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Governor Corzine has nominated Mark Mauriello to succeed
Lisa Jackson as NJDEP Commissioner. Mauriello, a career DEP
employee, most recently served as the Assistant Commissioner
for Land Use.
Governor Corzine has called for a one year moratorium on
the 2.5% affordable housing impact fee imposed on new development
by the recently adopted COAH Regulations. The Governor also
called for the grandfathering of projects that were in the
application process at the time the COAH Rules were adopted.
The Legislature continues to discuss Licensed Site Professional
(LSP) legislation. The legislation, which is modeled on a
successful program in Massachusetts, would create a professional
licensing system that would allow outside consultants to certify
that certain environmental remediation projects comply with
NJDEP requirements. The Bill is intended to reduce the enormous
backlog in DEP’s Site Remediation Program.
NJDEP has released a draft report on possible ways of reducing
greenhouse gas emissions in New Jersey. Preparation of the
report, which was issued for public comment on December 15,
2008, is required by the Global Warming Response Act (P.L.
2007, c 112). The report outlines policies and goals that
the authors believe are needed to achieve Statewide 2020 greenhouse
gas limits. The Report, which is available on DEP’s website,
recommends aggressive action in land use planning and transportation,
carbon sequestration, energy efficiency and renewable energy
and new technologies and markets. Proposed land use measures
include the following:
- 90% of all new development occur in areas already served
by public infrastructure.
- 99% of that development be in the form of redevelopment.
- At least 90% of all buildings be fully occupied.
- All New Jersey residents have transportation options for
getting to work other than single occupancy vehicles.
The Appellate Division, on October 20, 2008, held that an
eight year delay between the inspection of a property and
the issuance of a violation notice, and a subsequent three
year delay between the filing of a waiver application by the
property owner and a decision denying that application resulted
in a “gross injustice and deprivation of due process
to the applicant.” The Decision, In Re Resolution
of New Jersey Pinelands Commission No. P.C. 4-07-37 (Docket
No. A-5656-06T2) is limited to the facts before the Court,
but was nevertheless a clear signal that an agency’s
failure to make a reasonably timely decision on an application
or an enforcement matter can constitute both an abuse of discretion
and a due process violation.
The Appellate Division, in a November 17, 2008 ruling, held
that DEP has authority to protect Threatened Species under
New Jersey’s Endangered and Non-Game Species Conservation
Act, N.J.A.C. 23:2A-1. The ruling in ZRB LLC v. NJDEP
(Docket No. A-6046-06T3) involved whether DEP regulations
affording protection to species “… whose prospects
of survival or recruitment are in jeopardy or are likely within
the foreseeable future to become so” (i.e., threatened)
was authorized by the Act. The Appellant, the prospective
developer of a subdivision in Middle Township, Cape May County,
had challenged DEP’s regulations, arguing that the Act
was limited to the protection of Endangered Species only.
The Court examined the legislative history of the Act, and
determined that the inclusion of Threatened Species was authorized
and appropriate.
The Court also rejected the Appellant’s argument that
the site, which DEP considered to be suitable habitat for
the Barred Owl, was not in fact suitable. The applicant’s
expert conducted 46 site visits over four years without observing
an owl on the property, and was of the opinion that disturbances
in and around the property rendered it unsuitable. DEP disagreed,
and the Court found in favor of DEP.
***
For additional information on these or any other recent
developments, contact Neil
Yoskin at 229 Nassau Street, Princeton, NJ 08542, 609-279-0900
or nyoskin@sbflawfirm.com .
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The Appellate Division of the Superior Court has recently
issued two potentially significant decisions dealing with
public access to lands adjacent to tidal waters. Both were
authored by Judge Stephen Skillman, and both were approved
for publication. They call into question the manner in which
DEP requires public access for some waterfront development
projects.
The first decision, Avalon v. New Jersey Department of
Environmental Protection, held that conditions which DEP
sought to impose on state aid to municipalities for shore
protection were invalid. Sokol, Behot & Fiorenzo is proud
to have served as co-counsel for the Borough of Avalon.
The second, Bubis v. Kassin, held (among other things)
that public access to private, upland waterfront property
cannot be required without the payment of compensation if
that property had not previously been devoted to public use.
Both decisions involved the applicability of New Jersey’s
Public Trust Doctrine in different legal contexts. The Doctrine,
which has its origins in Roman law, affords the public a right
of access to tidally flowed waters for commerce, navigation,
fishing and recreation. New Jersey’s courts have repeatedly
relied on the Doctrine to strike down municipal and quasi-municipal
efforts to place discriminatory or unreasonable limits on
public access.
Avalon v. DEP
Avalon v. DEP , decided on November 19, 2008, involved rules
adopted by DEP in 2007. The Rules required, among other things,
that municipalities applying for state aid for shore protection
agree to provide public access to all beaches and tidal waterfronts
24 hours a day, seven days a week unless otherwise permitted
by DEP; to provide public parking necessary to meet the needs
of any newly restored beach (and to acquire land for that
purpose if necessary); to construct bathroom facilities every
half-mile; to provide pedestrian access every one-quarter
mile; and to allow 24 hour access, seven days a week to any
municipally owned marinas.
The Court, in a unanimous decision, held that the Rules
infringed upon the statutory powers of municipal government,
were in conflict with the existing statutes governing shore
protection funding, and were not authorized either by the
Public Trust Doctrine or by the Coastal Area Facility Review
Act (CAFRA). The Court made the following observations and
findings:
It is … possible that a municipality could exercise
its statutory authority to close beaches in a manner that
would violate the Public Trust Doctrine. However, the possibility
of such an abuse of municipal authority does not provide a
basis for implying authority on the part of DEP to require
a municipality to keep its ceanfront property open to the
public at all times …
The Legislature has not delegated any authority to the
DEP to preempt or supervise a municipality’s operation
of its beaches. Moreover, we perceive no basis for implying
such authority.
The [Supreme] Court has never held that the Public Trust
Doctrine requires a municipality that owns and operates a
beach to provide a specified number of parking spaces and
restrooms in proximity to the beach or that DEP has the authority
to impose such requirements upon a municipality. Therefore,
we conclude that the Public Trust Doctrine does not provide
authorization for the DEP Rules imposing these requirements.
Bubis v. Kassin
Bubis v. Kassin, decided on December 11, 2008, involved
an ongoing dispute between two property owners in Loch Arbour
in Monmouth County. The opinion was the most recent of four
decisions on the matter. The Court, applying standards developed
by the State Supreme Court in prior decisions, held that the
owner of a home immediately landward of a privately owned
“dry sand” beach had no continuing right to use
that beach.
The Court also appeared to place significant limitations
on government’s ability to require such access without
compensation, stating that
“… if property owners use their land solely for
their own private enjoyment, the government may not create
a right of public access without payment of just compensation.
See Nollan v. California, 483 U.S. 825 (1987).”
Discussion
Both of these decisions are going to inject considerable
uncertainty into DEP’s decision-making. New Jersey’s
courts have long recognized the vitality of the Public Trust
Doctrine, and DEP has interpreted the Doctrine as allowing
it to require public access onto and across private waterfront
property as a condition of a CAFRA Permit. This practice,
in the absence of compensation, now appears to be contrary
to the Court’s ruling in Bubis v. Kassin.
Both opinions were approved for publication (opinions not
approved for publication are of limited value as precedent).
DEP has appealed the Avalon decision to the State Supreme
Court, and will likely do so in the Bubis case, so
it is difficult to say what will happen next.
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On October 6, 2008, NJDEP simultaneously adopted and re-proposed
amendments to its Freshwater Wetland Protection Rules (N.J.A.C.
7:7A). The complete document was published in the New Jersey
Register and can be found on DEP’s website at www.nj.gov/dep/rules/adoptions.html
. Key features of the adoption include the following:
- The Rules purport to give local and county planning boards
the authority to require Letters of Interpretation as an
administrative completeness checklist item. While this makes
sense as a matter of general application, it has the effect
of impermissibly amending both the Municipal Land Use Law
and the Freshwater Wetland Protection Act.
- The acreage limit for projects requiring a General Permit
No. 6 for isolated wetland fill, if combined with other
general permits (such as those for road crossings and utility
lines) will be reduced from 1.0 to 0.5 acres. If the amount
of isolated wetlands to be filled exceeds 0.5 acres, then
a GP 6 remains available for that fill, but no other filling
can be authorized under a General Permit. Instead, an Individual
Permit will be required. The adoption indicates that this
is in response to a Federal limit of 0.5 acres on Nationwide
Permits.
- The Rules now require that General Permit applications
include a plan depicting the extent of wetlands on the entirety
of the property, regardless of the size of the property
or of the amount of proposed disturbance.
- The adoption codifies the Department’s current practice
of requiring new Transition Area applications if a project
has not been constructed during the initial five year permit
period, even in cases where Wetland Transition Area limits
have been deed restricted and recorded.
- The existing rules require a permit modification if and
when a permit is transferred from one party to another,
but the rule has generally not been adhered to or enforced.
The Rules now impose significantly expanded application
requirements for such modifications. It is not clear as
to why a permit modification is required when a permit is
transferred, as opposed to simply requiring that notice
of the transfer be provided to the Department.
DEP proposed, but did not adopt, requirements for monetary
compensation for activities authorized by most General Permits,
nor did it adopt the proposed requirement that wetland disturbances
authorized by General Permits be “minimized” (meaning
that the applicant must explain to the Department’s satisfaction
why the disturbances being proposed could not be avoided).
DEP has, instead, re-proposed a requirement that mitigation
be required for General Permits 2 (underground utility lines),
6 (isolated wetlands), 10 (minor road crossings), 11 (outfall
structures) and 21 (above-ground utility lines). The proposal
calls for mitigation for the permanent loss and/or disturbance
of 0.1 acres or greater of wetlands or state open waters.
For disturbances of less than 0.1 acres, mitigation will be
required on a case-by-case basis, depending upon whether the
applicant has demonstrated that the activities have been designed
to avoid or minimize impact to wetlands.
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NJDEP has designated 686 additional miles of waterbodies
(out of 910 miles originally proposed) in 14 counties as Category
One (“C-1”) Waters. C-1 Waters are protected from
measurable changes in water quality, and by 300’ water
quality buffers (discussed below). A Notice of Adoption was
signed on May 21, 2008, and will become effective on June
16, 2008.
The newly adopted designations were proposed in May 2007.
They include all or portions of the Walkill River (Sussex
County), the Wanaque Reservoir Tributary System (Passaic County),
the Ramapo River (Bergen County), the Pequannock River and
Tributaries (Sussex and Morris Counties), Pequest River Tributaries
(Sussex and Warren Counties), Lubbers Run (Sussex County),
Musconetcong River (Warren, Morris and Hunterdon Counties),
Rockaway River/Split Rock Reservoir (Morris County), Lamington
River (Hunterdon and Somerset Counties), Stony Brook (Mercer
County), Swimming River Reservoir Tributaries (Monmouth County),
Toms River/Dove Mill Branch/Wranglebrook (Ocean County), Pompeston
Creek (Burlington County), Oldmans Creek (Gloucester and Salem
Counties), Salem River (Salem County) and Maurice River (Salem
and Cumberland Counties).
Waterbodies that were proposed for designation but were
not adopted include sections of the Stony Brook (Mercer County),
the Walkill River (Sussex County) and Black Creek (Sussex
County).
C-1 designation has significant land use implications. C-1
Waters are subject to “Special Water Resource Protection
Areas” (“SWRPAs”) which extend 300’ outward
on either side of a stream as measured from top of bank. Activities
within these areas are authorized only by way of hardship
waivers, regardless of location. They are generally limited
to redevelopment within previously disturbed areas and/or
to activities that are deemed to be unavoidable. The May 21
adoption adds approximately 50,000 acres to the Statewide
SWRPA inventory.
The SWRPA provisions are implemented through the Stormwater
Rules, through DEP’s various Land Use permitting programs,
through the Residential Site Improvement Standards and through
local stormwater ordinances. They apply to any development
that results in the disturbance of one acre or more of land
and/or the creation of one-quarter acre or more of new impervious
cover.
The Notice of Adoption will be published in the New Jersey
Register on June 16, 2008, on which date the new designations
will become effective. DEP has posted
a courtesy copy of the Notice on its website together
with a
map of all newly designated C-1 Waters.
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On May 19, 2008, NJDEP published notice that it has revised
and updated the “Landscape Maps” used to identify
habitat for endangered, threatened and other priority wildlife.
The Landscape Maps, using a combination of aerial photography
imagery and an inventory of actual sightings, depict patches
of land that are considered to be suitable habitat for endangered,
threatened or “priority” wildlife. They are periodically
revised by NJDEP without public input and without advance
notice.
The Department has adopted two different versions of the
Landscape Maps. Version 3.0 applies within an “Extended
Highlands Region,” which includes the entire area established
by the Highlands Act (Preservation and Planning areas), as
well as an additional area extending outward from the Region’s
statutory boundary to the nearest major road. This does not
affect Highlands jurisdiction in any way - it is for Landscape
Map purposes only. Version 2.1 applies in all those areas
of the State outside of the Extended Highlands Region.
Preliminary indications are that the revised mapping may
be more accurate than the previous versions, although some
discrepancies have been noted. The mapping appears to have
reduced the area considered to be habitat for the Wood Turtle
in some areas, while enlarging it in others. Habitat patches
for the Bog Turtle, which is both a State and Federal Endangered
Species, appears to have been enlarged somewhat.
A description of the methodology used to create the maps
and the maps themselves are available through NJDEP’s
website.
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Sokol, Behot & Fiorenzo is pleased to announce that two
of its partners, Joseph Fiorenzo
and Neil Yoskin, are among
New Jersey's 2008 "Super Lawyers." The selection
process, conducted by Law & Politics, is based
on peer recognition and evaluation by practice area, and is
limited to only 5 percent of the State's attorneys.
Mr. Fiorenzo chairs the Firm's Litigation
Practice Group, and is widely regarded as one of New Jersey's
premier trial attorneys. Mr. Yoskin chairs the Firm's Environmental
Practice Group, and has long been recognized as
a leader in his field.
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As co-chair of the American Society for
the Protection of Nature in Israel, Leon
Sokol was featured in the following article:
By EHUD ZION WALDOKS
March 28, 2008
© 2008 the
Jerusalem Post
Environmental activism could be the "special interest"
that unites the Jewish world and reignites Jewish philanthropy,
according to an unpublished report commissioned by UJA-NY
and the CRB Foundation and obtained by The Jerusalem Post.
The CRB Foundation was established by Andrea and Charles
Bronfman in Montreal in 1986.
Not only could Israel and the Diaspora rally around the
environment, but the issue would also help bring in younger
Jews who are rapidly becoming more and more disenchanted
with affiliated Judaism, according to the report.
While a senior development official at the Jewish Agency
agreed on the environment's fund-raising potential, that
potential has yet to be realized, the American Society for
the Protection of Nature in Israel's co-chairman, Leon Sokol,
told the Post on Wednesday.
The report, authored by Jewish Council for Public Affairs
Senior Associate Executive Director Martin J. Raffel late
last year, argued that the environment was becoming an increasingly
attractive issue for a variety of reasons.
"First, the interest in environmentalism and the challenge
of global warming, especially in the wake of [former US
vice president] Al Gore's film An Inconvenient Truth, have
become public affairs concerns of the first order. Reliance
on oil and other fossil fuels causes not only concern about
the health of our environment, but also pours huge amounts
of money into the coffers of Middle Eastern countries, such
as Iran, that pose threats to Israeli, US and global security
interests," Raffel wrote.
Israel's environmental NGOs had also gotten stronger over
the last decade and were now ready to face the country's
environmental challenges, according to Raffel. Moreover,
the local climate had helped give rise to a host of green
technologies potentially marketable all over the world,
he wrote.
To recapture the attention of younger Jews, Raffel argued,
you needed to engage them.
"Taglit and other programs directed toward the younger
generation have resulted in a large new audience potentially
hungry for a more substantive engagement with Israel and
with Jews in other parts of the world. The environment,
not surprisingly because it will be their world to inherit,
is one of the areas of high interest to members of this
generation," he wrote.
Raffel pointed to a convergence of interest among US and
Israeli philanthropists, President Shimon Peres, and Israeli
and American activists surrounding the environment. According
to Raffel, it is both an area where people are beginning
to be willing to donate money and where activists "hunger"
for contacts with their counterparts across the sea.
However, Sokol, who heads SPNI's American development arm,
hasn't found it easier to raise money.
"There are many worthwhile charitable organizations
competing in the US for donations. We have to make the case
to the people interested in Israel and interested in the
environment," he said during a visit here with the
American Society for the Protection of Nature executive
board.
"We're hoping that as awareness of environmental issues
and their global interconnection grows, that will help us,"
he told the Post.
Sokol and the board are here this week to improve coordination
with SPNI. "We are learning what the priorities are
for SPNI so we can coordinate our fund-raising efforts,"
he said.
"The most serious observation so far is the lack of
rain in the Kinneret area and what that is going to mean
in terms of a water shortage going into the summer,"
he said, "I think SPNI can play a major role in water
conservation campaigns."
"We can help out by taking an inventory of water conservation
programs that were successful in the States and fit Israel
best, and making that information available in Israel,"
he added.
Jeff Kaye, director-general of the Jewish Agency's Department
of Resource Development and Public Affairs, told the Post
that the Agency's sole foray into fund-raising for an environment
project "was a very good experience."
"We developed the solar energy park in Nitzana. There
was a very enthusiastic response," he said.
Kaye also felt the potential for environmental giving was
high. "Donors respond to the urgency of matters first.
Emergency situations of basic safety, security, health issues
are usually on top. The need to save a life comes before
everything else," he said.
"Next comes those looking to see long-term impact.
For the Jewish Agency, that is often about educational opportunities,
closing gaps, for instance on the periphery," he continued.
Culture and the arts, and religious-giving rounded out
the list, according to Kaye.
"So long as globally, the environment was a fringe
issue, it was parallel to arts and science. As the planet
becomes more affected by lack of attention to the environment
and the environment is beginning to affect people's health
and impact on people's lives," its attraction as an
issue rises, Kaye noted in line with Raffel's conclusions.
Michael Jankelowitz, spokesman for the Jewish Agency, said
that North American Jewish Federations provided most of
the donations to Israel.
Total charitable donations to the Israeli public and private
sectors from local federations and others abroad totaled
almost $2 billion a year, according to Bank of Israel figures,
Jankelowitz said.
Regarding the environment, he said that small organizations
such as SPNI faced an uphill battle obtaining donations
overseas. People give to big names and large institutions,
he said. The Jewish National Fund had been very successful
rebranding itself as not just about planting trees, he added.
Sokol explained how his organization raised money for SPNI's
projects.
"We have about 2,500 active members, and about 6,500
donors, so we have a base of people with whom we communicate
on a regular basis. We send out a newsletter four times
a year, and we have a Web site. We also run ads in various
magazines.
"People who visit Israel and learn about SPNI when
they visit here then become members when they return,"
Sokol said. Membership is $54 a year for a family.
Some of the donations are earmarked for specific projects.
For example, one major donation improved the Jerusalem Bird
Observatory situated near the Knesset, to make it more hospitable
for migrating birds. ASPNI had also raised money for the
Hula Valley birding center, Sokol said.
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