New Jersey State Real Estate Laws & Regulations : New Jersey Real Estate Lawyer & Attorney : Fox Rothschild Law Firm : Zoning, Commercial Leasing : Atlantic City, Princeton NJ

     The following entry was written by Burton J. Jaffe, Esq., a real estate attorney resident in Fox Rothschild's Princeton office.  Burt can be contacted at (609) 895-6630 or at bjaffe@foxrothschild.com

     On November 3, 2009 the Site Remediation Reform Act, NJSA 58:10C-1 et seq. (the “Act”) becomes effective. The Act materially changes the role of the New Jersey Department of Environmental Protection (“NJDEP”) with respect to the remediation of contaminated property in New Jersey.

     The Act changes the role of NJDEP from direct supervision of the remediation of contaminated sites to a compliance, enforcement and monitoring role of independent professionals conducting such work. The professionals must be licensed by the Site Remediation Professional Licensing Board which is established in NJDEP. The Board’s mandate is to establish licensing requirements for site remediation professionals and to oversee the licensing and performance of site remediation professionals.

     Additionally, the Act requires the NJDEP to inspect all documents and information submitted by a licensed site remediation professional, authorizes NJDEP to review the performance of a clean up under a broad range of circumstances (NJDEP can audit a clean up for up to three years after its conclusion) and mandates that NJDEP undertake direct oversight of contaminated sites under certain conditions and authorizes, but does not require, NJDEP to undertake direct oversight under certain other conditions.

     The purpose of the Act is to improve the speed of site clean-ups and the Act is carefully designed to accomplish this purpose without lessening the stringent remediation requirements already in place in New Jersey.

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The New Jersey Council on Affordable Housing recently published a “NRDF Moratorium FAQ” sheet (available here), advising municipalities that “if a preliminary or final site plan approval was granted prior to July 17, 2008, and said approval includes a requirement for a non-residential development fee under a COAH or Court approved development fee ordinance, that fee can still be collected (i.e. 1% or 2%), provided building permits are issued for the development prior to January 1, 2013.”

At least one municipality is acting on such advice, and refusing to release building permits and/or certificates of occupancy until the previously required ordinance fee is paid. 

But is COAH’s advice consistent with the Stimulus Act? Probably not.

While the statute has yet to be interpreted by the courts, Section 36 (e) of the Stimulus Act states as follows: “The [NRDF Act] prohibits municipalities from imposing their own fees to fund affordable housing on non-residential development, and [the Stimulus Act] is not intended to alter this underlying policy.” (emphasis added).

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On Monday, May 4, 2009, Governor Corzine placed a conditional veto on Senate Bill No. 2577, which permits the conversion of age-restricted developments to non-age-restricted developments. 

Under the original bill as approved by both houses of the Legislature, developers would be entitled to convert any age-restricted housing development that has received preliminary and final land use approval to a non-age-restricted development provided that the developer (1) has not accepted any deposits or conveyed any units to buyers under the age-restricted program, and (2) agrees to set aside a percentage of units in the development not to exceed 20% to affordable housing. The bill originally provided the local land use board only the right to review parking standards, recreation and other amenities, water supply and sanitary sewer systems to ensure that those elements were adequate for the amended project.

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