Bulletin Board Magazine 2017 Volume 3

Legal/Legislative

potential to significantly impact development and redevelopment of contaminated and brownfield sites. Of note, DEP has proposed amendments intended to strip away traditional corporate protections against personal liability, and to impose liability on individual corporate members involved with remediation activities, through among other things revised certification signature provisions required for remediation documents. The amendments will curtail the use of alternative fill at contaminated sites, requiring specific DEP approval for placement of any alternative fill above existing grade. Additionally, the proposed amendments will expand the obligation of an LSRP to withdraw an RAO, even if that LSRP is no longer retained as such, re-opening the remediation case. While RAO’s are currently subject to re-openers, a retained LSRP will be required to withdraw an RAO within 30-days of learning that a remediation “may” no longer be protective if the LSRP is unable to confirm protectiveness in that truncated time frame. If the LSRP who issued the RAO is no longer

retained, she must withdraw the RAO. This change, if implemented, is likely to significantly increase the frequency of RAO withdrawals, creating uncertainty in the development process and leading to a host of practical concerns and issues for buyers and sellers of development parcels, their lenders and consulting professionals.

All multi-residence buildings that are not a part of redevelopment must have at least one roadway one foot above DFE. Additionally, whether redevelopment or new development, roadways or parking area serving a multi-residence building in a fluvial flood hazard area cannot be more that 1-foot below DFE. DEP references emergency vehicle access as justification for this limitation. Site Remediation Rules DEP released its long promised amendments to the Unregulated Heating Oil Tank (UHOT) program. However, the proposed amendments go well beyond UHOT and if adopted will result in various changes to the Administrative Requirements for the Remediation of Contaminated Sites and Technical Requirements for Site Remediation applicable to remediation cases under SRRA, the Spill Act, Brownfield Act, and ISRA. Unlike many recent rule proposals, DEP did not solicit stakeholder input prior to release of the non-UHOT portion of the proposal. Several of the proposed amendments have the

Legal/ Legislative By Michael J. Gross, Esq. and Steven M. Dalton, Esq. Michael J. Gross is a Partner & Chair, and Mr. Dalton is a Partner of Giordano, Halleran & Ciesla, P.C.

STAFFORD LANDFILL REDEVELOPMENT I/M/O DEP Partial Release of Conservation Restrictions

DEP RULE PROPOSALS

Michael J. Gross

Bulletin Board | 25 | www.shorebuilders.org approval of a water dependent development; compatibility of surrounding development; DEP recently proposed amendments to rules applicable to its Land Use permitting and Site Remediation programs. Each rule proposal was published July 17, 2017 and has a public comment period expiring 9/15/17. NJBA intends to submit comments to DEP. Builders, developers and land owners should consult with their environmental professionals to assess what impact the proposed rule changes may have on planned development. Coastal Zone Management Rules This rule proposal follows DEP’s July 2015 amendments that consolidated the procedural Coastal Permit Program Rules and the substantive Coastal Zone Management rules into a one comprehensive set of regulations applicable to coastal development. The 2015 amendments focused primarily on the procedural provisions of the Coastal rules, while the current proposal addresses limited substantive provisions. Amendments to the Freshwater Wetland and Flood Hazard rules are also proposed. Of note, the Filled Water’s Edge Rule is proposed to be amended to allow applicants to demonstrate that water dependent use is not feasible at certain sites enabling DEP to authorize non-water dependent development. Feasibility factors include the length of water frontage on the site; corresponding area of upland to support water dependent use; the presence of special areas between the upland and navigable water that may preclude

the existence of contamination that may prevent implementation of a water-dependent use; and factually-specific conditions unique to the property that may be result in peculiar

This case involved attempts by several non-governmental organizations (NGO) to derail a solar energy facility approved for development on a closed and capped former landfill located in Stafford Township. In an unpublished decision, the Appellate Division rejected the NGO’s challenges, concluding sufficient evidence supported the decisions of DEP and the State House Commission to remove certain restrictions on the landfill to allow the solar redevelopment to occur.

or exceptional practical difficulties in development of water-dependent use.

The Scenic Resources and High-Rise Structures rules will be combined. High Rise structures will still be more strictly regulated, but some provisions currently applicable only to High Rise structures, such as the requirement that development be in character with surrounding development heights and residential densities or be in character with municipal comprehensive development patterns, will be made applicable to non-High Rise structures. The Coastal High Hazard rule is proposed to be amended to provide a limited allowance for development in V-Zones, applicable primarily to development in densely developed areas such as the Hudson River Waterfront Area and Atlantic City. The Flood Hazard Rules amendments will facilitate certain residential redevelopment in inland fluvial flood hazard areas. Under the current rules, sites developed with multi-residence buildings (building serving 3 or more units) must be served by an existing or new roadway elevated one-foot above the applicable flood hazard design flood elevation (DFE). Under the proposal, an exception exists for multi-residence redevelopment if it is not feasible to construct an access roadway that meets the elevation requirement.

Steven M. Dalton

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