Doin’ The Dunes – Signing Off

Posted on June 23, 2016 by Joseph Manko

In April, I reported on Supreme Court Judge Julio Mendez’ 65-page Opinion upholding the authority of the New Jersey Department of Environmental Protection (“NJDEP”) to construct dunes along the shoreline in Margate City, New Jersey – “absent an appeal.”

Well, after three years of legal challenges, the fat lady has finally sung and Margate’s  Commissioners have unanimously thrown in the proverbial beach towel by deciding not to appeal Judge Mendez’ opinion.  The US Army Corps of Engineers has announced its plan to award a contract in July and commence construction in the fall.  Once completed, the “missing link” will complete Absecon Island’s 8.1 mile dune project and finally respond to Hurricane Sandy’s damage to New Jersey’s beachfront. 

Doin’ the Dunes – Final Installment

Posted on April 20, 2016 by Joseph Manko

Last month when the Ocean County, NJ challenge to the New Jersey Department of Environmental Protection’s (“NJDEP”) authority to implement dunes for shore protection was dismissed, I wrote that the decision could very well be precedential for similar challenges in other New Jersey counties. 

And so it was. In a 65-page opinion, Superior Court Judge Julio Mendez also upheld the DEP’s authority to construct dunes in the City of Margate (Atlantic County) as being neither “arbitrary or capricious” nor an “abuse of power.” The opinion recognized the US Army Corps of Engineers’ (“Corps”) 6-year study and the need to be better prepared for coastal storms such as Hurricane Sandy in 2012.  With this ruling – absent an appeal – the DEP will proceed to obtain the necessary easements through the eminent domain process (a prior attempt to do so via an administrative order having failed) with the appropriate compensation paid to the affected beachfront owners.

Judge Mendez acknowledged that the dunes on the oceanfront would not resolve flooding concerns to the bayfront properties nor obviate some protection afforded by seawalls and bulkheads.  Interestingly, he found that the dunes in the adjacent City of Ventnor had not only protected Ventnor’s beaches but also expanded the beaches in Margate, and that the dunes in Margate would be protective of its coastal properties and was therefore not arbitrary or capricious.  

Doin’ the Dunes – Part IX

Posted on April 19, 2016 by Joseph Manko

Last month, while New Jersey Superior Court Judge Julio Mendez was considering Margate’s challenge to the authority of the New Jersey Department of Environmental Protection (“DEP”) to condemn City-owned lots on which to build dunes, New Jersey Superior Court Judge Marlene Lynch Ford dismissed a similar challenge by 28 oceanfront property owners in Ocean County, NJ.

In her decision, she ruled that (1) DEP’s condemnation activities were authorized to “protect the state’s fragile coastal system and [afford] public access” and (2) the taking of the requisite coastal acreage to do so was as a lawful use of that authority, provided that the eminent domain process of compensating affected property owner was followed, which she found to be the case in this instance. 

Although it would appear likely that this decision should have significant precedential effect on the other pending challenges, it should be pointed out that the theory in other cases includes not only a challenge to DEP’s authority, but the reasonableness of constructing dunes on the beachfront as opposed to other “shore protection projects.”  In fact, although she dismissed the challenge to DEP’s authority to condemn, Judge Ford granted a hearing to other homeowners who claim that DEP acted arbitrarily because their sea walls eliminated the need for dunes. 

And so, although the authority of DEP to use eminent domain for shore protection would appear to be judicially blessed, the manner in which it is does so remains subject to challenge. 

So, as always, stay tuned.  

Doin’ the Dunes – Part VIII

Posted on February 3, 2016 by Joseph Manko

In my last blog, I summarized the substantive arguments made by the City of Margate’s attorneys in their countersuit against the New Jersey Department of Environmental Protection’s eminent domain proceedings, which were filed in state court—the federal court overturned DEP’s attempts to proceed via administrative orders.  The court will have to consider: (a) is dune construction a reasonable use of the state’s “taking” powers; or (b) were alternative storm protections – e.g., sea walls and wooden bulkheads – more reasonable?

While awaiting a ruling by the court after the upcoming February 4th hearing, there have been two new developments:

1.                  Seventeen residents of Point Pleasant Beach in Ocean County have filed a suit against DEP, claiming the agency’s taking of their beaches was a “land grab” of the residents’ private property destined to require future maintenance expenses and possible development of boardwalks, public restrooms, etc.  These cases are scheduled for hearings next month. 

2.                  The super storm/blizzard over the January 22-24th weekend again left Margate’s streets flooded.  Governor Christie took a “serves you right” position, whereas Margate officials blamed the flooding on the bay, not the ocean. 

As I “go to press,” we’ll soon see whether the plaintiffs’ “we don’t need dunes” position “holds water” (pardon the pun). 

Doin the Dunes – Part VII

Posted on December 11, 2015 by Joseph Manko

In my latest blog, I related that New Jersey Superior Court Judge Julio Mendez had taken under advisement the City of Margate’s request for an evidentiary hearing on the reasonableness of the state’s condemnation of easements on 87 City-owned lots.  The request had stressed the public’s express opposition to dunes (2 referenda) and the alleged superiority of bulkheads and seawalls for both bay and ocean front properties. 

Well, the Judge ruled on Tuesday, December 8, to grant Margate’s Motion to hear its argument in a February hearing on alleged abuse of the state’s eminent domain power.  Margate also challenged the Corps of Engineers’ reliance on a 20-year old study, claiming that the study was outdated and its beach protections were as good as, if not better than, dunes. 

If Margate’s arguments are successful, Governor Christie’s 127 mile Sandy Relief Act program would have an approximate 1½ mile gap in continuity (its neighbors Ventnor and Longport have agreed to give the state easements to build dunes). 

Next month look for the lowdown on Judge Mendez’ decision in Part 8 of my series, “Doin the Dunes.”  

What’s Historic Preservation Got to Do With Environmental Law?

Posted on December 7, 2015 by John A. McKinney Jr

To answer the question posed above - in New Jersey, plenty!  Under several New Jersey environmental statutes regulating, inter alia, development, the least that can happen if historic preservation issues are overlooked is a delay of the project.  The worst is a criminal indictment of the developer and/or its consultants.

Regulations implementing the Coastal Area Facility Review Act (N.J.S.A. 13:19-1 et seq.), the Waterfront Development Law (N.J.S.A. 12:5-3), the Wetlands Act of 1970 (N.J.S.A. 13:19-1 et seq.)  and the Freshwater Wetlands Protection Act (N.J.S.A. 58:10A-1 et seq.) in effect require a historic preservation analysis in order to obtain approvals.  Using as an example the Freshwater Wetlands Protection Act Rules, (N.J.A.C. 7:7A-4.3(b)5), an applicant must first determine if the property to be developed and the surrounding properties that may be adversely affected are listed on the New Jersey or the National Register of Historic Places listed or are eligible for listing.  “Adversely affected” can be as little as compromising the view from a neighboring property.

            Anyone can look at the registers of historic places to see if a property is listed.  More often, properties are not so listed.  But an analysis cannot stop there, since an applicant must determine if the property is “eligible for listing”.  That often takes an analysis, not by an environmental engineer, but by a “cultural resources consultant” working with the developer’s counsel.  Determining if a property is eligible for listing is more of an art than an engineering analysis, as illustrated by the following highly subjective criteria for evaluation which are set forth in rules implementing the New Jersey Register of Historic Places Act (N.J.A.C. 7:4-2.3(a)(1)):

Criteria for Evaluation:  The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:

(Criterion A) That are associated with events that have made a significant contribution to the broad patterns of our history; or

(Criterion B) That are associated with the lives of significant persons in our past; or

(Criterion C) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

(Criterion D) That have yielded, or may be likely to yield, information important in history or prehistory.

As you can see from reading the criteria above, concluding that a property is or is not eligible for listing is a whole lot harder than determining if it is within a specific distance from the middle of a stream or from the edge of a wetland.  However, failure to make the determination correctly can result in significant delays and penalties. 

The upshot?  Before the applicant can obtain the necessary state approval, the applicant must demonstrate that an unlisted property is or is not eligible for listing.  That in itself can be a resource intensive effort. If it is eligible, the lawyer’s and cultural resource consultant’s real work is just beginning.  Describing that work and the legal issues arising from it may be the subject for a future blog post. 

DOIN’ THE DUNES – PART VI

Posted on November 30, 2015 by Joseph Manko

As we left off, the New Jersey Supreme Court ruled that in obtaining easements to build dunes, the amount of compensation for the partial loss of ocean view would have to take into account a credit for the benefit afforded by the dunes’ protection. 

When the New Jersey Department of Environmental Protection, in carrying out Governor Christie’s program to construct a $3.5 billion dune system to protect its 127 mile coastline, decided to acquire the necessary easements by administrative actions, the City of Margate in Atlantic County challenged the failure to proceed by eminent domain:  U.S. District Judge Bumb agreed with Margate and invalidated this mechanism, ordering the Department to proceed with eminent domain in state court. 

Ten months later, New Jersey Superior Court Judge Mendez took under consideration two issues:  (1) the reasonableness of the use of eminent domain to acquire easements from 10 private lot owners and 87 city-owned lots, and (2) instead of his making a summary ruling, the need to allow Margate to have an evidentiary hearing, citing the two referenda in which Margate’s voters voted to oppose the dunes. 

Once Judge Mendez rules, I will update this matter, keeping in mind that the author owns a 10th floor condominium in Margate, the Municipality Governor Christie calls the most “selfish” municipality in New Jersey.  

CERCLA-LIKE ALLOCATIONS FOR DAM REPAIRS

Posted on January 7, 2015 by John A. McKinney Jr

Much of my legal work deals with hazardous material remediations driven by CERCLA or state equivalents. The allocation of these costs among liable parties, in court or out, is generally conceded to be expensive and ultimately unsatisfying to most of them.  I never thought I would see it in another area of environmental law but now I have.

Dams are regulated in my state by the New Jersey Department of Environmental Protection.  It is a big job.  Most of our lakes and ponds are dammed streams or rivers.  At one point New Jersey had 196 dams where a failure might result in probable loss of life and/or extensive property damage.  50 of these need repairs at an estimated cost in excess of $33 million. There were also another 396 dams where failure might result in significant property damage. 317 are in need of repair to bring them up to state standards at a cost in excess of $126 million.  Who pays for the necessary repairs to these dams and how?

A case decided by our intermediate appellate court on January 2nd of this year answers this question in a most CERCLA-like way.  In New Jersey Department of Environmental Protection v. Alloway Township the Appellate Division interpreted provisions of the Safe Dam Act (N.J.S.A. 58:4-1 to 4-14).  This Act “casts a ‘broad net’ of liability … so that its remedial purpose … is served” by imposing “significant obligations” on the owner or person having control of a reservoir or dam.  At issue in this case was a privately owned lake created by an earthen dam that now has township road on top which is supported by a county bridge and culverts that are part of the dam.

The New Jersey Department of Environmental Protection (“NJDEP”) brought an action against the person owning the property below the lake and the dam, the township that maintained the road on the dam and the county that maintained portions of the dam.  The court held “there are four classes of people who are subject to the statute: (1) dam owners; (2) reservoir owners; (3) those who control the dam; and (4) those who control the reservoir. It follows that if a party fits into any one of those categories, the [NJDEP] may seek enforcement of the SDA against that person.”  All the parties fell into at least one of those classes.

The Appellate Division also blessed the allocation of liability made below.  There, the judge, sitting in the Chancery Division - General Equity Part, made an equitable allocation of the costs of compliance:  sixty-five percent to the County, twenty-five percent to the property owner, and ten percent to the Township.

What – equitable allocation in another environmental program?  Cheer up CERCLA lawyers.  Our skills may be useful in dam regulatory litigation.

CITY OF MARGATE, NEW JERSEY

Posted on December 3, 2014 by Joseph Manko

As my three prior blogs have discussed (see parts I, II, and III), the State of New Jersey has responded to Hurricane Sandy’s devastation in 2012 by escalating its efforts to construct sand dunes on its beaches to protect the shore communities beach front properties from repetitive coastal flooding. These cases have attacked the failure of the ensuing takings awards as not giving adequate compensation for the resulting partial loss of ocean view by the impacted homeowners or, by failing to reduce such awards to reflect the benefit the dunes would provide against future flooding in the future.

Now comes along a shore community, the City of Margate (in which this author owns a 10th floor vacation condominium), which filed a 16 page complaint (with 149 pages of exhibits) and asked the U.S. District Court of New Jersey to enjoin the NJ Department of Environmental Protection (NJDEP) and the U.S. Army Corps of Engineers (Corps) from trespassing on its residents properties by constructing dunes on Margate’s beaches. Despite the proposed takings being grounded in the Government’s power to protect the public health, safety and welfare, the Court issued a temporary restraining order (TRO) on November 24 in response to Margate’s Complaint alleging an “unlawful taking of Margate’s beachfront property”, required a bond of [only] $10,000.00 and scheduled a December 4, 2014 hearing to determine whether a preliminary injunction should be issued.

Stay tuned for further updates on this litigation which constitutes a challenge to the propriety of using sand dunes as an appropriate storm protection strategy for Margate, acknowledging that some preventive measures are necessary to deal with what will probably be recurring coastal flooding.

A Case of the Vapors – Does New Jersey’s Newest Vapor Intrusion Technical Guidance Foreshadow a Return to the “Old Days” of Environmental Regulation in New Jersey?

Posted on June 20, 2013 by Kenneth Mack

Enacted in May 2009, New Jersey’s “Site Remediation Reform Act”, N.J.S.A. 58:10C-1, et seq. (“SRRA” or “Act”) was heralded by the State’s Department of Environmental Protection (“NJDEP”) as a “new world order” for the State’s site remediation regulation.  Four years later, its imposition remains a “work in progress”.

Belatedly following Massachusetts’ lead, the Act largely privatized site remediation by placing most decisions, including the ultimate provision of final remediation approval, in the hands of state-licensed professionals, called “Licensed Site Remediation Professionals” (“LSRPs”).  It replaced NJDEP’s former “command and control” approval process, which tended toward extreme micro-management of each case.  Instead, LSRPs are supposed to use their professional judgment in effecting remediation.

Interestingly, much of the impetus for the SRRA came chiefly from the Government, compelled by its enormous backlog of unresolved cases: it was not unusual for remedial reports to languish on NJDEP desks, awaiting action, for years.  Moreover, NJDEP had little or no knowledge of many sites on its “known contaminated site list” which numbered anywhere from 10,000 to 15,000 (the fact that that number was unclear was itself troublesome).  Indeed, one of the precipitating causes of the Act was a vapor intrusion case in which it was belatedly discovered, in 2006, that a child day care center had been built, and was operating, on a site which formerly housed a thermometer factory.  This site should have been (but was not) cleaned up under the State’s ISRA law when the factory closed in 1994.  The site had been classified as one of “low” concern, so it was not inspected by NJDEP until twelve years after such closure.  The discovery of these circumstances caused public consternation, followed by litigation and, ultimately, legislation. 

Although the environmental consultant community enthusiastically welcomed the new law (almost immediately dubbed the “environmental consultant right to work act”), individual LSRPs continue to have difficulty weaning themselves away from the “security blanket” of prior department approval of their actions.  These fears are understandably heightened by the statutorily enjoined random audit of at least ten percent of LSRPs annually by the LSRP Licensing Board and the Department’s separate ability to audit final remediation approvals, (called “Response Action Outcomes”, or “RAOs”), for up to three years after issuance. 

Partly in response to the LSRPs’ expressed need for some certainty, NJDEP has been steadily adding to the scope and detail of various technical guidance documents, the most recent one of which is its “Vapor Intrusion Technical Guidance (Version 3.1)" issued in March of this year. At 184 pages, with appendices, this guidance (“VI Guidance”) is nearly twice as long as the next-largest NJDEP “guidance document” and far longer than similar VI guidance issued by authorities in neighboring states.  Indeed, its length is nearly that of OSWER’s External “Review Draft” “Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air”, whose issuance it preceded by about a month.  Predictably,  the two documents do not exactly mesh seamlessly. 

The prescriptive nature of the VI Guidance is equal to its heft and seemingly contrary to the Act’s proclaimed conferring of discretionary judgment upon LSRPs.  More troublesome is the fact that the various detailed dictates to LSRPs in the VI Guidance have been translated into a welter of forms that must be filed by the LSRP at various points in the VI remedial process.  These new forms –which are apt to change with some frequency – are all “machine readable” and, in light of the draw-down of experienced NJDEP personnel caused by government cutbacks and natural attrition, are increasingly reviewed by machines, rather than experienced personnel, at least in the first instance.  This seems likely to produce an exaltation of form over substance that does little to foster actual remediation.  Moreover, departures from the VI Guidance must be supported by the LSRP’s explanation of rationale under a pre-SRRA regulation entitled “Variance from Technical Requirements”.  Few such “variances” were ever permitted under this regulation in the past.  The fact that such “departures” may be substantively reviewed by NJDEP only after the final RAO is issued and, if denied, would result in the RAO’s invalidation, creates an added “chilling effect” on an LSRP’s consideration of any such deviation, however warranted.  And, while NJDEP personnel continue to be available to LSRPs for consultation and advice, it is unclear what effect, if any, reliance on such advice would have in any subsequent audit of an RAO. 

It may be that the VI Guidance is sui generis and that its overly doctrinaire approach will not be followed by NJDEP in other areas of remediation.  If not, the “new world order” of the SRRA may morph into something that looks very much like NJDEP’s  “ancien regime”.  Or maybe I just have a case of the vapors.