September 6, 2022

The NJDEP to Adopt Portions of the Protecting Against Climate Threats (PACT) Rules via its Emergency Rulemaking Powers

For many in the field of real estate development, including developers, builders, engineers, planners and land use attorneys, on May 25th, a bell was tolled.

The New Jersey Administrative Procedures Act (N.J.S.A. 52:14B-1 et seq.) permits an agency such as the New Jersey Department of Environmental Protection (the “NJDEP”) to make emergency amendments to the New Jersey administrative code upon a finding of imminent peril to public health, safety, and welfare. N.J.S.A. 52:14B-4(c).  On May 25th, the NJDEP announced that it would be adopting portions of the Protecting Against Climate Threats (PACT) Rules pursuant to these emergency rulemaking powers, meaning that these emergency PACT rules would take effect the day they are filed with the Office of Administrative Law and would be valid for sixty (60) days from that date.  In addition, the NJDEP has announced its intention to file not only the emergency PACT rules, but also a concurrent proposal which would enable the rules to remain in effect for a period longer than 60 days.  Once the emergency rules (along with the concurrent proposal) are published in the New Jersey Register, a thirty (30)-day comment period will begin, to run concurrently with the 60-day validity period.

Why is this important?  In the simplest terms, the emergency PACT rules will have a significant and sustained impact on development in New Jersey, as the emergency PACT rules to be adopted include, among other things, changes to the Fluvial Flood Hazard Area (FHA) rules and the Stormwater Rules.  The term “fluvial” generally means “of or relating to a river or stream”, and as such, the changes to the Fluvial FHA rules will be limited to projects located in fluvial areas.  In other words, they will not be applicable to tidal areas.

Under the current Fluvial FHA rules, the Design Flood Elevation (the “DFE”) is the higher of: (1) Flood elevation mapped by the NJDEP (where applicable); or (2) the FEMA 100-year flood elevation, plus one foot.  However, under the proposed emergency Fluvial FHA Rules, the fluvial DFE will be raised by two feet.  As such, applicants utilizing their own flood projections will be required to use rainfall data for the year 2100 in order to calculate an alternative DFE.  If an applicant’s project is not currently located in a floodplain, it must determine whether its application for development will be impacted, and to what degree, by the additional two feet of flood elevation.

As another example, and with respect to stormwater, the emergency rules will require that stormwater designs manage runoff for both today’s storms and future storms, again utilizing county-based rainfall projections for the year 2100, which projections are up to 50% higher than current totals.  The emergency rules will also remove the use of Rational and Modified Rational methods for stormwater calculations.  Furthermore, municipalities will have only one year to update their municipal stormwater ordinances to account for the new rules.

Thankfully, there are certain exceptions to the applicability of the emergency rules.  With respect to the Fluvial FHA rules, applicants will not have to comply with the new standard if:

  1. The regulated activity is part of a project that already has a valid FHA permit. See J.A.C. 7:13-2.1(c)1; or
  2. The regulated activity is part of a project that requires an FHA permit and a complete application for the project was submitted to NJDEP prior to the emergency rulemaking; or
  3. The regulated activity is part of a project that does not require an FHA permit prior to the emergency rulemaking, and:
    • The project has received all necessary Federal, State and local approvals prior to emergency rulemaking; and
    • Construction has commenced, also prior to the emergency rulemaking. See J.A.C. 7:13-2.1(c)4.

Note, however, that obtaining a flood hazard area verification or applicability determination, as opposed to a permit, prior to the emergency rulemaking does not automatically exempt a new project from the new standards.

Regarding stormwater, developers will not have to comply with the emergency rules if:

  1. The project needs FHA, Coastal Zone Management, Freshwater Wetlands, or Highlands approval and a complete application for such was submitted to NJDEP prior to the emergency rulemaking. See J.A.C. 7:8-1.6(b)2; or
  2. The project does not require any NJDEP approval and has already received certain local approvals pursuant to the Municipal Land Use Law (“MLUL”) (J.S.A. 40:55D-1 et seq.) prior to the emergency rulemaking. See N.J.A.C. 7:8- 1.6(b)1.

As mentioned, municipalities will only have one year to amend their stormwater ordinances to account for the new rules.  However, the emergency stormwater rules will be effective immediately under the Residential Site Improvement Standards (“RSIS”), unless covered by N.J.A.C. 7:8-1.6(b)1, which supersede any municipal ordinance to the contrary and apply strictly to residential development (as opposed to non-residential development).

The NJDEP has already delayed filing the emergency portion of the PACT rules with the Office of Administrative Law at least once, and it is rumored it might happen again due to public outcry from entities such as the New Jersey Builders Association.  Others hear that the emergency rules will be filed sometime after Labor Day of this year.  In any event, those in the business of developing real property, including developers, builders, engineers, planners, and land use attorneys, must be aware of these emergency rules in order to anticipate how they will affect development projects moving forward and be able to swiftly adapt to avoid project delays.


The contents of this article are for informational purposes only and none of these materials are offered, nor should they be construed, as legal advice or a legal opinion based on any specific facts or circumstances.

May 9, 2022

Attorney, Natalia Teekah’s Article on Environmental Due Diligence in New Jersey published by WCRE InfoFriday

The article titled “Environmental Due Diligence in New Jersey” was published in the WCRE’s InfoFriday|May 6, 2022 newsletter.  Natalia focuses her practice on environmental and land use matters.  She has experience in handling a wide range of environmental issues.

Please contact Natalia directly at 856.355.2935 or by email at teekah@hylandlevin.com if you have any questions.

 

July 14, 2021

Peter A. Chacanias’ Article on Riparian Claims published by Wolf Commercial Real Estate’s InfoFriday

The article titled “Beware of the Riparian Claim on NJ Waterfront Properties” was published in WCRE’s InfoFriday|July 2nd 2021.  Peter is a vital part of our Real Estate group with focus on zoning and land use and environmental matters, especially waterfront development issues.  Contact Peter directly at 856.355.2992 or by email at chacanias@hylandlevin.com.

April 1, 2021

The Brownfields Loan Program Application deadline is Near!

What’s Happened?

Earlier this year, the New Jersey Economic Development Authority (“NJEDA”) launched a Brownfields Loan Program (“Loan Program”) which offers loans in amounts ranging from $100,000 to a maximum of $5 million to be used towards the remediation and development of brownfield sites across the state.

The Loan Program is open to potential brownfield site purchasers and current brownfield site owners intending to develop commercial, retail, mixed use developments, expansions or reuses. The parties must: (1) not have contributed to the contamination at the site; (2) be able to demonstrate a path to site control; (3) provide a letter of support from the mayor of the municipality in which the site is located; (4) provide owner equity equal to a minimum of 10% of the appraised value of the property in a remediated state. The project must be economically feasible and demonstrate a funding gap, or that other financing is unavailable. The applicant must have a plan for reuse of the remediated site, and the remediated property must have an appraised value equal to or greater than 100% of all debt financing, including financing through the Loan Program.

Loans have a base interest rate of 3% and a ten-year term. Principal and interest payments are to be deferred for the first two years, during which time interest will accrue. Interest-only payments are to be made in years three and four, with full amortization of the principal balance for the remaining term.

Loan funds can be used for environmental investigation, remediation, hazardous material and waste disposal, long-term groundwater monitoring, and engineering and institutional controls, among other uses. Prevailing Wage and Affirmative Action requirements apply both to the remediation project and the redevelopment project, including subcontractors.

Why Do You Need To Know About This?

If you are a brownfield site owner or a prospective brownfield site purchaser, the Loan program could help finance some of your redevelopment costs. The New Jersey Economic Development Authority (“NJEDA”) is still accepting loan applications until April 13, 2021.

Loan amounts will be determined based on a competitive point system detailed in a checklist available on the EDA’s website. The checklist appears to prioritize projects which will create new small businesses, new residential uses, or foster innovation, such as life science, clean energy, and advanced manufacturing. Additional points are also awarded to developers with experience in conducting revitalization projects, and applicants that have strategic partners with a demonstrated history of successful completion of projects of a similar size and scope.

What Should You Do Now?

If you are looking to take advantage of EDA’s Brownfields Loan Program, start gathering the required submission materials detailed in the EDA checklist in preparation to submit by April 13, 2021. Information used in support of Parts 1 and 2 of the checklist must be submitted by April 13, 2021. The application fee is $2,500, the commitment fee is 0.875% of the loan amount, and the closing fee is 0.875% of the loan amount.

The Loan program presents complex legal issues relating to land use, financial transactions, and environmental law. If you have questions about the Loan program, please contact Robert S. Baranowski at baranowski@hylandlevin.com or Natalia P. Teekah at teekah@hylandlevin.com.

March 23, 2021

Peter A. Chacanias, Esquire Joins Hyland Levin Shapiro LLP

Peter A. Chacanias has joined Hyland Levin Shapiro LLP as an associate continuing his concentration on land use and environmental matters.  Peter has experience representing commercial real estate developers and property owners on all aspects of the land development process and has appeared before planning boards, zoning boards of adjustment and other municipal governing bodies in connection with site plan approvals, subdivisions, variances, rezoning applications, environmental permits, and access permits. Peter has specific experience with waterfront development and tidelands matters.  He has served as Board Solicitor for municipal bodies throughout New Jersey, including the Point Pleasant Beach Planning Board and the Zoning Boards of Adjustment for the municipalities of Little Egg Harbor, Toms River, and Summit.

Prior to joining Hyland Levin Shapiro, Peter practiced in the land use, environmental, redevelopment, tidelands, and related litigation group at two prestigious law firms in Monmouth and Middlesex counties, respectively.

“Peter’s prior experience has been on both sides of the development table, enabling him to cogently understand and respect the government’s perspective in processing each application” said partner William F. Hyland, Jr.  Land use partner Bob Baranowski added that “welcoming Peter to our active and growing land use and zoning practice with his expertise in handling tidelands and waterfront development applications will further expand our proficiency in these areas and will be particularly valuable to our clients with development projects in coastal and riparian zones.”

Peter is a graduate of Seton Hall University School of Law (J.D. 2014) (Presidential Scholarship and Riccio Scholarship recipient), and Seton Hall University (B.A. magna cum laude, 2011).  During his time at Seton Hall University, Peter received the Presidential Scholarship Award and was a member of the National Society of Collegiate Scholars and the Golden Key International Honour Society.

Peter is a member of the Monmouth Bar Association and the New Jersey State Bar Association.

Peter resides in Matawan Township with his fiancé. In his spare time, Peter enjoys reading and is an avid outdoorsman and athlete. When he’s not working, you can usually find him hiking along some wooded trail or training for his next long distance run, and he hopes to rekindle his love of acting – a hobby he picked up in college and managed to continue throughout law school.

Peter may be reached at chacanias@hylandlevin.com or 856.355.2992.

January 19, 2021

Natalia P. Teekah, Esquire Joins Hyland Levin Shapiro

Natalia P. Teekah has joined Hyland Levin Shapiro LLP as an associate continuing her concentration on environmental and land use matters. Natalia has experience advising clients on regulatory compliance, transactional due diligence, contaminated site redevelopment, and solid and hazardous waste matters.  Natalia is also experienced with issues involving the Spill Compensation and Control Act, Solid Waste Management Act, NEPA, Freshwater Wetlands Protection Act, CERCLA, RCRA, ISRA, Blue Acres, municipal stormwater regulation, environmental cleanup cost recovery, and supplemental environmental projects.

Prior to joining Hyland Levin Shapiro, Natalia practiced in the environmental and zoning and land use group at another South Jersey law firm.

“Natalia’s experience, education and skill sets will enhance our ability to serve our clients in land use and environmental matters.  As the economy rebounds, we are seeing increased activity in land use applications and redevelopment projects.  With the addition of Natalia to our growing practice, we will have an expanded capability to meet our clients’ needs in these areas with agility and efficiency,” said land use partner, Bob Baranowski.

Natalia is a graduate of Vermont Law School (J.D. 2018), Emory University (B.S., 2012).  During her time at Vermont Law School Natalia was a student clinician at the Environmental and Natural Resources Legal Clinic.  Prior to that, Natalia was a legal researcher and legislative extern with Vermont Public Interest Group, the largest environmental advocacy organization in the state of Vermont.  She also served on the Executive Board of the Vermont Journal of Environmental Law.

In her free time, Natalia enjoys reading, traveling, and SCUBA diving, and she hopes to take up fencing again—a hobby that she enjoyed during college.

Natalia may be reached at teekah@hylandlevin.com or 856.355.2935.