Bulletin Board Magazine 2020 Volume 1

Legal/Legislative

residence. Margate authorized the work and objectors appealed to Margate’s Zoning/ Planning Board to stop construction. They asserted that a 1978 declaration of covenants and restrictions (the “Declaration”) required approval of a majority of the development’s homeowners, which Iannuzzi had not obtained. The development was constructed such that ocean views were protected for all 20 unit owners. In response to the complaint, Iannuzzi alternatively sought to rebuild the townhouse to the original footprint, elevated to meet flood-safety standards. The trial court overturned Margate’s construction approval and rejected the alternate plan, finding approval was required by a majority of unit owners because of the existing Declaration. The trial court held that the Act did not apply because the townhouse was not a “structure” under the Act. In August 2017, the Legislature passed two significant amendments to the Act. First, row houses and attached town houses owned in fee simple were added to the definition of “structure. Second, the amendment provided that deed restrictions cannot be enforced to prevent elevation of a structure damaged by Sandy. Based on the amendments to the Act, Iannuzzi and Margate appealed the trial court decision. The Appellate Division upheld the denial of Iannuzzi’s application to construct a free-standing dwelling, but reversed the decision in part as to the proposed town house reconstruction. Notwithstanding the Declaration, the Act as amended allowed Iannuzzi to reconstruct and elevate the pre- existing townhouse to meet flood-safety standards without obtaining variance relief or site plan approval. The court confirmed “the legislative history leaves no room for doubt as to the Legislature’s continuing intent to sweep away obstructions to flood-safe construction.” The Act “overrides the Declaration and any local development regulations” that might

other prevent elevation of the townhouse. As amended, the Act applies to the townhome and permits elevation to the flood-safety standards. Not only does the Act override the local development regulations, it also overrides limitations set forth in the Declaration to the extent that they preclude compliance with the flood-safety standards. The court also rejected plaintiffs’ argument that as a condition of approval, Iannuzzi should have been required to reduce square footage of the home to maintain the pre-existing height. The Act allows building elevation while maintaining the original dimensions, including the original amount of living space. An owner is not required to sacrifice square footage to accommodate the elevation. This case confirms the Act’s allowance for reconstruction of Sandy-damaged properties to meet flood-safety standards “as of right” without municipal planning approval, including townhouses with shared walls, even in the face of conflicting deed restrictions. REZONING/AFFORDABLE HOUSING S/K Old York Road Assoc. v. Branchburg Plaintiff objectors challenged a rezoning ordinance adopted by Branchburg to comply with affordable housing mandates and preliminary site plan approval issued by Branchburg for a 100-rental unit development on the subject property. The Appellate Division affirmed dismissal of Plaintiff ’s complaint upholding the development approvals under the amended zoning plan.

persons to obtain relief where its legal rights are affected by a statute, municipal ordinance, or contract. However, the Declaratory Judgment Act does not provide the Law Division with jurisdiction to review the final decision of an administrative agency. The Appellate Division “has exclusive jurisdiction to consider appeals from final decisions or actions of a State administrative agency.” R. 2:2-3(a)2. Thus, the issues raised by plaintiffs were only appropriate for review by the Appellate Division following DEP’s final decision to issue the amelioration authorization. The court stressed that Salas and DEP had settled their dispute over whether a regulatory taking occurred and no taking claim was pending over which the Law Division would have had jurisdiction. Because the Law Division lacked jurisdiction to consider the plaintiff ’s challenge to DEP’s decision to reconsider the denial of Salas’ wetland application, denial of intervention was appropriate. The ability to obtain alternative approval from DEP in the form of an amelioration authorization may provide an owner with critical relief from strict application of the FWPA when a taking claim is implicated. The Salas decision confirms the viability of the amelioration authorization process. FLOOD ACT ELEVATIONS - In a recent decision, the Appellate Division retroactively applied amendments to the Flood Hazard Area Control Act, N.J.S.A. 58:16A-103 (the “Act”), allowing a townhouse owner to rebuild and elevate the townhome after Hurricane Sandy notwithstanding deed restrictions precluding construction. Iannuzzi sought to demolish a beachfront townhome destroyed by Sandy and replace it with an elevated and enlarged free-standing TOWNHOMES Gross v. Iannuzzi

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

Stormwater Management – Green Infrastructure

AMELIORATION AUTHORIZATION/TAKINGS Salas v. NJDEP, et al.

Michael J. Gross

Bulletin Board | 33 | www.shorebuilders.org determination or approval from DEP prior to the implementation date of the amended rules. DEP published notice of adoption of its Green Infrastructure Stormwater Rule in the New Jersey Register on March 2, 2020. A discussion of the rule proposal can be found in the 2018 – Volume 4 edition of the Bulletin Board. The amendments followed an extended public stakeholder and review process spanning several years. The amended rules replace the nonstructural stormwater management strategies provisions of the prior rules with specific green infrastructure BMPs to address stormwater quality and quantity. The amended rules have a delayed implementation date and will become effective March 2, 2021, one year after adoption, to allow sufficient time for municipalities to conform stormwater ordinances and to allow a phase in period for pending projects. Projects in the pipeline already designed in accordance with the existing rules should be in a position to avoid having to redesign, but will need to take diligent action to obtain approval or submit applications and be declared administratively and technically complete prior to the March 2, 2021 effective date. For those in the early planning stage of development, critical decisions will need to be made whether to design in accordance with the amended green infrastructure provisions. If an approval is being sought for a project with a stormwater management system that does not incorporate green infrastructure, immediate action should be taken to ensure sufficient time to obtain a completeness

This matter involved DEP’s grant of an Amelioration Authorization for impacts to freshwater wetlands to avoid a taking claim. Salas’ property was almost entirely constrained by wetlands and buffers and DEP denied Salas’ wetland permit application. The Freshwater Wetlands Protection Act (“FWPA”) gives DEP authority to reconsider its denial of an application and grant an amelioration authorization to avoid a taking. In this case, Salas modified its project to reduce and minimize impacts to wetlands, and DEP agreed to issue an amelioration authorization. A series of legal challenges ensued by third party objectors who sought to stop the development by intervening an inverse condemnation action brought by Salas and by filing a declaratory judgment action challenging DEP’s reconsideration of the denial. Plaintiffs argued among other things that Salas and DEP had not established the basis for a taking claim and, thus, it was inappropriate for DEP to reconsider denial of the wetland permit. They sought to enjoin the reconsideration process and challenged DEP’s decision to grant approval. The Appellate Division upheld the trial judge’s dismissal of the plaintiffs’ claims. The trial court lacked jurisdiction through a declaratory judgment action to review the DEP’s decision to reconsider its permit denial. The Declaratory Judgment Act, N.J.S.A. 2A:16-50-62, allows

Steve Dalton

Bulletin Board | 34 | www.shorebuilders.org