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Governor Christie's Affordable Housing Plan In an announcement made on May 13, 2010, Governor Chris Christie outlined a plan for affordable housing that will abolish the 25 year old Council on Affordable Housing and transfer control for housing plans to local authorities, with review by the Department of Community Affairs ("DCA"). According to Acting DCA Commissioner Lori Grifa, "Unfortunately, the Council on Affordable Housing has often times been more burden than benefit to the point that New Jersey as a whole has fallen far short of its affordable housing goals ... The Governor's new affordable housing plan is a fresh approach that gives more control and flexibility to local governments while limiting state involvement. Ultimately, this plan will result in more affordable housing units being built in communities across the state." [click here for the governor's press release]. EPA Announces Award of Brownfields Grants On April 19, EPA announced awards of a total of nearly $80 million in grants to communities across the country to support the assessment, cleanup, and redevelopment of brownfield sites. Twelve of the grants, totalling $2.3 million, will go to New Jersey communities, including Camden, Jersey City, Newark, and Trenton. Assembly Bill Would Bar New Jersey Agencies From Exceeding Federal Standards in Rulemaking A bill introduced on March 8, 2010, by Assemblyman John J. Burchizelli (D-Salem/Cumberland/Gloucester) and voted out of the Assembly Regulatory Oversight and Gaming Committee would prohibit all State agencies from adopting -- or even proposing -- regulatory standards tighter than those imposed by the federal government, unless such action is specifically authorized by State law. The measure, Assembly Bill No. 2486, would greatly affect environmental regulation, where federal law often sets nationally applicable requirements but does not preempt State requirements that go beyond the federal "floor." The bill does not define the key term "specifically authorized by State law." It would not apply to regulations in effect on the date of its enactment, or to the readoption of such regulations in the future. NJ Assembly Passes "Time of Application" Bill On March 15, 2010, the New Jersey Assembly passed A-437, the "Time of Application" bill, by a vote of 52-15. The bill, which takes effect one year following enactment, provides that those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development, and any decision made with regard to that application for development. A-437 now heads to the Governor's desk. The tables were turned in a case decided by the New York Court of Appeals on February 18 ... Court Assesses Right to Easement of Third Parties Without an Interest in the Dominent Estate In a rare move, an Appellate Court in New Jersey recently published a decision regarding interpretation of an access easement ... Construction Projects and Compliance with New Stormwater Rules On February 1, 2010 all construction projects that are over one acre in size must comply with the United States Environmental Protection Agency rules that were published on December 1, 2009. Acquiring Distressed Debt: Anatomy of A Mortgage Acquisition Transaction By all accounts, banks and other lenders are holding enormous amounts - several trillion dollars - of commercial mortgages that are nonperforming, under-performing or approaching maturity with dim prospects for refinancing. The Licensed Site Remediation Professional: Friend or Foe? November 3 marked the launching of the Licensed Site Remediation Professional ("LSRP") program in earnest. New York City Increases Penalties for Illegal Dumping - 3/10/10 On March 3 the City Council of New York approved legislation designed to deter illegal dumping into the city's waterways. The measure increases the maximum penalty for illegally dumping such materials as dirt, sludge, acid, or any other "refuse matters" from $250 to $10,000 for a first violation and $20,000 for subsequent violations. The text of the new legislation is available here. Advocacy Group Files Challenge to Governor's COAH Executive Order - 2/18/10 The Fair Share Housing Center filed a suit on February 17, 2010 challenging Governor Christie's Executive Order halting the actions of the Council on Affordable Housing. [Click here Bergen Record news article.] Executive Order on Council on Affordable Housing (COAH) and S-1, Legislation to abolish COAH - 2/11/10 On February 9, 2010, Governor Chris Christie issued an Executive Order stopping all work for ninety (90) days on the processing of applications for substantive certification or implementation of the Third Round regulations by the Council on Affordable Housing (COAH). The Executive Order also creates a five-member Housing Opportunity Task Force which is tasked with producing a public report with analysis and recommendations regarding the current COAH rules within 90 days. [Click here for a copy of the Executive Order.] Lesniak Announces Hearing Date for COAH Reform Legislation - 1/28/10 Senator Raymond J. Lesniak announced that on Monday, February 1st the Senate Economic Growth Committee, which he chairs, will begin hearing testimony on his Bill S-1, co-sponsored by Senator Bateman. S-1 would abolish the Council on Affordable Housing (COAH) and establish a streamlined and simple process to comply with NJ Supreme Court mandates that require every municipality maintain a fair share of low- and moderate-income housing. Determining What Standards Apply to Your Site Just Got Easier - 1/28/10 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. The searchable compendium is easy to find here. Standards can change, though, so the prudent developer, consultant, or attorney will check the New Jersey Administrative Code before making any decisions. Keeping Up With SRRA Developments - 1/27/10 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. For example, the new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS Rules) are posted here. Governor Christie's Department of Environmental Protection Transition Subcommittee Issued Final Report - 1/26/10 Governor Christie's Department of Environmental Protection Transition Subcommittee issued its Final Report on January 15, 2010. The Report calls for significant changes in policies and practices in order to meet three overarching goals: "1) accelerate improvements to the environment, 2) remove unnecessary obstacles to economic growth and 3) more effectively manage limited fiscal and human resources." In order to meet these goals, the report recommends establishing clear department goals and performance metrics; reforming the regulatory regime to ensure legal compliance, scientific support and consideration of economic impact; streamlining the permitting process for land use; continuing advances initiated by the Site Remediation Reform Act; and establishing a comprehensive and stratgic approach toward natural resource stewardship. The report made other recommendations related to enforcement policies, regulations, promotion of "green" projects and budget and operations. Woven among a number of recommendations is a call for improvements in technology to facilitate transparency and efficiency. Corner Office: Edward F. McTiernan If you practice environmental law long enough, it is hard not to feel a bit like Henny Penny. It can be a real challenge to keep your wits about you and help your clients when everyone is acting like Chicken Little, panicking in the face of the latest legislative enactment or environmental regulation ... ...click here for more information US EPA Sets National Limits on Construction Site Runoff - 12/3/09 On November 23, 2009, the U.S. Environmental Protection Agency announced its final rule governing sediment and soil runoff from construction sites. The rule will take effect 60 days after publication in the Federal Register. ...click here for more information Acquisition of Bad Debt Loans - 11/30/09 Lenders, as we all know, continue to be saddled with under-performing and non-performing commercial real estate mortgage loans. ...click here for more information DEP Issues New Rules Governing Site Cleanups - 11/30/09 On November 4, the New Jersey Department of Environmental Protection (DEP) issued its new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS). ...click here for more information Expanded Tax Refunds From Carrying Back 2008 and 2009 NOLs May Be Available - 11/12/09 On Friday, November 6, President Obama signed the Worker, Homeownership and Business Assistance Act of 2009 (the “New Act”) into law. The New Act adopts a number of changes, such as extending the $8,000 first-time homebuyer tax credit ... ...click here for more information Sometimes It's Okay to Be Different: Nonconforming Uses in an Evolving Land Use Climate - 11/2/09 There are 2,566 separate municipalities in the commonwealth of Pennsylvania, each with challenges relating to population, infrastructure, generation of tax revenue and the attraction of a successful and sustainable mix of land uses ... ...click here for more information Hate Surprises? Read This. - 10/7/09 Does your project development due diligence checklist include a review of resolutions passed by the Council on Affordable Housing ("COAH")? If not, your project might be at risk, and you may not discover it until you are ready to start construction. ...click here for more information DEP Designates New Brownfield Development Areas in Six Municipalities - 10/6/09 Acting Commissioner Mark Mauriello announced on October 6 that NJDEP has designated portions of Lodi, Kearny, Plainfield, Rahway, Somerville, and Woodbridge as new Brownfield Development Areas. Such municipalities are eligible to receive grants of up to $5,000,000 each year from NJDEP’s Hazardous Site Remediation Fund to pay for investigation and remediation work. DEP case managers also assist them in overseeing and coordinating cleanup and redevelopment work. NJ Redevelopment Reform Bill May Soon Become Law - 10/4/09 Legislation aimed at enhancing protections and oversight for public investments in private redevelopment projects in New Jersey may soon become law, but some environmentalists say the current bill doesn't go far enough. ...click here for more information Economic Stimulus and COAH Update! - 6/29/09 On June 25th, both houses of the New Jersey Legislature passed the "New Jersey Economic Stimulus Act of 2009" by wide margins! The bill is awaiting the Governor's signature. The 2009 Stimulus Act is a comprehensive measure aimed at assisting the development community while providing much needed stimulus to New Jersey's economy. Of significant interest is the fact that the 2009 Stimulus Act includes sweeping changes to the "Statewide Non Residential Development Fee Act" (the "2008 COAH Fee Act") which has imposed a 2.5% affordable housing tax on most non-residential development for the past year. ...click here for more information Risky Business - Developers and Political Contributions There are extensive Pay to Play restrictions now which impact re-developers. The most specific one is Governor Corzine’s Executive Order 118 (effective November 15, 2008), which extends the pre-existing reportable contribution ban to re-developers and their lobbyists and consultants. ...click here for more information Is There a Hidden Omission in Your E&O Policy? To err is human, to insure against errors is prudent. Therefore, cautious professionals cloak themselves with the protective mantle of Professional Liability Errors and Omissions (E & O) coverage. ...click here for more information Deadline for Affordable Housing Plans Has Come and Gone Local governments across New Jersey spent the last days of 2008 scrambling to assemble plans for how they will provide for affordable housing. Late on Wednesday, the deadline for compliance, 233 of 302 eligible towns had filed their plans with the state Council on Affordable Housing. The N.J. League of Municipalities and several lawmakers had asked for an extension of the deadline but COAH declined. Towns that do not have housing plans in place are at risk of builder's-remedy suits by developers. Due to a 2008 change in the Fair Housing Act, towns can no longer rely on regional contribution agreements to fulfill their affordable housing obligations. Bill Lets Developers Skip $90M Fees A bipartisan bill sponsored by state Sens. Paul Sarlo of Wood-Ridge and Joseph Pennacchio of Morris Plains would exempt Xanadu and the Giants and Jets from paying a total of $90 million in fees designed to help towns provide affordable housing. ...click here for more information Corzine Signs Bill to Spark Construction Governor Jon Corzine recently signed legislation to spark commercial and housing construction once the economy improves. Click here to view the bill. New Jersey’s New Public Outreach Rule: Public Participation During the Site Remediation Process
On September 3, 2008, the New Jersey Department of Environmental Protection (“DEP”) announced a new rule requiring parties that are conducting remediation to engage in a process of written notification to property owners and tenants located within 200 feet of a cleanup site boundary. ...click here for more information New York's New Brownfield Law Previewed
Before adjourning in June, 2008, legislators in Albany overhauled the state’s brownfield cleanup program (S8717), ensuring that money to develop contaminated sites is better spent and targeted to communities where it is truly needed. Gov. David Paterson signed legislation on July 23, 2008 that will provide more incentives to clean up polluted sites, cap tax credits for redevelopment to limit the state's liability and increase fiscal accountability for the tax breaks. ...click here for more information Eminent Domain Update
In a significant decision, the New Jersey Appellate Division in Harrison Redevelopment Agency v. DeRose for the first time articulated a set of clear standards which define the parameters under which an owner of property in a designated redevelopment area can contest the use of eminent domain based on defects in the redevelopment designation process. The court's opinion provides a comprehensive analysis of the interplay between the Local Redevelopment and Housing Law (LRHL), the Eminent Domain Act and constitutional due process requirements. ...click here for more information COAH Adopts New Third Round Regulations
The Council on Affordable Housing (COAH) adopted its revised third round rules and methodology at its monthly COAH Board meeting in May. Additionally, as a result of the over 4,800 public comments received regarding the new rules, the Board also voted on a series of amendments. The new rules, which went into effect on June 2, 2008, continue to use a growth share approach which bases municipal affordable housing obligations on market-rate residential and non-residential growth.
...click here for more information
Critical Info SEQRA Negative Declarations Should Contain
The purpose behind and primary goal of the State Environmental Quality Review Act (SEQRA) is to incorporate the consideration of environmental factors ...
...click here for more information
New Law Broadens Notification Requirements for New Jersey Site Remediation Projects
Recent amendments to New Jersey’s contaminated site remediation statute expand the list of local and county officials that parties responsible for a remediation must notify of those activities. The changes, signed into law by Governor Corzine on January 14, 2008, also add to the list of documents that parties responsible for a remediation must make available to those officials.
...click here for more information
COAH Proposes New Third Round Rules
On December 17, 2007, the New Jersey Council on Affordable Housing (COAH) voted to propose its revised third round regulations resulting from the Appellate Division Decision on January 25, 2007. The rules are scheduled to be published in the January 22, 2008 New Jersey Register.
Visit these two sites for additional information: http://www.state.nj.us/dca/coah/dec07proposal.shtml or http://www.state.nj.us/dca/news/news/2007/approved/071217.html
Tax Transfer - Window of Opportunity
The time between now and February offers property owners a window of opportunity to seek changes in their property tax classifications that can result in significant savings in transfer taxes.
...click here for more information
On October 9, 2007, Joseph V. Doria, Jr. was sworn in as Acting Commissioner of the Department of Community Affairs. Click here for more information.
Following Gallenthin's Lead, Court Invalidates Newark's Designation of the Mulberry Street Area as 'An Area in Need of Redevelopment'
Following on the heels of the landmark New Jersey Supreme Court decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, a Superior Court judge in Essex County very recently invalidated the City of Newark’s determination that the City’s Mulberry Street Area was an area in need of redevelopment. The decision in Mulberry Street Area Property Owner’s Group v. City of Newark, handed down July 19, 2007, was based on findings that the City’s only basis for the determination was that the area was “not fully productive.”
...click here for more information
New Jersey Supreme Court Holds Redevelopment Designation Cannot Be Based Solely On Not Fully Productive Use of Property
On June 13, 2007, the New Jersey Supreme Court, in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, decided an issue of first impression with respect to the controversial topic of redevelopment in New Jersey, specifically concerning the proper application of the "not fully productive" statutory criteria for a redevelopment designation.
...click here for more information
Public Advocate Releases Report on Eminent Domain Abuse, Calls For Action on Pending Reform Legislation Ever since the U.S. Supreme Court upheld the use of eminent domain power for the purpose of economic development in Kelo v. City of New London 125 S. Ct. 2655, reh’g denied, 126 S. Ct. 24 (2005), commentators, activists, and legislators have called for controls on the use -- and abuse -- of eminent domain. The latest contribution to the debate in New Jersey is a report from the state’s Department of the Public Advocate released on May 29 and entitled “In Need of Redevelopment: Repairing New Jersey’s Eminent Domain Laws -- Abuses and Remedies: A Follow-Up Report.” The new report follows a more policy-oriented May 2006 report from the department entitled “Reforming the Use of Eminent Domain for Private Redevelopment in New Jersey.
...click here for more information
Zoning
Boards Have Jurisdiction to Grant Variances in Redevelopment Areas The
Appellate Division recently held that, where a municipality adopts
a redevelopment plan as overlay zoning in a zoning district, the
zoning board has jurisdiction to grant a variance from the provisions
of the plan. This opinion does not address applications from designated
redevelopers that have agreed to carry out a redevelopment plan.
No
Condemnation without Notification Striking
a blow against unbridled redevelopment power, the Appellate Division
in Passaic v. Shennett, held a condemnation voidable even after
the property was redeveloped, where the municipality failed to properly
notice the property owner of the impending condemnation. The court
noted that the city’s non-compliance with N.J.S.A. 20:3-6
rendered their actions without authority, because the prerequisites
set out in the statute are jurisdictional.
The
property in question had been in Shennett’s family since 1925.
Although vacant at the time, Shennett had been making timely property
tax payments. Nonetheless, in September 2003, the city sent the
notice of condemnation to the vacant lot, not the address to which
it had been sending the tax bills.
Five
days before the default judgment was entered with a declaration
of taking for $14,730, the Passaic Redevelopment Agency had agreed
to sell the property to a company owned by a city councilman for
$60,000. The property was sold to the councilman’s company
in January 2005 and by May, it had constructed a two family home
on the property.
The
Appellate Division allowed Shennett’s appeal of the condemnation
judgment out of time because of the egregious facts. In holding
the judgment void for due process violations, the court stated,
“In exercising their powers of eminent domain, government
entities must strictly comply with the rules and statues governing
condemnation.” If the city still wants to condemn the property,
it will have to start from the beginning, with proper service of
the required pre-condemnation notice.
Appeals
Court Strikes Down Third Round COAH Rules; Corzine Administration
Given Six Months to Develop New Affordable Housing Plan On
Thursday, January 25, 2007, the Appellate Division sent shockwaves
throughout the state by invalidating the third round affordable
housing rules. The controversial third round rules were adopted
by the Council on Affordable Housing (COAH) after much debate on
December 20, 2004 and are designed to calculate affordable housing
needs from 1999 to 2014 and establish criteria for satisfaction
of the affordable housing need between 2004 and 2014. Almost immediately
after their adoption, the New Jersey Builders Association, Fair
Share Housing Center and several other organizations brought a challenge
against the third round rules asserting that they do not satisfy
or advance the state's constitutional or statutory obligation to
provide affordable housing in the calculation of housing need, the
allocation of that need or through the compliance mechanisms available.
New
Jersey Adopts Emergency Child Care Center Requirements In
reaction to the Kiddie Kollege case where a daycare facility was
built on the site of a former thermometer plant without proper remediation
of the mercury contamination, the New Jersey Department of Children
and Families has adopted regulations on an emergent basis to amend
the physical plant requirements for all child care centers. A child
care center is any facility maintained for the care of 6 or more
children under the age of 13. Certain facilities, such as programs
in bowling alleys and health clubs where children are dropped off
for less than two hours while a parent is present in the building,
are exempt from the definition of child care center. ...click
here for more information... Status
Updated on Effective Date on Final AAI Rule As
described in the May 16, 2006 issue of In-Sites,
in late 2005 EPA issued its final "All Appropriate Inquiries"
("AAI") rule, which specifies the pre-acquisition investigations
that purchasers must conduct in order to be eligible for exemptions
from CERCLA liability as "innocent landowners," "bona
fide prospective purchasers" (for sites acquired after January
11, 2002), or owners of properties that are contiguous to contaminated
sites. The new AAI rule, which replaces an interim standard that
had been in place since 2002, requires a wide-ranging inquiry into
past and present activities on the subject parcel and certain nearby
parcels. The new AAI rule went
into effect on November 1, 2006. Developers currently planning or
expecting to acquire real estate (especially former industrial sites)
on or after that date, as well as their consultants, should be aware
of the rule's requirements, which explicitly reference ASTM's revised
Standard E1527-05 for Phase I assessments. Public
advocate joins eminent-domain foes Embattled
homeowners in a waterfront neighborhood fighting the city's efforts
to take their homes for private redevelopment gained a powerful
ally Wednesday — their second in two days — in their
fight to protect their properties.
Appeal
of Eminent Domain Ruling Set Some
residents of the Marine Terrace-Ocean Terrace-Seaview Avenue area
in Long Branch will file an appeal today in their case against the
city's plan to use eminent domain to take their properties for redevelopment.
The
following represents a summary of some of the initiatives of the
Report on Delaware River Flood Mitigation that are currently being
undertaken by the NJDEP.
Governor
Corzine Announces New Flood Control Rules Governor
Jon S. Corzine announced significant changes to the rules of the
Flood Hazard Area Control Act, as recommended by New Jersey’s
Flood Mitigation Task Force report. He also announced that the state
will pay the local communities’ share of FEMA’s costs
associated with the July 2006 floods.
NJ
Department of Community Affairs Releases Housing Report New
Jersey Department of Community Affairs (DCA) Commissioner Susan
Bass Levin today announced the release of the state’s Housing
Policy and Status Report.
Ohio
High Court Rejects U.S. Supreme Court’s Rationale on Eminent
Domain Ohio’s
top court has told the U.S. Supreme Court, "Thanks, but no
thanks" for its rationale in Kelo v. City of New London, the
2005 case that allowed state and local governments to seize private
property for private economic development.
Assembly
Passes Bill to Significantly Change Redevelopment Law The New Jersey
State Assembly recently passed a bill that would radically alter
the state of redevelopment law in New Jersey. Bill A-3257, which
the Assembly passed with amendments on June 22, 2006, would make
significant modifications to the manner in which redevelopment designations
are made, and redevelopment plans are implemented, in New Jersey.
It would also refine and modify the procedures for eminent domain
proceedings. The bill is currently pending before the Senate Urban
and Community Affairs Committee.
Assembly
OKs Bill Aimed at Eminent Domain Abuse The
state Assembly approved an eminent domain reform measure aimed at
restricting when towns can take land for private redevelopment,
despite critics who say residents will not be much more protected
from government land grabs.
Appeals
Panel Backs Landowner in Eminent Domain Case A state appellate
panel ruled against the city Wednesday in an eminent domain case
involving a former landowner who appealed a 2005 decision on properties
in Beachfront North.
New
Jersey Department of Public Advocate | Eminent Domain When
the new Department of the Public Advocate opened on March 27th,
Public Advocate Ronald Chen announced that its first major initiative
would be to investigate the use of eminent domain for private redevelopment
in New Jersey.
View
more on this topic by visiting http://www.state.nj.us/publicadvocate/issues DEP
Commissioner Reaffirms Validity of New Jersey Highlands Rules Department of
Environmental Protection Commissioner Lisa P. Jackson today appeared
before members of the New Jersey Highlands Council to make clear
that regulations adopted last year to protect the environmentally
sensitive Highlands region remain in effect.
"The DEP
is committed to preserving our wealth of precious natural resources
in the Highlands. To that end, we will take formal action on final
environmental regulatory standards in the coming months. Until then,
the existing Highlands rules are still valid," Commissioner
Jackson said. "To dispel misinformation and to avoid any possible
misunderstandings, we are working to let the public know that these
interim rules are still in effect, and our communications efforts
include correspondence to New Jersey's mayors." The interim
rules are effective until November 2006. First adopted
in May 2005, the interim Highlands rules established regulatory
standards for implementing the landmark Highlands Water Protection
and Planning Act, including permit review for major Highlands development,
septic systems, historic and archaeological resources and unique
and irreplaceable resources. The rules' expiration
date, originally set for May 2006, was automatically extended last
December when the DEP proposed to readopt the interim rules, as
allowed under the state's Administrative Procedure Act, after consulting
with the Highlands Council, the State Planning Commission, and the
Departments of Community Affairs, Transportation, and Agriculture. For
more information on the DEP's Highlands rules, visit http://www.state.nj.us/dep/highlands/
Trenton
and Jersey City Receive Brownfields Economic Redevelopment Initiative
Grants Among
the EPA Brownfields grants recently announced as part of the ongoing
Brownfields Economic Redevelopment Initiative were grants to the
cities of Trenton and Jersey City. Each city will receive a grant
of $200,000. “Brownfields grants help communities turn problem
properties into community assets, putting both people and property
back to work,” explained Regional Administrator Alan J. Steinberg.
Trenton intends to use its grant to remove PCB contaminated soil
and construct a cap at the Thropp Site in Trenton. Jersey City’s
plan for the grant includes community outreach, a brownfields inventory,
site investigations and clean up plans for potential sites. Generally,
entities eligible for such grants include state, local, and tribal
governments, with the exception of Indian tribes in Alaska, as well
as a range of governmental and quasi-governmental entities, such
as a redevelopment agency. For cleanup grants, non-profit organizations
and non-profit educational institutions are eligible as well.
For
more information http://www.epa.gov/brownfields/index.html
Fed-up
Judge Strips Two Bergen Towns of Zoning Powers Fed up with two Bergen County towns that failed
to meet their affordable housing obligations, a state judge yesterday
took the unprecedented step of stripping them of their land-use
powers.
Tighter
Eminent-Domain Controls Urged Fed
up with two Bergen County towns that failed to meet their affordable
housing obligations, a state judge yesterday took the unprecedented
step of stripping them of their land-use powers.
Post
Kelo Cases Suggest Heightened Judicial Scrutiny of Procedural Due
Process Aspects of Municipal Redevelopment Plans The
United States Supreme Court’s decision Kelo v. City of
New London, Connecticut, has substantially limited the judiciary’s
review of the exercise of eminent domain powers by being overly
deferential to government determinations as to what constitutes
a “public use”. Still however, courts remain vigilant
with respect to reviewing whether or not adequate evidence supports
the determination that a particular project furthers a public interest.
When
May a City Use Its Eminent Domain Powers to Condemn Property for
Private Redevelopment? ISSUE:
Does a city act unlawfully when it commissions an urban
renewal study of a residential area previously targeted by a private
developer, classifies the area as 'deteriorating,' and subsequently
uses its eminent domain powers to take (with compensation) the property
of owners unwilling to vacate the targeted area to make way for
private redevelopment? BACKGROUND:
This highly publicized case involves a challenge by several "holdout"
homeowners to the City of Norwood's eminent domain action taking
possession of their property in order to make way for two new city-owned
parking garages and a large, privately owned commercial development
expected to create jobs and increase local tax revenues. View
more on this topic by visiting http://www.sconet.state.oh.us/Communications_Office/
oral_arguments/06/0111/0111.asp#051210_051211 Gibbons
Director Edward McTiernan Argues Rule Challenge Before Supreme Court Gibbons
Director Edward F. McTiernan appeared before the New Jersey Supreme
Court on January 31 to argue on behalf of the New Jersey State Chamber
of Commerce in In re Adoption of N.J.A.C. 7:26E-1.13. The
case involves a challenge to a decision by the New Jersey Department
of Environmental Protection ("DEP") to use stringent drinking water
quality standards as the standards to guide remediation of groundwater
at every contaminated site in the state, regardless of site-specific
conditions and whether or not the groundwater under the site is
used, or is even in the state's plans for use, as drinking water.
Over a decade
ago, the Legislature directed DEP to adopt "minimum remediation
standards for . . . groundwater . . . quality necessary for the
remediation of contamination of real property." For a time, DEP
used as the statutorily required "minimum remediation standards"
its pre-existing, generally applicable, numerical Ground Water Quality
Standards, which assume use of all groundwater for drinking. After
a separate court challenge invalidated this practice, DEP was forced
to go through formal rulemaking to adopt the required standards.
In 2003, DEP once again adopted as the required remediation standards
the very same Ground Water Quality Standards, this time in combination
with "narrative standards" that affect only how and how fast, but
not whether, the strict numerical standards must be achieved.
Gibbons
challenged the rule on behalf of the Chamber of Commerce, arguing
that the statute clearly required DEP to develop specific standards
for contaminated sites that considered site-specific factors, rather
than simply importing its generally applicable drinking water standards.
The Appellate Division upheld the rule, but the Supreme Court agreed
to hear the case. New
Jersey Supreme Court to Decide if a Municipality Can Condemn Property
to Slow Residential Development On
January 19, 2006, the New Jersey Supreme Court agreed to review
the Appellate Division's ruling in Mount Laurel Township v. MiPro
Homes, LLC. The Court will decide whether a municipality can
use the power of eminent domain to acquire property to preserve
open space and slow residential development. For details of the
Appellate Division's ruling, see "Condemnation
in New Jersey: No Place to Run; No Place to Hide? Mount Laurel Township
vs. Mipro Homes, LLC.". NJ
DEP Fines Developer $555,000 for Failure Sounding
a warning to developers and builders in the state, NJDEP Commissioner
Campbell announced a $555,000 fine assessed against Pulte Lifestyle
Communities, Inc. in connection with a construction project of 449
homes in Somerset County. "Builders who disregard permit limits
and safeguards, as Pulte did in this case, will face significant
fines and penalties," warned the Commissioner. Pulte
exceeded the restriction in its permit which allowed disturbance
of 1.3 acres of wetlands, actually disturbing 3.3 acres. In addition,
it failed to file deed restrictions prior to commencing construction
and it cleared land within stream buffer zones. http://www.state.nj.us/dep/newsrel/2005/05_0102.htm New
Jersey Supreme Court Grants Certification in Groundwater Cleanup
Standards Case, May Have Ramifications for Redevelopment and Smart
Growth Policies Among the "course
corrections" enacted during the 1990s to reform the state's
contaminated site remediation program, the New Jersey Legislature
directed NJDEP to develop groundwater cleanup standards for the
remediation of contaminated sites. When NJDEP instead decided to
use statewide groundwater standards, which assume that all groundwater
is used for drinking water, the Gibbons Environmental Group, on
behalf of the New Jersey State Chamber of Commerce, sued to challenge
NJDEP's decision. One of the principal policy arguments against
NJDEP's rule is the chilling effect it has upon redevelopment of
brownfields sites. In an opinion published last fall, In
re Adoption of N.J.A.C. 7:26E-1.13, the Appellate Division
rejected the firm's arguments, but the New Jersey Supreme Court
recently granted certification to review the Appellate Division's
decision. The case presents an important opportunity for the Court
to decide how environmental remediation standards fit into brownfield
redevelopment and smart growth policies. The
New Jersey Department of Environmental Protection ("NJDEP")
Announces Highlands Rules DEP
has announced interim rules that implement key provisions of the
Highlands Act, which governs development in the 800,000-acre Highlands
region. The new rules, which were effective immediately, establish
procedures and substantive standards for applications for the special
DEP permits that are required for major developments within the
Highlands preservation area. Click
here for more information. NJDEP
Promotes Revitalization with Grants in New Jersey "For
almost a decade, EPA's Brownfield's program has been empowering
states, communities, and other stakeholders in redevelopment,"
said acting EPA Regional Administrator Kathleen C. Callahan. "Based
on our successes in New Jersey, we've learned that brownfields are
a good investment for everyone." Click
here for Press Release. |
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