On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1430-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Plaintiff, Ginsburg Development Companies, LLC, appeals from the March 2, 2007, order that granted defendant, the Planning Board of the Township of Harrison (the Board), summary judgment and dismissed plaintiff's complaint with prejudice. Plaintiff contends that the Board's decision to condition its approval of plaintiff's development application upon the inclusion of a "disclosure in the deeds for each lot and . . . in the [h]omeowner's association documents regarding the levels of naturally occurring arsenic for all lots affected by . . . elevated levels," was "ultra vires" and was pre-empted by State environmental laws. We have considered these arguments in light of the motion record and applicable legal standards. We affirm.
The facts that gave rise to the controversy are essentially undisputed. Plaintiff, contract purchaser of forty-four acres of land in the Township of Harrison (Harrison), submitted an application for development to the Board seeking preliminary major subdivision approval for twenty-nine single-family, residential building lots and one open space lot dedicated to two drainage and retention basins.
Although the testimony before the Board is not part of the appellate record, the parties do not dispute that environmental tests of the site revealed that the level of naturally-occurring arsenic contamination on eight of the proposed lots exceeded twenty parts per million (ppm), with one spot testing at 50.2 ppm. The Department of Environmental Protection's (DEP) maximum permissible level of arsenic concentration for unrestricted soil use after remediation is twenty ppm. It was apparently also acknowledged before the Board that exposure to arsenic posed significant health effects, though plaintiff's expert was unaware of any studies that had measured the risk of exposure to naturally-occurring elevated arsenic levels.
Plaintiff and the Board acknowledge that DEP's remediation regulations only apply to arsenic levels that result from man-made discharges or the application of pesticides; because the arsenic levels on the properties were naturally-occurring, DEP did not require plaintiff to remediate in accordance with the regulations. At the hearing before the Board, plaintiff agreed to fully disclose the arsenic levels in all the homeowners' association documents. However, it objected to including the disclosure in individual deeds of conveyance to purchasers of the lots because of "concern about the marketability of the properties," including their resale in the future. Over plaintiff's objection, the Board approved Resolution No. 76-2006 (the resolution) that provided in pertinent part,
The Township Ordinance permits the Planning Board to consider remedies to address the public welfare concerns posed by an environmental issue. Although the Board may not be permitted to require remediation of the site when the NJ DEP is not requiring same, considering the health risks of exposure to elemental arsenic, the Board determined that it is appropriate to require a disclosure in the deeds for each lot and a disclosure in the Homeowner's association documents regarding the levels of naturally occurring arsenic for all lots affected by these elevated levels.
Plaintiff filed its complaint in lieu of prerogative writs challenging the inclusion of this condition in the resolution that otherwise approved its application for preliminary major subdivision approval. After the Board filed its answer, plaintiff moved and the Board cross-moved for summary judgment. Following oral argument on March 2, 2007, the motion judge concluded that the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 through -31 (the Act), and its accompanying regulations, did not apply to the facts at hand. Thus, he reasoned, the Township was not "preempted from adopting an ordinance, which controls a circumstance . . . not covered by the Act or the regulations adopted by the Act." The judge then considered whether the Board's decision to require the deed disclosure was arbitrary, capricious, and unreasonable. Noting that the Township's ordinance "mandat[ed] that [the Board] consider environmental concerns," the judge concluded that imposing the condition in its resolution approving the application was an appropriate exercise of the Board's powers, and granted the cross-motion for summary judgment. This appeal ensued.
Plaintiff contends, as it did before the motion judge, that the legislature did not require remediation of naturally-occurring contaminants. Specifically, plaintiff points to N.J.S.A. 58:10B-12(g)(4) that provides, "[r]emediation shall not be required beyond the regional natural background levels for any particular contaminant." Plaintiff further argues that "a deed notice is a form of remedial control," and hence cannot be required for naturally-occurring levels of arsenic that exceed DEP's maximum permissible levels. In short, plaintiff argues the legislature has pre-empted the field and the Board's decision conditioning its approval upon the inclusion of a notice in every deed cannot stand. Alternatively, plaintiff contends that the Board exceeded the powers granted to it by the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129 (the MLUL).
The Board argues, as it did below, that the Act simply does not address naturally-occurring, unsafe levels of elemental contaminants, and, therefore, the field of regulation has not been pre-empted by DEP. It further argues that the Township's ordinance that generally granted the Board the power to impose reasonable environmental controls upon any development was a valid exercise of municipal power, and, that the condition imposed by the Board in its resolution was reasonable.
We agree with the motion judge and the Board that the Act simply does not address the situation at hand. The regulations implementing the Act apply to any "discharge," defined as "any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of a hazardous substance, hazardous waste or pollutant into the waters or onto the lands of the State . . . ." N.J.A.C. 7:26E-1.8. It is undisputed that the elevated arsenic levels at the site did not result from a discharge.
Our Supreme Court has noted, "Preemption analysis calls for the answer initially to whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the State has acted. If not, then preemption is clearly inapplicable." Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461 (1976); see also Chester v. Dep't. of Envtl. Prot., 181 N.J. Super. 445, 450-51 (App. Div. 1981) (explaining the five-prong Overlook test for determining preemption as it applies to municipal regulation of environmental concerns). "State legislation preempts a municipal zoning ordinance when the ordinance 'expressly forbids something which is expressly authorized by statute or permits something which a statute expressly proscribes.'" Bubis v. Kassin, 184 N.J. 612, 629 (2005) (quoting Tumino v. Long Beach Twp., 319 N.J. Super. 514, 520 (App. Div. 1999)). ...