Category: Zoning and Land Use

March 20, 2024

New Jersey’s Flood Disclosure Requirements Go Into Effect

What Happened?

 Bill S3110, which was passed by the New Jersey Legislature on June 30, 2023, has now gone into effect as of March 20, 2024.

Under New Jersey law, landlords and property sellers must now notify tenants and prospective purchasers, prior to signing a lease or agreement of sale, whether a property has been or could be impacted by flooding, is located in the FEMA Special Flood Hazard Area (“100-year floodplain”) or is located in a Moderate Risk Flood Hazard Area (“500-year floodplain”).

The Department of Community Affairs (“DCA”) has published a model Flood Risk Notice to be used by landlords pursuant to the new law. The notice includes specific questions about flood risk and space for landlords to provide answers. Commercial landlords may model their notice to be specific to their property, but all notices must include all the information contained in the model notice in substantially similar language.

For rental properties, if a lease is in writing, the notice required may be included in the written lease or the written renewal lease, provided that the notice is a separate rider, individually signed or otherwise acknowledged by the tenant, and written in not less than 12-point typeface.

Additionally, every residential lease must contain the following notice to tenants: “Flood insurance [is] may be available to renters through FEMA’s National Flood Insurance Program to cover your personal property and contents in the event of a flood.  A standard renter’s insurance policy does not typically cover flood damage.  You are encouraged to examine your policy to determine whether you are covered.”

For properties being sold, the Division of Consumer Affairs (“Division”) has added specific questions and information to the Property Condition Disclosure Statement concerning certain flood risks. Sellers are required to use this updated Disclosure Statement as of March 20th, 2024.

Why you need to know about this?

This new legislative mandate makes New Jersey the 30th state in the US to require these disclosures from landlords and home sellers, better informing renters and homebuyers of the flood risk they face. This information will help renters and buyers decide if the risk is worth the cost, and if so, then consider purchasing the appropriate flood insurance to protect against costly out-of-pocket repairs.

If you are a landlord or a seller of property, these new requirements will directly impact how you must notify tenants or prospective buyers of a property’s potential flood risks. The new law imposes steep penalties on those not in compliance; including but not limited to early termination rights for tenants.

What should you do now?

 Landlords should update all form leases and renewals to include both a flood disclosure notice modeled after the Department of Community Affairs provided form, as well as the required Flood Insurance Language, in order to provide the necessary disclosures for properties that have been or could be impacted by flooding.

Additionally, sellers of property should immediately begin using the new Property Condition Disclosure Statement provided on the Division of Consumer Affairs website. All forms of purchase agreements should also be updated to include the necessary flood disclosures.

Should you have any questions on the newly imposed disclosure requirements, please reach out to:

Zachary C. Friedman, Esq.
friedman@hylandlevin.com
856-355-2999

Robert S. Baranowski, Esq.
baranowski@hylandlevin.com
Phone: 856-355-2955

 

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June 1, 2023

Jennifer L. Cordes, Esquire Joins Hyland Levin Shapiro LLP

Hyland Levin Shapiro LLP is excited to announce that Jennifer L. Cordes has joined the firm as a partner, continuing her concentration in environmental, real estate, and corporate law.  Jennifer represents homeowners, business owners, developers and nonprofit organizations, advising them on state and federal regulatory compliance issues and assisting with due diligence in various types of transactions.  She has extensive experience in cost recovery matters under CERCLA, RCRA, and the Spill Act, as well as helping clients who own or operate industrial properties navigate their obligations under ISRA.

Skilled in handling the purchase, sale and financing of real estate and business assets, including the acquisition and transfer of liquor licenses, Jennifer also advises community associations on the interpretation and amendment of governing documents and on the creation and enforcement of rules and regulations.  Jennifer has also authored numerous appellate briefs, having appeared before the New Jersey Appellate Division, and has petitioned for certification before the New Jersey Supreme Court.

“We are elated to have Jennifer join our firm.  She is a perfect fit on so many levels – practice areas, experience, quality of lawyering, ability to mentor and professionalism”, said Managing Partner, Benjamin Levin.

Before joining Hyland Levin Shapiro, Jennifer was a partner at a mid-sized, regional Law firm and is a former Deputy Attorney General with the State of New Jersey in the Division of Law in the Cost Recovery/Natural Resource Damages section.  She served as judicial law clerk for the Honorable Joseph P. Testa, J.S.C.  She is a graduate of Rutgers School of Law (J.D 1997), and Elmira College (B.A, cum laude, 1994).  She is admitted to practice in New Jersey and is a member of the Delaware Valley Environmental American Inn of Court.

Jennifer volunteers with Tri-State Basset Hound Rescue.

Jennifer may be reached at cordes@hylandlevin.com or 856.355.2920.

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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.

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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.

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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.

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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.

February 26, 2021

New Jersey Legalizes, Decriminalizes Recreational Cannabis

What’s happened?

On February 22, 2021, Governor Murphy signed recreational adult-use cannabis bills into law. The law establishes a five-member Cannabis Regulatory Commission (“CRC”) to regulate the industry.  The CRC must now adopt rules and regulations controlling licensing of new cannabis businesses, governing drug testing by employers and establishing funding for community programs within 180 days of the law’s enactment.  Within 30 days after the rules and regulations are adopted, the CRC will begin processing applications for licenses based on a point system to be further developed. Seven types of licenses are available: Cultivator, Manufacturer, Wholesaler, Distributor, Retailer, Delivery and Clinical Registrant. The law caps the amount of Cultivation licenses at 37 for the first two years. The law does not directly establish caps for the other licenses.

The law also creates a separate license category for microbusinesses that must meet the following criteria in order to qualify: (a) 100% ownership by current New Jersey residents who have resided in state for at least the past two consecutive years; (b) at least 51% of owners, directors, officers and employees must be residents of the municipality where the microbusiness is located or a neighboring municipality; (c) no more than 10 employees; and (d) must operate in an area with no more than 2,500 square feet and possess no more than 1,000 cannabis plants each month.

Why you need to know about this?

 From a land use perspective, municipalities that wish to prohibit cannabis businesses must enact an ordinance within 180 days from February 22, 2021. If a municipality takes no action within this timeframe, all licenses will be permitted to operate within the municipality for a five-year period. Upon expiration of this five-year period, the municipality will have another opportunity to prohibit the operation of cannabis businesses. Municipalities that do not prohibit businesses may collect a 2% tax. The State will collect a 7% tax on all sales. 30% of the sales tax revenue generated will go toward CRC’s operations, while 70% will be directed to communities most adversely-impacted by drug law enforcement.

What should you do now?

Monitor for announcements regarding municipal and CRC regulations.  Anyone wishing to seek licensure should obtain further information on the process and identify potentially suitable locations for cannabis business operations.  The medical marijuana licensing process and geographic locations may provide some guidance to those interested in pursuing recreational licensing and land use approvals.

The new law presents complex legal issues relating to land use, financial transactions, banking, employment and taxation. If you have questions about the law, please contact Robert S. Baranowski at baranowski@hylandlevin.com or William F. Hanna at hanna@hylandlevin.com.

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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.