It’s Not Nice to Regulate Mother Nature

by Paul J. Bruder, Jr.

“Man proposes, God disposes.” This catchy saying references the often strange ways that man’s best laid plans can be changed by the whim of a Higher Power. In the realm of land development in the state of New Jersey, a new phrase was coined by a New Jersey appellate court: “God creates, man regulates”.

In Ginsberg Development Cos. v. Planning Board of the Township of Harrison, A-4162-06, (App. Div. Feb.
29, 2008), a New Jersey appellate court held, in an unpublished opinion, that a local planning board can require as a condition of land development approval that a developer provide individual deed notices as to the presence of naturally-occurring environmental conditions, such as levels of arsenic in excess of the New Jersey Department of Environmental Protection’s unrestricted soil use standard.

Just the Facts

In Ginsberg, the applicant submitted plans to develop 44 acres into 29 residential lots in the Township of Harrison, Gloucester County. Soil sampling showed evidence of naturally-occurring levels of arsenic which exceeded NJDEP’s unrestricted soil use standard of 20 parts per million on eight of the lots. While there was apparently an acknowledgement by the applicant that arsenic could cause severe health conditions, there was no information in the record regarding exposure to naturally-occurring exceedances. Arsenic is often found in soils at former fruit orchards, since arsenic is an ingredient in many popular pesticides, and most states require remediation of arsenic contamination caused by man. However, there is no requirement under New Jersey law to perform remediation of naturally-occurring arsenic or other contaminants.

Ginsberg agreed to fully-disclose the arsenic levels in homeowner association documents, but objected to the inclusion of this information in individual deeds of conveyance because of concerns about the initial or future marketability of the property. Nevertheless, the Planning Board included the following in its Resolution of Memorialization:

The [Harrison] 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 NJDEP 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.

The applicant filed an action challenging this condition of the preliminary major subdivision approval, alleging that the condition was pre-empted by state environmental laws and “ultra vires” under the New Jersey Municipal Land Use Law. After the lower court affirmed the planning board’s action, the applicant argued on appeal that the Board’s condition was improper because deed notices are a form of remedial control under the New Jersey Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., but the Brownfield Act does not require remediation of contaminants where the exceedance was the result of regional natural background levels, and therefore the New Jersey legislature had pre-empted the field. Ginsberg also generally challenged the condition as beyond the powers granted to the Board under the Land Use Law.

The Decision

The court found that naturally-occurring exceedances do not constitute a release or “discharge” under the Brownfield Act or its implementing regulations, and the regulations require a “discharge” before remedial action is required. The court held, therefore, that the pre-emption doctrine should not apply because the Brownfield Act does not address such instances. The court also found that it was within the Board’s discretion to require a condition authorized by local ordinance, even if the Brownfield Act did apply to such exceedances, because the Act specifically permitted more stringent local requirements. The court also held that the condition of approval could not be construed to be remedial action because the deed notice requirements imposed on the applicant by the planning board were not as specific as the requirements that would be imposed by the Brownfield Act.

The court went on to state that the Land Use Law specifically requires local municipalities to consider the health, safety and welfare of their communities in adopting local zoning ordinances. Harrison Township maintains an ordinance which requires the performance and submission of:

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).

The court noted that the applicant did not challenge whether the subdivision ordinance properly incorporated the provisions of the enabling ordinance, nor did the applicant challenge the ordinance on constitutional grounds. Specifically, the court stated: “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.”

How Does This Decision Affect Developers?

Because this is an unpublished decision of the appellate division, it is not controlling precedent. However, it provides ammunition for land use and planning boards to require notice of environmental conditions, even though such conditions may be naturally occurring, at properties through the recording of information relating to the condition, even though no physical remediation is required. Chances of this type of conditional approval becoming uniformly imposed is quite small in light of the factually intensive nature of the case and the existence of the local ordinance which allowed the Board to require “environmental treatments and remedies”. However, the court noted that constitutional issues and issues of whether the local ordinance failed to incorporate provisions of the enabling ordinance were not raised on appeal. As such, there is potential for future challenges in similar circumstances.