Bulletin Board Magazine 2021 Volume 2

to standards applicable or approved by DEP at the time of completion of the remediation may be responsible for additional remediation if DEP subsequently adopts a more stringent remediation standard that differs by an Order of Magnitude from the level or concentration of the contaminant at the subject parcel and if such person does not qualify for the affirmative innocent purchaser defense to liability under the Spill Act. Some of the amended remediation standards adopted by DEP differ from the prior standards by an Order of Magnitude. For example, the soil remediation standard for ethylbenzene, a gasoline component and common contaminant, has changed by an Order of Magnitude. In its adoption document, DEP takes the position that Order of Magnitude changes in prior remediation standards apply even in the context of conversion of prior screening levels (which were not adopted as standards) to remediation standards, on the theory that such screening levels were utilized by responsible parties and LSRP’s to establish standards on a site specific basis, case-by-case basis. The amended rules establish remediation standards for new exposure pathways. Industry groups raised the concern that this action may implicate the potential for the re- opening of previously completed remediation cases pursuant to N.J.A.C. 7:26C-6.4(a)3. DEP responded to such comments in the adoption document as follows: “[i]t is not [DEP’s] intent to reopen every site that has a [FRD] to evaluate every contaminant for the [new] migration to ground water exposure pathway and indoor air vapor intrusion exposure pathway. However, [DEP] requires the [responsible party] to evaluate those contaminants found at closed sites that are subject to the order of magnitude provision.” Thus, in cases where a new exposure pathway is regulated, an Order of Magnitude change in a remediation standard will remain the basis for potential re-opener and the involved LSRP will need to assess whether the previously implemented remedy remains protective.

Bulletin Board | 20 | www.shorebuilders.org BLSJ filed an action in lieu of prerogative writs challenging the Ordinance. The trial court In a recent case, the Builders League of South Jersey (“BLSJ”) successfully challenged the Borough of Haddonfield’s (“Haddonfield”) adoption of an ordinance governing stormwater management (“Ordinance”) as exceeding its authority under the Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-1 et seq., and the Residential Site Improvement Standards (“RSIS”), N.J.A.C. 5:21-1.1 et seq. The Ordinance at issue was made applicable to “all new homes and commercial buildings,” and required an extensive stormwater review and mitigation measures in compliance with DEP’s stormwater management regulations. Under DEP regulations, such review applies if a development, including a single family dwelling or duplex, is a “major development”. The Ordinance imposed its requirements even in the absence of a major development. In cases where the amended rules implicate re-opening a prior remediation case, it is anticipated that evaluation of potential additional remediation obligations will occur at the time of submission of biennial certifications for sites that are remediated to a restricted or limited restricted use remediation standard and are subject to a remedial action permit. For unrestricted use remediation sites, evaluation will likely be market driven, being raised by lenders or purchasers conducting due diligence in the context of potential transfers involving real property. Given the scope and potential implications o f the amended rules in the context of existing and previously closed remediation cases, parties with responsibility for remediation sites are encouraged to consult with their professionals to carefully consider the potential impacts of this rule. MUNICIPAL STORMWATER ORDINANCE INVALIDATED BLSJ v. Borough of Haddonfield

denied Haddonfield’s motion and granted BLSJ’s motion for summary judgment. The trial court held that Haddonfield exceeded its legislative authority in enacting the Ordinance and therefore the Ordinance was invalid. The trial court found that the Ordinance, in effect, subjected all new home construction to site plan review in direct conflict with the MLUL, which explicitly exempted detached one- and two-unit dwellings from site plan review. The court also found that the RSIS authorized stormwater management measures for “major developments” only, however, the Ordinance improperly required “all residential developments, including single-family and two- family homes, to comply with its stormwater management requirements.” The Appellate Division agreed with the trial court and affirmed. Developers should carefully evaluate municipal ordinances that set forth standards for stormwater review to confirm the ordinance comports with DEP requirements applicable to major developments and the municipality’s scope of authority under the MLUL and RSIS. RELIEF FROM USE VARIANCE TIME CONSTRAINTS Plaintiff Frank’s Realty Company (“Plaintiff”) was the owner of developed property in Vineland. Defendant Village Super Market, Inc. (“Village”) was a tenant operating a supermarket on Plaintiff’s property. Village entered into a contract to purchase property (“Property”) directly adjacent to Plaintiff’s property and on which Village intended to construct a larger supermarket. The Property was zoned only for agricultural uses. Village applied with the Vineland Zoning Board of Adjustment (“Board”) for a use variance and approval to construct the supermarket. The Board approved Village’s application and memorialized its decision in an April 18, 2018 resolution. Frank’s Realty Co. v. Vineland ZBA