notes that there are contaminated sites that do not qualify for the NPL but would if vapor intrusion factored into the scoring.

EPA engaged in public outreach regarding this topic and held several listening sessions to facilitate public participation. The public comment period closed on April 16, 2011. EPA received about 60 comment letters in response to the EPA announcement. The vast majority of the respondents favor adding vapor intrusion to the HRS as a benefit to the public health. These include United States Senator for New Jersey, Robert Menendez, and the New Jersey Department of Environmental Protection, as well as professors, attorneys, community groups, and others. The Utility Solid Waste Activities Group (“USWAG”), an association of over 100 utilities, energy companies and associations, and utility operating companies take the position that the addition of a vapor intrusion pathway to the HRS is unnecessary. USWAG believes, among other things, that vapor intrusion sites will be eligible for placement on the NPL based on already existing pathways under the HRS. Furthermore, USWAG contends that the addition of a vapor intrusion component will impose significant costs on the Superfund program and would not lead to quicker site remediation.

EPA has reviewed the feedback and expects to issue a Notice of Proposed Rulemaking by January 2012.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

New Jersey Program to Fund Brownfield Clean Ups Closed Temporarily

Sandro G. Ocasio — Wed, 08 Jun 2011 14:12:37 -0500

The Brownfield Reimbursement Program (the “Program”), a New Jersey State initiative designed to reimburse developers up to 75% of costs incurred to remediate a brownfield site, has run out of money and is temporarily shut down. This development arrives on the heels of a recent New Jersey Department of Environmental Protection (“NJDEP”) announcement that, effective May 3, 2011, applications to the Underground Storage Tank Fund, a similar initiative to help homeowners remove USTs, will not be reviewed or processed due to insufficient funds.

Effectuated under the Brownfields and Contaminated Site Remediation Act of 1998, the Program was available to any party that is not liable under the Spill Compensation and Control Act N.J.S.A.58:10-23.11g. Funding for reimbursement under the Program was derived from tax revenues and appears to be a victim of the general budget crisis.

]]>This announcement will no doubt stifle future remediation and development of New Jersey’s many brownfield sites for some time. Even if the program gets back on track, NJDEP will be forced to deal with a backlog of applications. According to Irene Kropp, NJDEP Deputy Commissioner, there are currently $71 million worth of Program applications that have not yet been processed. Those already in the queue must be processed prior to the review of any new submissions.

For more information on brownfields generally, please visit NJDEP’s brownfields website.

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Russell Bershad to Moderate Panel at ScheinMedia's 5th Annual New Jersey Real Estate Conference

Gibbons P.C. — Fri, 13 May 2011 13:05:22 -0500

On Thursday, June 9, 2011, Russell Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will moderate a panel, "State of the Market: Drill down on all facets of development, finance, law and economic development" at ScheinMedia's 5th Annual New Jersey Real Estate Conference. The New Jersey Real Estate Conference has become the business standard for the state's most influential professionals from the real estate, finance, legal, and governmental communities.

This half-day conference will be held at the Harborside Financial Center - Atrium between Plazas II and III, in Jersey City, New Jersey from 2:30 - 6:30 pm.

As a Real Property & Environmental Law Alert valued reader, you will receive a 20% registration discount for this conference. Please click here to register and enter the code GPCNJREC to receive the discount!