Bulletin Board Magazine 2018 Volume 1

Legal/Legislative

existence of contamination that may prevent implementation of a water-dependent use; and factually-specific conditions unique to the property that may result in peculiar or exceptional practical difficulties in development of water-dependent use. The Coastal High Hazard Rule was 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. DEP did not adopt the proposed amendments to its Scenic Resources and High-Rise Structures rules. The proposal called for the two rules to be combined, which would have made some provisions 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, also applicable to non-High Rise structures. Given the volume of comments submitted, including comments questioning DEP’s authority over local zoning and land use issues, the amendments were not adopted. However, DEP cautioned that it will further consider how to address scenic resources issues. The Department also did not adopt proposed rules related to construction of trails, boardwalks and multi-use paths, and instead will convene a separate stakeholder process. Amendments to the Flood Hazard Rules were adopted that will facilitate certain residential redevelopment in inland fluvial flood hazard areas. Under the prior rules, sites developed with multi-residence buildings (building serving 3 or more units) had to be served by an existing or new roadway elevated one-foot above the applicable flood hazard design flood elevation (DFE). Under the amended rule, an exception exists for redevelopment of sites with multi-residences if it is not feasible to construct an access roadway that meets the elevation

requirement. All multi-residence buildings in fluvial flood hazard areas that are not a part of redevelopment must have at least one roadway one foot above DFE. Additionally, whether redevelopment or new development, the proposed roadway or parking area serving a multi-residence building in a fluvial flood hazard area cannot be more that 1-foot below DFE. The Department references emergency vehicle access as justification for this limitation. FreshwaterWetland Rules DEP adopted amendments to its Freshwater Wetland rules effective December 18, 2017. Various technical issues were addressed in the amendments, though the overall nature and framework of DEP’s wetland regulatory program remains unchanged. A positive change was adopted involving transition area averaging plan conditions. DEP applied its prior rules to require the recording of a conservation restriction applicable to all wetland and transition area on a site as a condition of a TAW averaging plan approval. Under the amended regulations, only the transition area compensation area of an averaging plan approval must be deed restricted; though DEP has discretion to require broader restriction on a case-by-case basis. Additionally, DEP adopted amendments to remove the 0.5 acre limit on combination of General Permit 6 for isolated wetlands and other wetland GP’s.

distinct from any related but separate process of condemnation. Accordingly, the municipality was not required under the LRHL to make a judgment as to the future exercise of power of eminent domain. Additionally, the Court was satisfied that there was sufficient evidence in the record to support the redevelopment area designation. Designation of a parcel as a redevelopment area is often a politically-charged process. This case solidifies that assertions of speculative future development plans will not negate a duly implemented redevelopment area designation. Additionally, the LRHL does not require local boards to opine upon the exercise of eminent domain in determining whether a property is an area in need of redevelopment. DEP recently adopted amendments to rules implementing several of its Land Use permitting programs. Builders, developers and land owners should consult with their environmental professionals to assess what impact the adopted rule changes may have on planned development. Coastal Zone Management Rules This rule proposal was adopted and became effective January 16, 2018. The amendments addressed substantive provisions of the Coastal Zone Management Rules. Limited provisions of the Freshwater Wetland and Flood Hazard rules were also revised. Of note, the Filled Water’s Edge Rule was amended as proposed 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 approval of a water dependent development; compatibility of surrounding development; the DEP RULE PROPOSALS

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.

REDEVELOPMENT AREA DESIGNATION

On appeal from the trial court’s decision affirming the redevelopment designation, the Appellate Division noted the significant discretion existing under the law with respect to municipal decisions regarding redevelopment designations. “So long as the blight determination is supported by substantial evidence in the record, a Court is bound to affirm that determination.” The court’s review is not, however, a rubber stamp. Here, the court rejected plaintiff ’s arguments regarding defects in the process followed by the municipality in designating the property as a redevelopment area. The requirements of the LRHL intended to protect property owner interests were adhered to by the municipality. The LRHL does not require municipalities to permit cross-examination of witnesses at public hearings concerning redevelopment designations. Additionally, the council did not abuse its discretion in deciding not to permit plaintiff to present testimony from an architect regarding potential future plans for development of the property. It was appropriate for the Council to limit the plaintiff ’s testimony to the presentation of fact regarding current property conditions and the issue of whether the property met the criteria for a blight designation. The Court also rejected procedural arguments regarding the question of whether the Planning Board had sufficient knowledge that its determination of whether the property was an area in need of redevelopment had implications regarding potential condemnation. The Court noted that the determination of whether a property is an area in need of redevelopment is

Michael J. Gross

Bulletin Board | 27 | www.shorebuilders.org refusal to purchase the plaintiff ’s property. The Council accepted the Planning Board’s recommendation for redevelopment designation over the objection of plaintiff in 2014. Tradewinds Marina, Inc. v.Toms River The Appellate Division in an unpublished decision, affirmed the designation of a marina parcel as an area in need of redevelopment. Tradewinds Marina, Inc. (“Tradewinds”) owned the subject property located in Toms River and challenged the redevelopment designation made pursuant to the Local Redevelopment and Housing Law (“LRHL”). The property, historically a marina, was significantly damaged during Superstorm Sandy. The property fell into disrepair and certain vessels were abandoned resulting in environmental conditions that led to administrative penalty actions instituted by DEP and NJDOT. DEP’s administrative action was resolved. Riverfront Property Associates, LLC was designated as a conditional redeveloper for a redevelopment study area investigation implemented by the municipality that included the property. The study concluded that the property met the criteria for designation as an area in need of redevelopment under the LRHL. The redevelopment area designation was approved following applicable procedures. The property owner opposed the designation, asserting that a conflict of interest existed with respect to the designated redeveloper, who had an interest in an entity that had a right of first

Steve Dalton

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Bulletin Board | 28 | www.shorebuilders.org