Category: Development/Redevelopment

Gibbons Director David J. Freeman Receives Distinguished Service Award From New York City Brownfield Partnership

David J. Freeman, a Director in the Environmental Group of Gibbons P.C., has been honored by the New York City Brownfield Partnership (NYCBP) as the 2021 recipient of the organization’s Distinguished Service Award. The Award promotes excellence in brownfield redevelopment each year by honoring an individual who has made a significant impact on brownfield redevelopment in New York City.

New York Appellate Court Allows Top Floors of Upper West Side Condo Building to Remain

The New York City development community was alarmed by a trial court decision in February of last year that would have required removal of the top floors of a 55-story condominium building under construction at 200 Amsterdam Avenue on the Upper West Side of Manhattan. On appeal, the Appellate Division, First Department, issued a decision in early March reversing the trial court, which means that, absent any further appeal, the building can be completed and the condominium units offered for sale. The case, In the Matter of Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2021 NY Slip Op. 01228 (“Amsterdam Avenue”), serves as a high-profile, high-stakes reminder of the importance of two well-settled principles of New York zoning law: Administrative agencies like planning and zoning boards, which are charged with administering technical regulations with which they have substantial experience and technical expertise, are entitled to substantial deference and cannot disregard past precedent without good reason, such as differences in facts or changed circumstances; A party seeking to overturn a permit or approval must avail itself of all opportunities to seek a stay that halts construction or risk having its case dismissed as moot, and a developer seeking to defeat an appeal can do so by taking the risk of diligently proceeding...

NJ’s New Economic Incentive Legislation Includes Supplement to Brownfields Program

The New Jersey Economic Recovery Act of 2020 (NJERA), recently signed into law by Governor Murphy, includes an important new tax incentive for Brownfields called the “Brownfields Redevelopment Incentive Program Act” (BRIPA),  included as Sections 9 through 19 in the act. BRIPA supplements the existing “Brownfield and Contaminated Site Remediation Act” (BCSRA), which provides funds for reimbursement of varying components of remediation costs at Brownfield sites based on certain eligibility criteria, including the Hazardous Discharge Site Remediation Fund and the Brownfield Site Reimbursement Fund. Under BRIPA, as under BCSRA, a “Brownfield site” is any commercial or industrial site that is “vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.” BRIPA further expands the definition of Brownfield sites to include sites where there is or suspected to be contaminated building materials. BRIPA takes an approach similar to that of the New York Brownfields Cleanup Program by awarding tax credits of up to the lesser of 40 percent of remediation costs or $4 million under redevelopment agreements entered into by the state and a developer. There is a cumulative cap of $50 million that can be awarded annually under BRIPA. Projects that are eligible for tax credits under BRIPA are those that are located at...

CREMA Provides the Framework for the Regulated Recreational Cannabis Industry in New Jersey, but Disincentivizes Businesses From Seeking to Achieve Certain Legislative Goals

In November 2020, New Jersey voters passed the referendum to add an amendment to the State Constitution for the legalization of recreational cannabis by a resounding margin of 2 to 1. The amendment went into effect as of January 1, 2021; however, implementation and the establishment of the legal recreational cannabis market requires further legislative and regulatory action. As the first step in this process, the State Assembly and Senate each passed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREMA”). CREMA is the result of tireless legislative negotiation that began well before the November 2020 vote. The end result includes provisions aimed at public policy and social justice considerations, and at creating a competitive business marketplace. For example, under CREMA, the Legislature takes effort to address the disproportionate negative impacts that cannabis prohibition has had on Black New Jerseyans and other minority communities. With the goal of promoting social equity and redressing the historical impact of unequal application of drug laws on minority communities, CREMA provides priority for license applications to businesses located in “impact zones,” which are defined as municipalities that have a population of 120,000 or more or that rank in the top 40 percent for cannabis-related arrests, and mandates that at least 70 percent of tax revenue on...

NJDEP Posts List of Approvals Extended by Permit Extension Act of 2020

The New Jersey Department of Environmental Protection (NJDEP), in its function as the repository for registering approval extensions under the Permit Extension Act of 2020 (“PEA2020”), codified at N.J.S.A. 40:55D-136.7, has posted the list of approvals which were registered by the October 8, 2020 deadline. There are actually two separate lists available from NJDEP, one consisting of permits issued by the NJDEP, and the other consisting of approvals issued by all other agencies. The second list encompasses a broad array of approvals including municipal and county planning board approvals, health department approvals, highway access permits, road opening permits, redevelopment agreements, soil conservation district certification, and a host of others. Both lists provide the name of the permittee, permitting agency, type of permit, and permit number. They are searchable by keyword. It appears that these lists are only inclusive of the approvals that have been granted extensions, and developers and permitted parties should review them carefully to confirm whether their approvals have been included. As reported previously, PEA2020 authorizes the extension of a wide variety of approvals, including, but not limited to, soil conservation district approvals, waterfront development permits, wetlands permits, CAFRA permits and center designations, septic approvals, municipal utility authority approvals, county and municipal planning board approvals, and a host of other municipal, county, regional,...

Permit Extensions: Looming Deadline and Best Practices

The period within which to register development approvals for tolling or extension under the Permit Extension Act of 2020 (“Act”) concludes on October 8, 2020. Permits and approvals which are not timely registered by that date may expire without receiving the benefit of tolling afforded by the Act. We have detailed both the Permit Extension Act of 2020 and the recently published notices from various state agencies on our website. While the language of the Act as adopted, and the accompanying notices from the various state agencies, are not fully consistent with respect to what approvals are required to be registered, we wanted to pass along two key suggestions regarding how to best take advantage of the Act: Register All Approvals. We suggest to err on the side of registering all approvals – this means not only State agency permits, but also municipal land use approvals, agreements for sewerage capacity, water permits, construction permits, plan endorsements under the State Planning Act, and any approval for permits related to any development application. While the statutory language seemed to suggest that it was only state level permitting that would be subject to registration, it appears that NJDEP will be serving as a database and repository for all approvals – not just those of state agencies – and...

Permits to Be Extended Under Permit Extension Act of 2020 Must Be Registered by October 8, 2020

We previously reported on the adoption of the Permit Extension Act of 2020, which provided a mechanism for tolling or extension of permits and approvals during the public health emergency associated with COVID-19, and extending those approvals for “at least six months beyond the conclusion” of the associated extension period. Under the Permit Extension Act of 2020, all approvals that are subject to tolling or extension were required to be registered “with the department” within 30 days of the publication of a notice in the New Jersey Register. That registration deadline has now been established as October 8, 2020. Regardless of whether your permit or approval expires in the next few months or late next year, it may be prudent to register now, particularly given the differences between the prior iterations of the Permit Extension Act and the present statutory language, and the lack of a clear end of the present public health emergency. The Department of Environmental Protection published a notice in the New Jersey Register on September 8, 2020, announcing that the registration period for approvals has begun. Notably, the notice provides that “[t]his registration requirement applies to specified permits, approvals, and deadlines from a broad range of State and local entities – not just the Department.” It is not clear under the...

Permit Extension Act of 2020 Alters Timing for Applications for Development, and Extends Certain Existing Approvals During COVID-19 Public Health Emergency

On July 1, 2020, Governor Murphy signed the Permit Extension Act of 2020, enacted as P.L. 2020, c. 53, a stand-alone piece of legislation modifying timelines for review of applications for development before the land use boards of the State of New Jersey and tolling existing development approvals that have been adversely affected by the COVID-19 public health emergency. This legislation ends a saga that saw the proposal of an amendment to the Permit Extension Act of 2008, which was enacted following the Great Recession; a conditional veto of that legislation; and the concurrence of both houses of the New Jersey legislature with the language of the conditional veto message. This new law will provide significant help to developers throughout New Jersey who were forced, whether by governmental order or economic infeasibility, to put projects on hold during the course of the present public health emergency. However, there are potential pitfalls of which developers should be aware, as set forth below, including a requirement that all state-level permits that developers wish to have extended be registered. The Permit Extension Act of 2020 provides as follows: Scope: Much like the original Permit Extension Act, this law serves to extend a wide variety of permits, including, but not limited to, soil conservation district approvals, waterfront development permits,...

New Jersey Publishes Formal Stringent Drinking Water Standards for PFOA and PFOS

On June 1, 2020, the New Jersey Department of Environmental Protection (DEP) officially published health-based drinking water standards for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). These chemicals have received serious attention from the environmental community in the last several years due to increasing science that has confirmed the harmful impact of PFOA/PFOS on human health and the environment. These new more stringent rules, published in the New Jersey Register, set maximum contaminant levels (MCLs) at: 14 parts per trillion for PFOA and 13 parts per trillion for PFOS. The DEP also added PFOA and PFOS to the state’s list of hazardous substances. Site remediation activities and regulated discharges to groundwater of PFOA and PFOS will now have to comply with these new standards. These new formal standards establish a regulatory framework that will provide consistency in remediation activities statewide. It is important to note that PFOA and PFOS are just two of potentially thousands of per- and polyfluoroalkyl substances (or PFAS). To date Vermont and New Hampshire are the only other two states to set MCLs for PFAS. New York is working on similar standards. New Jersey issued a standard of 13 parts per trillion for perfluorononanoic acid (PFNA) in 2018. The federal government has not yet established MCLs for PFAS. While there...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...