Real Property & Environmental Law Alert Blog

Join Us at the ICSC New York Deal Making Conference – December 11 & 12

Join Us at the ICSC New York Deal Making Conference – December 11 & 12

The Gibbons Real Property Department will once again exhibit at the upcoming International Council of Shopping Centers (ICSC) New York Deal Making Conference at the Jacob K. Javits Convention Center on December 11-12. Stop by our booth, #2411, to meet some of the Department’s attorneys who will be in attendance (Click here to view our booth location marked as the red circle). Deal Making hours are Wednesday, December 11, from 8:00 am to 5:00 pm, and Thursday, December 12, from 8:00 am to 3:00 pm. We look forward to seeing you there!

More Than Parking Tickets: Appellate Division Rules that New Jersey Municipal Courts Can Assess Civil Penalties for Spill Act Violations

More Than Parking Tickets: Appellate Division Rules that New Jersey Municipal Courts Can Assess Civil Penalties for Spill Act Violations

Municipal courts are typically called on to rule on such matters as parking violations and speeding tickets. Some statutes, however, give them jurisdiction over a surprising variety of actions. In its published opinion in State of New Jersey Department of Environmental Protection v. Alsol Corporation, the Appellate Division held that one powerful environmental law, the Spill Compensation and Control Act (Spill Act), grants municipal courts jurisdiction to assess civil penalties for violations of the statute, even where the department has not already gone through an administrative process to assess such penalties. DEP’s complaint against Alsol arose from an October 2016 oil spill at a property it owns in Milltown. According to factual assertions made by the New Jersey Department of Environmental Protection (NJDEP), the spill was the result of a contractor’s faulty demolition of three electrical transformers. Oil from the transformers, later determined to contain polychlorinated biphenyls (PCBs), spilled onto the surface and into a storm drain. The oil allegedly reached Farrington Lake and may have reached Mill Pond and Lawrence Brook, which a Department of Environmental Protection (DEP) Fish and Wildlife Officer closed to fishing. The complaint, filed in Milltown Municipal Court, did not allege a violation of the...

New Jersey Appellate Division Clarifies Spill Fund Lien Law &  Procedure

New Jersey Appellate Division Clarifies Spill Fund Lien Law & Procedure

In an unpublished opinion captioned In Re Spill Fund Lien, DJ No. 129570-02; 954 Route 202, the Appellate Division affirmed the final agency decision of the Spill Compensation Fund (Fund) holding that the lien filed against the property and revenues to recover remediation costs that the Fund expended in cleanup was appropriate under the New Jersey Spill Act (Spill Act). The property owner, Branch 2002 LLC (Branch), had purchased a gas station from a previous owner who was ordered by the New Jersey Department of Environmental Protection (NJDEP) to conduct a remedial investigation and remove or treat contaminated soil from leaking underground storage tanks at the property. Ultimately, the previous owner did not conduct the required remediation, so the NJDEP oversaw remediation of the property using Fund resources. The property was later sold to Branch, with the prior owner’s insurance company indemnifying all subsequent owners for any liability arising out of the prior owner’s discharge. The Fund Administrator filed the initial lien on the property for expenditures and commitments incurred by the Fund in 2002, and then later amended this lien in 2015 to reflect additional costs expended and requested that the Superior Court Clerk enter the addresses of both...

Gibbons Real Property Department Attorney Publishes in New Jersey Law Journal

Gibbons Real Property Department Attorney Publishes in New Jersey Law Journal

Cameron W. MacLeod, an Associate in the firm’s Real Property Department, authored an article, “Finding the Outer Edges of ‘Good Faith’ in ‘Mt. Laurel’ Litigation” in this week’s New Jersey Law Journal. An excerpt from the article can be found below. To view the full article, click here. In 2015, the court directed that municipalities revise their housing elements and fair share plans “with good faith” and with “reasonable speed.” In re: N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 33 (2015). Now, four and a half years later, the question of what constitutes “good faith” in these constitutional compliance cases is paramount, as the trial courts are now faced with whether a municipality’s housing element and fair share plan are consistent with the Mount Laurel obligations. The recent trial court decision in In re Englewood Cliffs, as well as the 2016 decision from Judge Wolfson in In the Matter of the Application of South Brunswick, both demonstrate what steps are necessary to establish “good faith” in these cases. Of the 300-plus declaratory judgment actions commenced in the wake of the Supreme Court’s decision in In re: N.J.A.C. 5:96 & 5:97, 221 N.J. 1 (2015), many have now settled, or are...

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

Governor Murphy Signs Executive Order Addressing Climate Change Resiliency for New Jersey

As storms like Superstorm Sandy continue to grow more devastating and frequent, communities, governments, businesses, and industries of all sizes and varieties must face the challenge of adapting to a changing climate. October 29, 2019 marked the seventh anniversary of Sandy hitting New Jersey. Governor Murphy marked this occasion by signing Executive Order 89, which calls on the Department of Environmental Protection (DEP) to establish a Statewide Climate Change Resilience Strategy, among other initiatives related to climate change adaptation. “New Jersey is extremely vulnerable to the impacts of sea-level rise and global warming, and [this] Executive Order outlines a bold and comprehensive set of actions to ensure that our communities and infrastructure are more resilient against future storms,” said Government Murphy about the signing. The preamble to the Executive Order notes that New Jersey is especially vulnerable to the impacts of climate change as a coastal state. Picking up on this administration’s Environmental Justice efforts, the Order acknowledges that minority and low-income communities are disproportionately affected by the impacts of climate change. Climate change of course is an issue that also impacts all communities, including the business community, industry, and government. The preamble also notes that “studies show that each...

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

Gibbons Director David J. Freeman to Serve as Co-Chair for NYS-NYC Bar Program

Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.

Expect the Unexpected: New Jersey Appellate Division Rules That Language of Pre-SRRA Contract Requires Remediation Under New Rules

Expect the Unexpected: New Jersey Appellate Division Rules That Language of Pre-SRRA Contract Requires Remediation Under New Rules

It is universally recognized that the 2009 Site Remediation Reform Act (SRRA) completely overhauled the process of site remediation in New Jersey. Less obvious, perhaps, was how the new statute could affect contractual cleanup obligations in agreements that predate SRRA’s enactment. In 89 Water Street Associates LLC v. Reilly, the Appellate Division held that the language of a purchase-and-sale agreement from 2004 required the seller to meet all of the requirements of the later-enacted statute, even if the cleanup takes much longer, and costs much more, than originally envisioned. The saga begins in 2004, when the plaintiff entered into a contract to purchase an industrial property in Bridgeton from the defendant’s predecessors in interest. The owner had already been through one remediation process, having obtained a “no further action” letter (NFA) from the New Jersey Department of Environmental Protection (NJDEP) under the Industrial Site Recovery Act (ISRA) (then known as the Environmental Cleanup Responsibility Act). The owner leased the site to a company (NRI) that he controlled in 1984. Fast forward twenty years, when the parties entered into a contract to transfer the property for $475,000. The agreement set a closing date, which could be extended by six months, but...

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

NJ District Court Leaves Plaintiff Without Course of Relief Under CERCLA

In Stahl v. Bauer Auto, Inc., the U.S. District Court for the District of New Jersey handed down a decision that may be troubling for parties seeking to recover environmental cleanup costs under the Comprehensive Environmental Responsive Compensation and Liability Act (CERCLA). By way of background, CERCLA generally provides a private cause of action to plaintiffs in two circumstances. The first falls under section 107(a), which allows a plaintiff to seek recovery of response costs that it has incurred from other potentially responsible parties. The second falls under section 113(f), which allows a plaintiff that is or was the defendant of a cost recovery claim, or that has resolved its liability with the Environmental Protection Agency (EPA) under a judicially approved settlement, to seek contribution from other potentially responsible parties. Generally, a party that has incurred or will incur costs under CERCLA falls under one or both of these two categories. However, the N.J. District Court in Stahl held that there is at least one scenario where a plaintiff does not fall into either of these two categories and therefore has no claim under CERCLA. The factual history in the Stahl matter is long and complex. In short, the underlying...

Gibbons to Exhibit at Upcoming ICSC PA/NJ/DE Conference & Deal Making

Gibbons to Exhibit at Upcoming ICSC PA/NJ/DE Conference & Deal Making

The Gibbons Real Property Department will once again exhibit at the International Council of Shopping Centers (ICSC) PA/NJ/DE Conference & Deal Making at the Pennsylvania Convention Center on September 12. Stop by our booth, #319, and meet with some of the Department’s attorneys who will be attending. Deal Making hours are Thursday, September 12, from 8:30 am to 4:00 pm. The Conference provides an opportunity for real estate professionals (shopping center owners, developers, managers, marketing specialists, investors, lenders, retailers, etc.) to network and focus on getting deals done. We look forward to seeing you there! Douglas J. Janacek, Chair of the Gibbons Real Property Department, authored this post.

New Jersey Enacts Changes to Landmark 2009 Site Remediation Reform Act

New Jersey Enacts Changes to Landmark 2009 Site Remediation Reform Act

In 2009, in the face of a significant backlog of sites that were stuck in the Department of Environmental Protection (DEP) pipeline, the New Jersey Legislature dramatically changed the process of site remediation in the Garden State with the enactment of the Site Remediation Reform Act (SRRA). The SRRA partially outsourced DEP’s review role by authorizing “private” oversight of cleanups by Licensed Site Remediation Professionals (LSRPs). On August 23, 2019, Governor Murphy signed new legislation that made further adjustments to the changes wrought by the SRRA. The legislation (L. 2019, c. 263), which sailed through both legislative chambers without a single opposing vote, makes a number of changes to the LSRP program, as well as other changes affecting parties responsible for conducting remediation projects. Amendments Affecting LSRPs Removal of unoccupied structures from list of areas that must be addressed as an “immediate environmental concern.” Expansion of LSRP duties to report immediate environmental concerns and previously unreported discharges. A slight relaxation of licensing requirements for individuals who may have temporarily left the work force for personal reasons. Clarification of prior acts and punishments that will disqualify a person from obtaining an LSRP license. Tightening of LSRPs’ oversight responsibilities to ensure that...