Bulletin Board Magazine 2021 Volume 3

DEP RELEASES GUIDANCE ON REMEDIATION CASES INVOLVING CONTAMINANTS OF EMERGING CONCERN DEP’s Site Remediation and Waste Management Program recently published guidance addressing certain practical concerns regarding the timely completion of remediation cases involving contaminants of emerging concern (“CEC”), including PFOA and PFAS contaminants. DEP’s Site Remediation Program requires completion of remediation within specific timeframes. For ISRA cases, timely remediation must be completed for the “entire site” addressing all areas of concern. The ability to complete newly regulated CEC remediation within applicable timeframes in the context of sites already undergoing remediation and subject to applicable previously running timeframes has been a challenge. The guidance, available at https://www.nj.gov/dep/srp/ guidance/#contaminants_ec , provides needed regulatory flexibility. Under circumstances where the responsible party and involved LSRP had no basis to know or reason to believe CEC required remediation at the site prior to discovery, the responsible party has the option to addressed the CEC under a new, separate remediation case. In doing so, the new case will be subject to its own distinct timeframes, separate from the timeframes applicable to the previously existing case. For existing ISRA cases that require remediation of the “entire site”, the ISRA case will remain open and a Response Action Outcome for the entire site will be deferred until the CEC remediation is completed. This policy provides timeframe relief for remediating parties and an additional compliance option, as an alternative to making an application for a timeframe extensions, in those situations where more time is needed to complete remediation than is otherwise allowed under deadlines applicable to pre-existing remediation cases.

The decision also reaffirms the limits on developer responsibility for impact fees. TIME TO APPEAL – PRESERVING RIGHTS

45 days “after the accrual of the right to the review, hearing or relief claimed” as required under New Jersey Court Rule 4:69-6(a). This case reaffirms the importance of the procedural requirements to challenge the decisions of a municipal body with respect to land use matters. Bill No. S.3223 regarding electric vehicle charging stations was signed into law July 9, 2021 (P.L. 2021 c.171). For residential development, the bill mandates applications for developments with 5 or more units to include 15% of required parking as “make ready” for electrical vehicle charging. The 15% make ready spaces are to be phased in over 6 years, with one third of those immediately equipped with electric vehicle charging equipment. Applicable parking requirements would be reduced, up to a 10% reduction, with each make ready space counting as two regular parking spaces. The number of make ready parking spaces required at developments having a parking lot or garage vary depending on the amount of off-street parking supplied. The law requires the Department of Community Affairs to adopt a model ordinance to be effective statewide, and the model ordinance was released September 1, 2021. Municipalities may adopt replacement ordinances addressing issues such as setbacks but may not exceed the applicable set aside requirements. The law is not applicable to development of one single family home or retail use having 25 or fewer parking spaces. Electric vehicle supply equipment and make ready parking spaces are treated as permitted accessory uses and structures in all zoning districts and do not require a variance, and applications shall be approved through issuance of a zoning permit. The law took immediate effect. Developers should carefully consider evaluate the requirements of this new law with their professional consultants. ELECTRICVEHICLE CHARGING STATION LAW

Squicciarini v. Borough of Closter

Plaintiff Mauro Squicciarini was the owner of property located in the Borough of Closter. Plaintiff applied for a building permit to construct a single-family residential dwelling on the property. The Borough’s Zoning Officer denied Plaintiff the permit on numerous grounds, including the failure to meet bulk requirements. Plaintiff did not appeal the Zoning Officer’s decision to the Borough’s Zoning Board of Adjustment, instead, Plaintiff applied to the Zoning Board for substantial bulk variance relief to construct the dwelling. After conducting hearings over multiple days, the Board denied the application. Plaintiff did not appeal the Board’s denial of his application. Ten months after the denial, Plaintiff filed a complaint in lieu of prerogative writs against Defendants the Borough, County, and an adjacent property owner who objected to his application. Plaintiff challenged the denial and sought a judgment declaring that he had the right to construct a residential dwelling on the property. The trial court granted the Defendants’ motions for summary judgment, and denied Plaintiff’s motion. The trial court found that, amongst other things, Plaintiff’s action was time-barred. Plaintiff appealed to the Appellate Division, which affirmed the trial court’s decision on the motions. The appellate court found that Plaintiff failed to appeal the zoning officer’s decision denying him the issuance of a building permit to the Zoning Board within 20 days, as required by N.J.S.A. 40:55D-72(a), and he could not circumvent his failure by instead seeking relief through an action in lieu of prerogative writs. The court also found that Plaintiff’s prerogative writ action was time- barred because he failed to file same within

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