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NEW JERSEY ENVIRONMENTAL LAW UPDATE To view the
downloadable Update, you must have Acrobat Reader installed on your
computer. If you do not have this installed on your computer, you
may download it for free by clicking on the Adobe icon. NEW JERSEY ENVIRONMENTAL LAW NEWSLETTER
2005 NEW JERSEY ENVIRONMENTAL LAW NEWSLETTER In This Issue Judicial Decisions...........................................
{Updated as of 070105} - Lewis Goldshore Farmland Preservation [Chapter 7]
* Taxation of Greenhouses Township of Monroe v. Gasko, 182 N.J. 613 (2005) (greenhouses did not lose their farmland assessment status because customers were allowed to enter the buildings for viewing the displays, selecting and removing plants for purchase otherwise on the premises).
* DEP Commissioner's Authority Concerning Bear Hunt U.S. Sportsmen's Alliance v. DEP, 182 N.J. 461 (2005) (Commissioner of the DEP has the authority to approve the Fish and Game Council's comprehensive policies; the Council could not promulgate regulations authorizing a bear hunt in the absence of approved comprehensive policies).
* Objections to Commission s Height Standards Infinity Broadcasting Corp. v. N.J. Meadowlands Commission, 377 N.J. Super. 209 (App. Div. 2005) (appeal by the operators of radio stations broadcasting towers from the Meadowlands Commission's adoption of amendments to a redevelopment agreement which addressed the height of residential structures to be constructed in the District; adoption of the redevelopment plan was quasi-legislative in character and the Commission satisfied its responsibilities by holding public hearings and providing sufficient information regarding the amendments to enable objectors to oppose them and by receiving comments and objections; the Law Division is the proper place to challenge the Commission's exercise of its land use authority). Hazardous Substances [Chapter 11]
* Rejected Challenge to DEP's Groundwater Rules In re Adoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78 (App. Div. 2005) (rejected challenge to DEP's regulations that established minimum ground water and surface water remediation for the cleanup of contaminated property; the regulations did not violate the Brownfields Act because they applied pre-existing ground water standards for potable water to remediation of industrial sites under Industrial Site Remediation Act, instead of promulgating new, less stringent, site specific standards). Insurance Issues [Chapter 13]
The New Jersey Supreme Court in Nav-Its, Inc. v. Selective Insurance Co. has once again ruled in favor of an insured in an environmental coverage dispute. 183 N.J. 110 (2005). In Nav-Its, the Court determined that the absolute pollution exclusion clause did not bar coverage for nontraditional environmental pollution claims.
* Coverage for Negligent Misrepresentation McClellan v. Feit, 376 N.J. Super. 305 (App. Div. 2005) (where a seller of residential property was sued for failing to disclosed the presence of an underground fuel storage tank, the Appellate Division reversed summary judgment in favor of the homeowners' insurance carrier where there was a question of fact as to whether the insured had received notice of reduced coverage that eliminated coverage for negligent misrepresentation). Noise [Chapter 15]
* Noise Control Ordinance Upheld State v. Clarksburg Inn, 375 N.J. Super. 624 (App. Div. 2005) (rejected claims that noise control ordinance was unconstitutional vague or overbroad and found that the ordinance, as applied, used a reasonableness standard in its application). Sewerage [Chapter 20]
* Off-Site Infrastructure Contributions Britwood Urban Renewal, LLC v. Asbury Park, 376 N.J. Super. 552 (App. Div. 2005) (pursuant to the Local Redevelopment and Housing Law a municipality could not impose off-site infrastructure contributions on party that was not a redeveloper, the Municipal Land Use Law did not independently authorize these costs to be imposed, and the municipality's attempt to impose these costs was ineffective where the developer had previously received final site plan approval). Toxic Torts [Chapter 24]
* Landowners Duty of Care to Person Not on its Premises Olivo
v. Exxon Mobil Corp., 377 N.J. Super. 286 (App. Div. 2005)
(reversed summary judgment in favor of premises owner; plaintiff
who worked as a welder/steamfitter at the site had worked around
asbestos products on a daily basis; plaintiff commenced a survival
and wrongful death action on behalf of his wife who had been diagnosed
with mesothelioma caused by inhaling asbestos while laundering plaintiff
s work clothes; while decedent had not been on the premises duty
it was fair and just to impose a duty of care on the landowner). Water Quality [Chapter 25]
* Rejected Challenge to DEP's Groundwater Rules In re Adoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78 (App. Div. 2005) (rejected challenge to DEP's regulations that established minimum ground water and surface water remediation for the cleanup of contaminated property; the regulations did not violate the Brownfields Act because they applied pre-existing ground water standards for potable water to remediation of industrial sites under Industrial Site Remediation Act, instead of promulgating new, less stringent, site specific standards). * NJPDES Permit Required SJC Builders, LLC v. Department of Environ. Protec., 378 N.J. Super. 50 (App. Div. 2005) (court rejected an attempt by a developer to subdivide the property to avoid NJPDES permit requirement for septic tanks that exceed 2,000 gallons per day). * Exhaustion and Ripeness K. Hovnannian Companies v. DEP, ___ N.J. Super. ___ (App. Div. 2005) (DEP revoked NJPDES permit following the reclassification of the receiving waters to C-1; upheld dismissal of trial court action based on failure to exhaust administrative remedies and ripeness grounds). Water Supply [Chapter 26]
* Rejected Challenge to DEP's Groundwater Rules In re Adoption of N.J.A.C. 7:26E-1.13, 377 N.J. Super. 78 (App. Div. 2005) (rejected challenge to DEP's regulations that established minimum ground water and surface water remediation for the cleanup of contaminated property; the regulations did not violate the Brownfields Act because they applied pre-existing ground water standards for potable water to remediation of industrial sites under Industrial Site Remediation Act, instead of promulgating new, less stringent, site specific standards). Zoning/Land Use [Chapter 28]
* Off-Site Infrastructure Contributions Britwood Urban Renewal, LLC v. Asbury Park, 376 N.J. Super. 552 (App. Div. 2005) (pursuant to the Local Redevelopment and Housing Law a municipality could not impose off-site infrastructure contributions on party that was not a redeveloper, the Municipal Land Use Law did not independently authorize these costs to be imposed, and the municipality's attempt to impose these costs was ineffective where the developer had previously received final site plan approval). * Immunity for Objectors Structure Building Corp. v. Abella, 377 N.J. Super. 467 (App. Div. 2005) (summary judgment in favor of neighboring property owners who challenged developer's approvals of six lot subdivision; immunity provided to those who petition who petition the government for redress).
The following publications, co-authored by Lewis Goldshore, Esq., and Marsha Wolf, Esq., were published in 2005: On January 17, 2005, Not So Fast Track Law was published in the New Jersey Law Journal. The article reviewed recent developments concerning the implementation of the Smart Growth Act, commonly referred to as the Fast Track Law (FTL). As a result of an Executive Order issued ten days before Governor McGreevey's resignation, the heated debate over FTL s implementation will reach deep into 2005. On February 7, 2005, Politics and the Environment published in the New Jersey Law Journal. The article reviewed the political implications of governmental policies designed to promote environmental protection. The need to address these issues has been recognized by those who seek or hold elective office at the federal, state and local levels. On February 21, 2005, Redevelopment Meets Green Acres was published in the New Jersey Law Journal. The article reviewed two Appellate Division rulings that involved the City of Plainfield's efforts to redevelop its downtown. The first case overruled a DEP decision that cleared the way for the commercial redevelopment of a City owned site that had been temporarily used for park purposes. The Green Acres law was then amended to address this particular situation. A second challenge to the City's redevelopment plans was rejected based on that statutory amendment. On March 21, 2005, Time For a Cleanup Has Come was published in the New Jersey Law Journal. The article reviews a recent Third Circuit, U.S. Court of Appeals, decision that was designed to put an end to a 23 year long process involving the cleanup of a chromium contaminated site in Jersey City. The appeals court's ruling clarified the standard of review for Resource Conservation and Recovery Act endangerment determinations, applied the rules pertaining to the legal doctrine of standing, and considered the appropriateness of the District Court s injunction. On April 11, 2005, Earth Day Plus 35 was published in the New Jersey Law Journal. In addition to reviewing the state's environmental achievements, the commentary article identified the challenges ahead. On April 25, 2005, More Green for Greenhouse Owners was published in the New Jersey Law Journal. The article reviews a recent decision of the New Jersey Supreme Court that clarified how greenhouse should be assessed for local property tax purposes. While the ruling will provide temporary tax relief for certain farming operations, it remains to be seen whether it or any of the various governmental policies designed to preserve agriculture will be successful in achieving the desired objectives. On May 16, 2005, Insurance Coverage for Nontraditional Pollution Claims, was published in the New Jersey Law Journal. The article discusses a recent New Jersey Supreme Court decision that follows a well-established trend by ruling in favor of an insured in an environmental coverage dispute. The Court held that an insurance policy's pollution exclusion clause did not bar coverage for nontraditional environmental pollution claims. This refers to newer category of environmental claims has usually, but not always, arisen in indoor settings and has been related to exposure to vapors, mold, insecticides and lead paint. On June 10, 2005, The New Highlands Regulations, was published in the New Jersey Lawyer Newspaper. The article reviews the Department of Environmental Protection's adoption of the next phase of its Highlands regulatory program - the 270 day rules. That review concluded that the DEP went far beyond what most of the interested parties anticipated - future development in the Highlands preservation area, subject to very narrow exceptions, has effectively been prohibited. On June 20, 2005, Takings Law Clarified, was published in the New Jersey Lawyer Newspaper. The article reviews the United States Supreme Court's recent decision in Lingle v. Chevron which clarified the law as to unconstitutional takings. The high court rejected the substantially advances approach. This will not be the last word on the taking issue. The courts will continue to be called on to address these claims including those arising in the context of the highlands preservation area restrictions. Municipal Environmental Responsibilities will be published in a future issue of the New Jersey Law Journal. The article reviews the environmental responsibilities imposed on municipal government. These obligations are broad ranging but tend to arise in three general settings: managing municipal facilities; administering the land use process; and assuring environmental compliance. The article identifies the most serious risks and provides practical guidance for reducing exposure.
III. Continuing Education Programs & Seminars The 17th Annual Review of New Jersey Environmental Law, sponsored by the New Jersey Institute for Continuing Legal Education, was held on January 25, 2005 at the New Jersey Law Center, New Brunswick, from 4 to 8 PM. The speakers included Commissioner Bradley M. Campbell, Senator Bob Smith, Chair, Senate Environmental Committee, Barbara Conklin, Esq., Deputy Attorney General, Environmental Section and Hon. John R. Tassini, Administrative Law Judge. Lewis Goldshore served as the program's moderator and provided an overview of 2004's most significant environmental developments. The 2nd Annual Review of Highlands Law, sponsored by the New Jersey Institute for Continuing Legal Education, was held on June 28, 2005 at the Headquarters Plaza, Morristown, from 12 to 4 PM. The speakers will include Senator Bob Smith, the sponsor of the Highlands Law; Thomas Borden, New Jersey Highlands Council; Lisa Jackson, Assistant Commissioner of the Department of Environmental Protection; Thomas Collins, Esq., attorney for various local land use agencies in the Highlands Area; and Raymond Zabihach, Morris County Planning Board. Lewis Goldshore served as the program's moderator and discussed the taking issue in the Highlands. Eminent Domain & Regulatory Takings: Update 2005, sponsored by the New Jersey Institute for Continuing Legal Education, will be held pm September 23, 2005 at the Clarion Hotel, Edison, from 9 AM to 12 PM. Lewis Goldshore will be discuss the application of taking rules in the environmental sensitive setting. The New Jersey State League of Municipalities Annual Convention will be held during the third week in November. Mr. Goldshore will speak at a League seminar concerning recent developments in stormwater and a New Jersey Institute of Municipal Attorneys program on environmental issues confronting municipal attorneys. ___________________________________ * Chapter and section references are to Goldshore & Wolf, New Jersey Environmental Law, New Jersey Institute for Continuing Legal Education. ___________________________________
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Over
the past 35 years, the field of environmental law has proven to
be both fast paced and continually evolving. Each branch of government
- judicial, legislative and executive - has contributed to the development
of environmental law. In the computer age, environmental professionals
can no longer rely solely on print media to provide news of the
changes that are affecting the environmental protection field.
As a result, we decided
that it was timely to launch the New Jersey Environmental Newsletter
to provide news of recent developments in the environmental field.
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© 2004 Goldshore Cash & Kalac. All rights reserved. | |