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Ginsburg Development Companies, LLC v. Planning Board of the Township of Harrison


February 29, 2008


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1430-06.

Per curiam.


Argued December 12, 2007

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)). Thus, since the Act does not address naturally-occurring elevated contaminant levels in the first instance, we agree with the motion judge that the Board's decision to impose conditions upon its approval was not preempted by State law.

However, even if the Act applied, the regulations specifically provide that "[a]ny remediation performed pursuant to this chapter shall not relieve any person from: 1. Complying with more stringent requirements or provisions imposed by any other Federal, State or local applicable statutes or regulations[.]" N.J.A.C. 7:26E-1.1(b)(1). Therefore, DEP's own regulations permit a local government to require even more restrictive conditions than the Act, thus evidencing a legislative intention to provide for concurrent jurisdiction over sites controlled by the Act. See, Cox, N.J. Zoning and Land Use Administration, § 37-2 (2007) (noting concurrent jurisdiction exists "where state law establishes that nothing therein shall be construed so as to preclude a local agency from setting stricter requirements").

Nor do we agree with plaintiff's contention that the deed disclosure requirement was a form of remediation under the Act, thereby implying that the Board was requiring something that the Act specifically did not. The "deed notice" as defined by N.J.A.C. 7:26E-1.8 and set forth in greater detail under Appendix E of the regulations anticipates that site remediation has occurred, and it reserves to DEP certain rights to enter the property to insure compliance with remediation standards. Since plaintiff acknowledges that it is not performing any remediation efforts at the site, the Board's decision to require disclosure in every deed is not the equivalent of a deed disclosure under the regulations and clearly not "remediation" under the Act.

Plaintiff also contends that the Board exceeded its statutory powers under the MLUL. We disagree and concur with the motion judge who found the condition a reasonable exercise of the Board's powers.

The Legislature has accorded each municipality the power to

[M]ake, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants . . . . [N.J.S.A. 40:48-2.]

"The statutory grant from the State of the municipal power to zone and to control the subdivision of property is now provided by the MLUL." Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 223 (1994). A municipality, through its governing body, and through the formation of planning boards and zoning boards of adjustment, may broadly exercise this authority delegated by the Legislature, Cox, supra, at § 1-2, subject only to constitutional restraints, direct delegation of the powers to another governmental entity, and the MLUL. Id. at § 1-1.

One of the express purposes of the MLUL is "[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals and welfare[.]" N.J.S.A. 40:55D-2(a). "Municipalities may effectuate th[e] statutory purposes [of the MLUL] only by incorporating them as standards in duly-enacted zoning and subdivision ordinances." Pizzo Mantin Group, supra, 137 N.J. at 229.

In 2003, Harrison approved an ordinance that delegated to the Board the authority, during its review process, to

[R]equire such other studies, tests or environmental treatments and remedies as may be determined reasonable and necessary for the environmental safety and security of the site, including but not limited to a site investigation in accordance with N.J.A.C. 7:26E, cleanups or other remedies. [Harrison Twp. Ord. ch. 107, § 107-1(15)(m) (2003).]

Plaintiff has not challenged the constitutionality of this ordinance nor has it contended that the subdivision ordinance did not properly incorporate provisions of the enabling ordinance into its standards.*fn1

The authority cited by plaintiff for the proposition that the Board lacked the authority under the MLUL to include this condition in its approval is easily distinguishable. In Stochel v. Planning Bd. of Edison, 348 N.J. Super. 636 (Law Div. 2002), a case relied upon by plaintiff, the court upheld the local planning board's grant of a developer's application, noting that environmental concerns raised by objectors were irrelevant because any impact upon wetlands caused by the development were within DEP's exclusive jurisdiction. Id. at 647. Obviously, based upon our discussion above, such is not the case here since DEP does not regulate the levels of naturally-occurring arsenic.

Likewise, plaintiff's reliance upon Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395 (App. Div. 1997), is misplaced. We agree with the general proposition stated in Shim that "[t]he object of site plan review is to assure compliance with the standards under the municipality's site plan and land use ordinances." Id. at 411. However, as we have noted, plaintiff has not argued that the Board acted in a manner contrary to the subdivision ordinance.

In short, the inclusion of the deed notice clearly serves a valid purpose by notifying initial buyers and those purchasing through re-sales that the levels of a known health hazard exceeded those generally permitted by the DEP on sites requiring remediation. Although plaintiff agreed to include the information in the homeowners' association documents, it was reasonable to assume that future purchasers of the lots might not receive the information from future sellers through those materials. The requirement that such a notice be included in each deed is a reasonable method to insure the information is in fact provided from developer to purchaser and to subsequent purchasers. Thus, the permissible governmental purpose of promoting the general health and welfare of its citizens would be served, and there is nothing in the record by which we can conclude that the Board's action exceeded the powers delegated to it under the subdivision ordinance. In short, the decision of the Board to include the deed requirement as a condition of its approval was not arbitrary, capricious or unreasonable.


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