Gibbons Law Alert
How can the New Jersey Department of Environmental Protection (NJDEP) be improved? The agency released two different perspectives on that question over the past few weeks: a “top-down” view in the form of a “Transformation Plan” for reforming NJDEP, and a “bottom-up” view in the form of a compilation of hundreds of complaints and suggestions from NJDEP employees.
It is difficult for a defendant to avoid a claim by invoking the doctrine of waiver, which requires proof of a clear, unequivocal act showing that the plaintiff deliberately intended to relinquish a known legal right. It is doubly difficult when the plaintiff is the State of New Jersey, against which the application of the doctrine is, in the words of a leading Supreme Court case, to be “most strictly limited.”
As discussed in a recent post, beaches have a way of generating difficult cases about when land-use regulations result in a compensable “taking” of property. A new opinion from the New Jersey Supreme Court reminds us that things can be just as complicated when the government takes beachfront property the old-fashioned way, via eminent domain.
Owners of land subject to the 2004 Highlands Water Protection and Planning Act (Highlands Act) who preserve their land under the Green Acres Program or the State Farmland Preservation Program will benefit from special appraisal rules for five more years, thanks to legislation signed into law by Governor Christie on September 9. Under the “dual appraisal” provision, which expired last year but has now been extended to 2014, landowners receive two appraisals — one based on current property value, and one based on pre-Highlands Act zoning and other restrictions — and the higher appraisal is used as the basis for negotiation with the State on the appropriate payment.
New Jersey’s Highlands Water Protection and Planning Act (Highlands Act), which created and granted substantial powers to a regional Council, has engendered significant controversy, especially with respect to the strict development restrictions it imposes within a statutorily defined preservation area. Certain redevelopment projects, however, are exempt from those restrictions, and a recent Appellate Division upheld the New Jersey Department of Environmental Protection’s (NJDEP) interpretation of key statutory provisions when it determined that a multi-purpose redevelopment project qualified for such an exemption.
“Beach nourishment” and “beach restoration” projects, where sand from other locations (often the ocean bottom) is dumped on a beach to retard erosion or to repair its effects, is expensive. It also raises complex issues of fairness and equity about who should pay for the projects and who should be compensated for their negative effects. In two decision handed down in June, the New Jersey and United States Supreme Courts grappled with another often controversial aspect of these projects: when can beachfront owners allege that the project has actually taken their property, triggering the requirement of “just compensation” found in the New Jersey constitution and the Fifth Amendment to the federal constitution?
Agreements for the sale of real property are commonly contingent upon the contract purchaser’s obtaining some sort of development approval. If the approval is not granted, the contract purchaser can walk away from the deal. But what if the landowner wants to challenge the denial? Does the landowner have a sufficient interest in the dispute to step into the contract purchaser’s shoes? Last month, the Appellate Division of the New Jersey Superior Court answered in the affirmative. In Campus Associates, L.L.C. v. Zoning Board of Adjustment of the Township of Hillsborough, No. A-0690-08T2, — N.J. Super. — (App. Div. June 4, 2010), the court held that a landowner can appeal the denial of a use variance that was sought by a contract purchaser, as long as the application depended on property-specific proofs, and not on factors unique to the applicant.
Without changing a single standard, NJDEP may have made it easier to comply with its many surface water, groundwater, drinking water, and soil remediation standards by compiling a useful on-line compendium of selected environmental standards. Standards can change, though, so the prudent developer, consultant, or attorney will check the New Jersey Administrative Code before making any decisions.
The passage in 2009 of the Site Remediation Reform Act (SRRA) introduced a great deal of uncertainty into the site cleanup process. The procedures, paperwork, and terminology of the site cleanup process have changed. NJDEP has developed a web page to help the public to stay abreast of all SRRA developments, including information such as the new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS Rules).
Since late June, when the House narrowly passed the American Clean Energy and Security Act of 2009, the loud and rancorous debate over health care may have obscured another critical issue being considered by Congress: climate change and the regulation of greenhouse gas emissions. Decisions made public on successive days in September by a federal appellate court and the U.S. Environmental Protection Agency (EPA), however, may go a long way toward making wide-ranging federal controls over greenhouse gas emissions a reality.