Gibbons Law Alert
The International Council of Shopping Centers (ICSC) annual PA/NJ/DE Idea Exchange is coming up soon. Although the show usually is held in mid-September, this year it has been pushed back to October 12-13. As in the past, the show will be held at the Pennsylvania Convention Center and will provide an opportunity for real estate professionals to network and focus on getting deals done.
While much of the uncertainty regarding affordable housing requirements in NJ remains, the questions involving the applicability and future of the 2.5% nonresidential development fee were answered yesterday. Acting Governor Kim Guadagno signed into law legislation that reestablishes the exemption from the fee for eligible projects. Perhaps the most broadly applicable exemption provides that projects which obtain preliminary or final site plan approval prior to July 1, 2013 are not subject to the development fee provided that building permits are issued by December 31, 2015.
On August 18, 2011, DEP Commissioner Bob Martin and DOT Commissioner James Simpson released a set of guidelines to revamp and apply consistency to New Jersey’s land leasing process for State Lands. A panel of ten State Agencies was convened to analyze the current lease policies and compile a Lease Valuation Report that offers recommendations on leases for Tidelands; Linear Corridor Projects (other than Tidelands); Publicly Bid, Market-Based and Nominal Fee leases; Telecommunications Towers and Antennas, Aquaculture, and leases Related to Transportation Corridors. The guidelines will be adopted by all State agencies, with most of the guidelines implemented immediately.
On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.
The New Jersey Appellate Division delivered a rebuke to the state’s Department of Environmental Protection (DEP) on August 1, finding that DEP’s Commissioner ignored undisputed evidence and made critical legal errors in holding that two development projects did not qualify for an exemption from the strict requirements of the Highlands Water Protection and Planning Act. The court’s decision in Lakeside Manor v. State of New Jersey Department of Environmental Protection reversed the Commissioner’s decision, finding that the developer had satisfied all statutory requirements for the exemption.
On the weekend of June 24-26, 2011, the New Jersey Institute of Continuing Legal Education (“NJICLE”) in cooperation with the New Jersey State Bar Association (“NJSBA”), and New Jersey Corporate Counsel Association, held its annual Environmental Law Section Forum Weekend (“the Forum”). Taking place in Avalon, New Jersey, the Forum featured three days of seminars covering various hot-button environmental topics including, Funding for Remediating Sites, Vapor Intrusion, the LSRP Program, Non-Governmental Organizations’ Perspectives on Issues and Resolutions, the well-known NJDEP v. Occidental case also referred to as the Lower Passaic River litigation, Climate Change, and rounded out the weekend with two programs on Ethical Issues including Alternative Fee Arrangements and Multi-Party Settlements.
This week marks both the one-month mark since the International Council of Shopping Centers’ (ICSC) annual RECON conference, as well as the end of the first half of 2011. RECON attendance surpassed 30,000 attendees for the first time since 2008, but still remains substantially off attendance levels reached several years ago. Although there was a fair amount of activity at this year’s show, particularly in the retail area on the second floor of South Hall, impressions of the climate for getting deals done were mixed, much like the economic indicators which have been circulating in recent months. Nevertheless, cautious optimism seems to be a fairly common theme in the retail sector for the remainder of 2011, and somewhat more enthusiastic optimism for 2012 and beyond.
On Monday, January 3, 2011, the Environmental Protection Agency published in the Federal Register, 76 Fed. Reg. 5,370 (Jan. 31, 2011), a Notice of Opportunity for Public Input on the Potential Addition of Vapor Intrusion Component to the Hazard Ranking System (the “HRS”). Should this proposal become a rule it would add another contamination pathway to analyze in connection with listing sites on the National Priorities List (the “NPL”).
The Brownfield Reimbursement Program (the “Program”), a New Jersey State initiative designed to reimburse developers up to 75% of costs incurred to remediate a brownfield site, has run out of money and is temporarily shut down. This development arrives on the heels of a recent New Jersey Department of Environmental Protection (“NJDEP”) announcement that, effective May 3, 2011, applications to the Underground Storage Tank Fund, a similar initiative to help homeowners remove USTs, will not be reviewed or processed due to insufficient funds.
On Thursday, June 9, 2011, Russell Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will moderate a panel, “State of the Market: Drill down on all facets of development, finance, law and economic development” at ScheinMedia’s 5th Annual New Jersey Real Estate Conference. The New Jersey Real Estate Conference has become the business standard for the state’s most influential professionals from the real estate, finance, legal, and governmental communities.