Real Property & Environmental Law Alert

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Transactional Real Estate, Development/Redevelopment & Environmental Law

Category Archives: Development/Redevelopment

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Feds Must Consider All Reasonable Alternatives in Endangered Species Analysis

Posted in Development/Redevelopment, Environmental & Green Issues
Recently, the D.C. Circuit threw out the United States Fish & Wildlife Service’s (“FWS”) approval of a conservation plan to reduce the impacts of a proposed wind turbine farm on endangered Indiana bats. In Union Neighbors United Inc. v. Jewell, et al., Docket No. 15-5147, the Court of Appeals held that FWS failed to consider all reasonable alternatives to Buckeye Wind LLC’s (“Buckeye”) plan to limit bat injuries and deaths resulting from encounters with the proposed turbines as required by the National Environmental Policy Act (“NEPA”).… Continue Reading

New York DEC Finalizes Definition of “Underutilized” Under Brownfield Cleanup Act Amendments

Posted in Development/Redevelopment
On July 29, 2016, the New York State Department of Environmental Conservation ("DEC") announced that it had finalized the definition of "underutilized" for purposes of the 2015 Brownfield Cleanup Act Amendments and eligibility for redevelopment tax credits. The final rule closely tracks DEC's March 9, 2016 proposed definition, which attracted numerous comments, mostly adverse, from members of the public and the regulated community.… Continue Reading

New Jersey’s Time of Application Rule Does Not Bar a Favorable Zoning Amendment

Posted in Development/Redevelopment
In a published decision, the New Jersey Appellate Division ruled on July 27 that the “time of application” rule, which mandates that development applications are governed by the regulations in effect at the time of submission, and was intended to protect applicants from negative zone changes while their applications were pending, does not apply to zone changes which benefit a project.… Continue Reading

N.J. Appellate Division Holds that Municipalities are not Obligated to Satisfy “Separate and Discrete” Gap Period Need for Affordable Housing

Posted in Development/Redevelopment
On July 11, 2016, in an interlocutory appeal, the Appellate Division reversed Judge Mark A. Troncone’s February 18, 2016 order, which had found, as a matter of law, that municipalities were obligated to provide realistic opportunities for the construction of affordable housing for the need that accumulated during the period from 1999-2016 (the “gap period”). In an opinion by Judge Fasciale, the Appellate Division held that municipalities were not required to discretely calculate or satisfy the housing obligations that accumulated during the gap period as part of a municipality’s “prospective need.” In the Appellate Division’s view, those who are living in dilapidated, overcrowded, or cost-burdened housing would be adequately reflected in present need calculations, and any further alterations to municipal obligations would require legislative or executive action. The opinion highlights what appears to be a distinction between the constitutional fair share housing obligation, which had been understood to accrue year after year according the Court’s decision in Mt. Laurel II, and the compliance obligations arising under the Fair Housing Act, which are limited only to satisfying the statutorily prescribed need.… Continue Reading

Plans for New Medical School Move Ahead as Hoffmann-La Roche Announces Completion of Purchase and Sale Agreement of its 116-Acre Campus

Posted in Development/Redevelopment, Real Estate, Transactional Real Estate & Leasing
As reported in today’s NJBIZ, Hoffmann-La Roche has completed the purchase and sale agreement of its 116-acre campus, located in Nutley and Clifton, NJ, to PB Nutclif I, an affiliate of Prism Capital Partners. Seton Hall University and Hackensack Meridian Health then entered into a long-term lease with the developer for the creation of a private medical school and clinical research center. Seton Hall will also relocate its College of Nursing and School of Health and Medical Sciences to this site.… Continue Reading

U.S. Fish and Wildlife Proposes Changes to Eagle Management Program

Posted in Development/Redevelopment, Environmental & Green Issues
On May 4, 2016, the United States Fish and Wildlife Service (“FWS”) proposed amendments to regulations governing its comprehensive eagle conservation and management program. The proposal follows a successful challenge by environmental groups to FWS’ prior attempt to change its eagle rules, which was tossed out by a federal judge in 2013. The proposed modifications include changes to the manner by which FWS issues permits allowing otherwise prohibited activities which may unintentionally injure or disturb golden and bald eagles.… Continue Reading

Governor Christie Vetoes Offshore Wind Bill

Posted in Development/Redevelopment, Environmental & Green Issues
Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.… Continue Reading

Appellate Division Grants Leave to Appeal to Affordable Housing Decision, While Trial Courts Continue Towards Trial and Compliance Hearings

Posted in Development/Redevelopment
On April 11, 2016, the Appellate Division issued an order granting a motion by the Township of Barnegat for leave to appeal a decision by the Hon. Mark A. Troncone, J.S.C., designated Mt. Laurel judge for Ocean County, and also granted a number of motions for other municipalities from outside of Ocean County to appear as amici curiae in the case. The order returns the question of methodology – a hotly contested issue – to the Appellate Division. The counties comprising Region 4 (Mercer, Monmouth, and Ocean counties) of the Council on Affordable Housing (“COAH”) were set to be among the first to hold trials regarding the methodology for determining the municipal fair share housing obligations of municipalities. The grant of leave to appeal in the Ocean County case will necessarily delay any trial in that vicinage until the resolution of the appeal. This post briefly reviews the trial court’s decision, and the potential impact the decision to grant leave to appeal may have on pending declaratory judgment cases.… Continue Reading

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

Posted in Development/Redevelopment, Environmental & Green Issues
In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.… Continue Reading

Proposed Definition of “Underutilized” for Brownfield Cleanup Act Amendments Draws Many Comments

Posted in Development/Redevelopment
Numerous organizations and individuals have submitted comments on the proposed definition of “underutilized” published by the New York State Department of Environmental Conservation (NYSDEC) on March 9, 2016, pursuant to the 2015 Brownfield Cleanup Act Amendments. The Amendments require NYSDEC to propose a definition for “underutilized,” one of the few remaining ways for New York City sites to qualify for tangible property tax credits under the State’s Brownfield Cleanup Program (BCP). As such, this definition is seen by many as crucial to the continued viability of the BCP as a cleanup mechanism for brownfield properties in New York City.… Continue Reading

Howard Geneslaw and Jason Tuvel to Speak at the 2016 Land Use Update

Posted in Development/Redevelopment
Howard D. Geneslaw, a Director in the firm’s Real Property & Environmental Department and Vice Chair of the Land Use Section of the New Jersey State Bar Association, will be participating, both as a moderator and speaker, at the upcoming 2016 Land Use Update on Wednesday, February 24, 2016 in West Orange, New Jersey. Jason R. Tuvel, also a Director in the firm’s Real Property & Environmental Department and a Director of the Land Use Section, will be speaking when the same program is presented next month on March 16, 2016 in Mount Laurel, New Jersey.… Continue Reading

NJ High Court Clarifies Standard for Revocation of Direct Access to State Highway from Commercial Property

Posted in Development/Redevelopment
In its recent decision in In Re Revocation of the Access of Block #613, the New Jersey Supreme Court clarified the standard governing the revocation of direct access from a State highway to a property used for commercial purposes under the State Highway Access Management Act and the State Highway Access Management Code. The case outlines the requisite procedure for revocation of a commercial property's direct access to a State highway by the New Jersey Department of Transportation (NJDOT).… Continue Reading

No Further Extensions of New Jersey’s Permit Extension Act

Posted in Development/Redevelopment
The state legislature took no action to further extend New Jersey’s Permit Extension Act (“PEA”) during the recently concluded legislative session, which means that permits and approvals extended by the PEA’s tolling period either have expired or will expire soon. Pursuant to the terms of the act, the expiration date for most approvals covered by the PEA are tolled through June 30, 2016, with certain approvals expiring before that date, making right now the time to evaluate projects approaching construction to determine which existing approvals were extended by the PEA, the exact expiration date of such approvals, and whether further extensions are available under other laws. After such an evaluation, developers and project managers can then determine whether approval rights can be fully vested prior to their expiration date and, if not, whether an extension, amendment, or renewal of the approval is required.… Continue Reading

Settlement Update on New Jersey Tax Court’s Closely-Watched AHS Hospital Decision

Posted in Development/Redevelopment
Several months ago, this blog reported on Judge Vito Bianco’s denial of Morristown Memorial Hospital’s (the “Hospital”) property tax appeal. While this was only a Tax Court decision, it was closely-watched because it had the potential to eviscerate the property tax exemption for modern integrated hospitals, and potentially for other nonprofit organizations with complicated corporate structures or relationships.… Continue Reading

New Jersey Appellate Court Rules Redeveloper Cannot Compel Amendments to Redevelopment Plan

Posted in Development/Redevelopment
Redevelopment agreements are the tool used to memorialize the respective obligations of the redeveloper and the municipality to effectuate a redevelopment project. Often, a concept plan has been agreed upon, but changes to the site-specific zoning embodied in the redevelopment plan are necessary in order for the project to advance. In an unpublished decision earlier this year, the New Jersey Superior Court, Appellate Division, ruled in Fieldstone Associates, L.P. v. Borough of Merchantville, A-1239-13T3, that the municipality cannot be contractually compelled to adopt such amendments.… Continue Reading

Jersey City Restriction on Chain Stores and Restaurants Could be Unconstitutional

Posted in Development/Redevelopment, Litigation
Jersey City, New Jersey’s second largest city, recently passed an ordinance that restricts “formula businesses” in certain neighborhoods. The ordinance defines a “formula business” as one which is “contractually obligated” to maintain certain “standardized characteristics” such as merchandise, menu items, design, signage, and trademarks. In other words, Jersey City is seeking to limit chain restaurants and stores from opening in certain city neighborhoods.… Continue Reading

New Jersey Supreme Court Decides 62-64 Main Street, L.L.C. v. City of Hackensack, Clarifies Definition of “Blight” in Context of Redevelopment

Posted in Development/Redevelopment
On March 23, 2015, in 62-64 Main Street, L.L.C. v. City of Hackensack, the New Jersey Supreme Court determined that property does not need to have a negative effect on surrounding properties in order to be deemed “blighted.” Prior to the Court’s decision in this case, it was unclear whether a negative effect on surrounding properties was a prerequisite to a finding of blight, or simply one way to establish it. Because the New Jersey constitution allows municipalities to exercise their powers of eminent domain to redevelop blighted property, the Court’s decision could encourage more municipalities to move forward with the condemnation of property for private redevelopment.… Continue Reading

NYSDEC Hears Comments on Proposed Definition of “Underutilized”

Posted in Development/Redevelopment, Environmental & Green Issues
On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an "underutilized" site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being "underutilized" is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.… Continue Reading

Gibbons Advises New Jersey Future 2015 Smart Growth Award Winners

Posted in Development/Redevelopment
New Jersey Future, a non-profit, non-partisan organization focused on the promotion of responsible land use policies, has named the Military Park renovation in Newark and 18 Park in Jersey City as two of its 2015 Smart Growth honorees. Gibbons P.C. played a significant role in both of these projects. The awards were given out on Thursday, June 4 at the annual awards gala.… Continue Reading
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