Gibbons Law Alert

Gibbons Law Alert

Tagged: Due Diligence

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

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Posted in Development/Redevelopment / Environmental and Green Issues

On September 27, 2018

One underused provision in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) makes Environmental Protection Agency (EPA) Superfund Special Accounts available for reimbursement to Bona Fide Prospective Purchasers (BFPPs). This provision has received greater scrutiny by EPA following the creation of the Superfund Task Force (“Task Force”) in May 2017, and BFPPs should carefully consider the potential benefits that Superfund Special Accounts might provide. The Task Force includes senior representatives from different EPA Regional Offices with responsibility for Superfund policy and enforcement. EPA created the Task Force to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The full report is available here. Goal number two in the report is to reinvigorate responsible party cleanup and reuse of Superfund sites. One of the specific recommendations relating to this goal is to maximize the use of special accounts to facilitate site cleanup and/or redevelopment. EPA has begun to implement this recommendation with the issuance of a March 27, 2018 memorandum to its Regional Offices entitled: “Guidance on Disbursement of Funds from EPA Special Accounts to Entities Performing CERCLA Response Actions.” The full memorandum is available here. On July 23, 2018, EPA issued an update to its Task Force report in which it stated...

Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

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Posted in Development/Redevelopment / Environmental and Green Issues

On June 18, 2018

The Environmental Protection Agency (“EPA”) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 23 on June 13, 2018. Recommendation 23 focuses on tools designed to assist parties interested in redevelopment of contaminated sites. The EPA created the Task Force in May 2017, which is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders. Phil Page from EPA’s Office of Site Remediation Enforcement, Policy, and Program Evaluation Division presented the listening session for Recommendation 23. The slide deck from the session is available here. Recommendation 23 aims to deliver an efficient and effective process to identify site-specific liability issues, to identify best manage practices to quickly respond to third-party concerns regarding liability, and to create a national team of redevelopment experts. Recommendation 23 discusses the use of Liability Issue Identification Tools (LIITs) that include site history and other relevant information, information regarding interested parties...

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 7, 2016

A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.

Newark Requires Developers to Identify Environmental Impacts of Projects

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Posted in Development/Redevelopment / Environmental and Green Issues

On July 29, 2016

Recently, the City of Newark (the “City”) approved Ordinance No. 16-0803, a/k/a the Environmental Justice and Cumulative Impacts Ordinance, (the “Ordinance”), which may significantly impact the process for seeking development approvals from the City. The Ordinance purports to advance the policy of promoting environmental justice, environmental stewardship, and sustainable economic development in the City. More specifically, the Ordinance seeks to mitigate the disproportionate impact of pollution and environmental degradation on the health of minority and socioeconomically disadvantaged communities, otherwise known as “environmental injustice.” As the Ordinance notes, the prevalence of environmentally overburdened, underserved, and economically distressed communities near industrial centers and other areas afflicted by poor environmental quality is well documented.

From Ink to Occupancy – Part Three: Land Use Due Diligence – The Title Myth

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Posted in Transactional Real Estate and Leasing

On August 13, 2013

As the third installment in the series, “From Ink to Occupancy, A Game Plan for a Successful Real Estate Project,” stemming from the Gibbons Women’s Initiative Seminar Series held in May, this blog addresses the question of whether title review alone is sufficient for purposes of ascertaining what restrictions are in place for a property being acquired. The simple answer is NO. All too often commercial buyers anxious to close on a property take shortcuts and limit their due diligence to title review as opposed to conducting land use due diligence. This blog explains why, particularly in New Jersey, it is critical to conduct land use and zoning due diligence in addition to title review prior to the acquisition of a property, so that you can be fully aware of any potential restrictions impacting the property.

N.J. Appellate Court Clarifies That Owners of Pre-1993 Property Must Prove Due Diligence During Acquisition Under the Innocent Purchaser Defense Codified in the Spill Act

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Posted in Environmental and Green Issues

On November 14, 2012

On October 29, 2012, as Hurricane Sandy began its assault on the State, a New Jersey Appellate Court in New Jersey School Developments Authority v. Marcantuone created its own “storm” in Spill Act jurisprudence by holding that purchasers of contaminated property prior to September 14, 1993, can be liable under the Spill Act if they failed to conduct due diligence prior to purchase. In reaching this conclusion, the Appellate Division held that the long-standing 2001 decision in White Oak Funding, Inc. v. Winning had been superseded, in part, by the 2001 amendments to the Spill Act (“2001 Amendments”), which had been adopted a few weeks before the White Oak decision and became effective a week after the decision.

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

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Posted in Development/Redevelopment / Environmental and Green Issues / Transactional Real Estate and Leasing

On March 12, 2012

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.

The Permit Extension Act May Keep Extending

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Posted in Development/Redevelopment / Environmental and Green Issues / Transactional Real Estate and Leasing

On January 24, 2012

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.

Proposed Legislation Will Require Shopping Center Developments in NJ to Provide Charging Stations for Electric Vehicles

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Posted in Development/Redevelopment / Environmental and Green Issues / Transactional Real Estate and Leasing

On March 30, 2011

One of the problems with electric cars (EVs) is – what do you do when the battery runs down? Currently there are 500 charging stations in the United States and 400 of them are in California. In an attempt to address the dead battery problem and encourage purchase of EVs, on March 21, 2011, the New Jersey State Senate introduced Bill S2784 (the “Bill”) which requires owners of shopping center developments to include charging stations. Under the Bill, owners of a “shopping center development” must equip not less than five (5%) percent of the parking spaces for the shopping center development with electric vehicle charging stations. Moreover, such stations must be available for use during the hours of operation of the shopping center development.

A New Jersey Statute That May Go a Long Way On Your Next Solar or Wind Project!

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Posted in Development/Redevelopment / Environmental and Green Issues

On January 19, 2011

Experienced New Jersey developers and land use attorneys understand the challenges that face an applicant when the proposed use is not expressly permitted in the municipality’s zoning district wherethe subject property is located. The challenge is only more complicated if the proposed use involves novel or unfamiliar technology such as renewable energy. However, in New Jersey, the government has been proactive in welcoming renewable energy projects through grants and legislation, making New Jersey definitely the place to be if you want to develop property geared towards the creation of a renewable energy facility powered by solar or wind.

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