Tagged: Land Use

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

New Jersey Files Six Lawsuits as Part of Its Environmental Justice Initiative

Last week, New Jersey Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced jointly the state’s filing of six environmental enforcement actions against alleged polluters in minority and low-income communities in various locations throughout the state. The filings are this administration’s latest action in its environmental justice initiative, as Gibbons has previously covered on this blog. The six lawsuits involve sites in Newark, East Orange, Camden, and two sites in Trenton. In these suits, the state brings claims under various New Jersey environmental statutes, including the Spill Compensation and Control Act, the Water Pollution Control Act, the Air Pollution Control Act, the Solid Waste Management Act, the Industrial Site Recovery Act, and the Brownfield and Contaminated Site Remediation Act. Per the joint press release, the lawsuits in Newark and Trenton “involve companies that released hazardous substances at their properties and refused to clean them up.” In Newark, the state seeks to require the defendants to investigate the extent of the contamination, to clean up the site, and to reimburse the state for over $500,000. For one of the Trenton sites, the state similarly seeks to compel the defendants to clean up the site and to reimburse the state for over $400,000. At the other Trenton site, the state...

U.S. Supreme Court Remands Clean Water Act Case to the Fourth Circuit for Further Consideration in Light of “Functional Equivalent” Test from County of Maui

The effects of the recent U.S. Supreme Court decision in County of Maui v. Hawaii Wildlife Fund have begun to ripple out. In County of Maui, the Court held that the Clean Water Act requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” The Court acknowledged the “difficulty with this approach” in dealing with the “middle instances,” and provided a non-exhaustive list of seven factors that may be considered in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. “Time and distance will be the most important factors in most cases, but not necessarily in every case,” the Court guided. In Kinder Morgan Energy v. Upstate Forever, a Clean Water Act case seeking certiorari of a decision from the Fourth Circuit, the Supreme Court followed County of Maui by issuing an Order granting certiorari, vacating the Fourth Circuit’s decision, and remanding the case to the Court of Appeals for “further consideration in light of County of Maui.” In Kinder Morgan Energy, two environmental groups argued that Kinder Morgan was illegally discharging pollutants into navigable waters without a permit under the Clean Water Act. Similar to the facts of the Maui case, the discharge by Kinder Morgan was alleged to...

SCOTUS Creates “Functional Equivalent” Test to Determine Whether Point Source Dischargers Are Subject to the Clean Water Act

The U.S. Supreme Court recently handed down a decision in the most prominent Clean Water Act (CWA) case since its 2006 plurality decision in Rapanos v. United States. In County of Maui v. Hawaii Wildlife Fund, the Court interpreted the landmark statute to require a permit where there is a “functional equivalent” of a direct discharge from a “point source” into “navigable waters.” The likely impact of this holding for the parties is to subject the County of Maui to the statute’s permitting requirements for its discharges of treated wastewater through wells to groundwater that eventually reach the ocean. Beyond the parties, environmental groups are likely to cheer this decision while the regulated community, and lower courts, will likely be wary of the Court’s multifactor test. The CWA prohibits the “addition” of any pollutant from a “point source” to “navigable waters” without a permit from the Environmental Protection Agency (EPA). The County of Maui came before the Court as the operator of a wastewater reclamation facility in Maui, Hawaii. That facility collects sewage, partially treats it, then pumps that water into four underground wells. The effluent then travels about a half mile through groundwater to the Pacific Ocean. For nearly five decades the facility operated in this manner with the knowledge of the EPA, and...

Relaxation of Notary Rules Allows Remote Notarization in New Jersey and New York

With some banks and municipal offices closed to walk-ins, non-essential employees working from home, and social distancing requirements in place, the ordinarily mundane task of having documents notarized has become much more challenging. The very act of taking an acknowledgment requires that the notary personally interact with the signatory, verify identity, and witness document execution. This, of course, is wholly inconsistent with the COVID-19 world in which we find ourselves. Although electronic (rather than pen and ink) notarization has become more common in many jurisdictions, few states permit online or webcam notarization where the person signing a document is not in the physical presence of the notary. As a result of COVID-19, the rules have been relaxed in New Jersey and New York in order to permit video notarization in some instances. New Jersey New Jersey is utilizing a legislative process to amend the Notaries Public Act of 1979 (the “Act”). A bill designated as A-3903 was signed into law on April 14, 2020, as P.L. 2020, ch. 26. It takes effect immediately and will remain in effect for the duration of the COVID-19 emergency as declared by the Governor in Executive Order 103. It provides that a notary appointed pursuant to the provisions of the Act or an officer authorized to take oaths, affirmations,...

New Jersey Issues Guidance to Assist Land Use Boards in Holding Electronic Meetings and Hearings

In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings. The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to...

New York City and State Close Down All “Non-Essential” Construction

As noted in our blog published on March 24, Governor Andrew Cuomo’s March 20, 2020 Executive Order 202.8 directed all “non-essential” businesses to implement remote work policies for 100% of their workforces, effective March 22 through April 19, 2020. The Empire State Development Corporation (ESDC) issued initial guidance on March 24, 2020, whereby it interpreted the Order to allow, as a category of “essential business,” “construction,” “including skilled trades such as electricians and plumbers,” and “for essential infrastructure or for emergency repairs and safety purposes.” ESDC updated and clarified its guidance on March 27, stating that “[a]ll non-essential construction must be shut down, except for emergency construction” and certain types of “essential construction.” Per the updated guidance, “emergency construction” includes “a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site.” “Essential construction” includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing and homeless shelters.” Even at emergency or essential construction sites, social distancing must be able to be maintained, or the site must shut down. Violations are punishable by fines of up to $10,000. On March 30, the New York City Office of Environmental Remediation (OER) and...

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the Board, acting on its own, voted to grant the variances with a reduction from 17...

Non-Residential Development Fees – How Much Do I Pay and When?

The Statewide Non-Residential Development Fee Act (the “Act”) has been in full effect for the past three years. Yet, there remains confusion as to how the fee is calculated and when it is required to be paid. There shouldn’t be. Before the Act, both residential and non-residential development fees were governed by the Council on Affordable Housing’s (“COAH”) regulations, and municipalities adopted a form ordinance provided by COAH. COAH’s regulations, for instance, permitted all development fees to be collected with up to 50% due at the issuance of a building permit and 50% due at the issuance of a certificate of occupancy. The same regulations permitted municipalities to collect the full fee at the issuance of a certificate of occupancy. The current Act makes it crystal clear that “the payment of non-residential development fees … shall be made prior to the issuance of a certificate of occupancy for each development.” The Act also lays out a process for preliminary and final assessments of fees, including a notice required upon issuance of a construction permit to the tax assessor to conduct an initial evaluation of the fee. Thus, any requirement for the payment of a development fee as a condition of the issuance of a construction permit would be inconsistent with the Act. The Act provides...

Governor Murphy Continues to Develop Climate Change Resiliency Strategy for New Jersey

Building on his vision to develop a Statewide Climate Change Resiliency Strategy launched last year by signing Executive Order 89, on January 27, 2020, Governor Murphy signed Executive Order 100 (EO 100), which the Governor’s office described in a press release as directing the “most sweeping set of climate change reforms in the nation.” The EO labels the reforms as the “Protecting Against Climate Threats” regulations, or “PACT.” EO 100 references the State’s Global Warming Response Act (“GWRA”), N.J.S.A. 26:2C-37, et seq., and the updated Energy Master Plan, which outlines seven “key strategies and includes an implementation plan that lays out next steps and timelines.” The seven key strategies are: 1) reducing energy consumption and emissions from the transportation sector; 2) accelerating deployment of renewable energy and distributed energy resources; 3) maximizing energy efficiency and conservation, and reducing peak demand; 4) reducing energy consumption and emissions from the building sector; 5) decarbonizing and modernizing New Jersey’s energy systems; 6) supporting community energy planning and action in underserved communities; and, 7) expanding the clean energy innovation economy. It is in furtherance of these “key strategies” that EO 100 directs DEP to draft and implement “the sweeping suite of climate change regulations.” Most prominently, these regulations will include the establishment of a greenhouse gas monitoring and reporting...