Bulletin Board Magazine 2018 Volume 4

Legal/Legislative

To obtain such federal participation and funding, the township was required to comply with conditions set forth in the Corps’ engineering regulations, including that participating municipalities provide “reasonable public access rights-of-way” to the beach “approximately every one-half mile or less.” The Township resolved to comply by obtaining public access easements in various locations. Accordingly, it passed resolutions authorizing it to condemn and acquire via eminent domain four public access beach easements, including a ten-foot-wide strip of land along the defendants’ properties. Negotiations with defendants for acquisition were unsuccessful, and Long Branch initiated condemnation proceedings. In September 2017 the trial court entered summary judgment in favor of the township and held that it had properly exercised its eminent domain power in acquiring the beach easements for public use. Defendants appealed contending that the reasonable beach access already existed and there was no necessity to condemn the easements under the Public Trust Doctrine or otherwise; and that the stated impetus for the condemnations, i.e. seeking federal funding, could not constitute a viable public purpose. The Appellate Division, in an unpublished decision, affirmed and rejected the defendants’ arguments. The court noted its “limited and deferential” review of municipal exercises of eminent domain, cited the traditionally broad conceptual scope of public use, and held that the township’s undertaking to protect its shoreline – including conforming to state or federal requirements to obtain funding – was a proper public use or purpose. There are several relevant takeaways from the Tomasi decision. The easements at issue in Tomasi were for perpendicular access to the beach and ocean rather than Continued ›

As proposed, major development for purposes of DEP stormwater review will include the proposed addition of one-quarter acre of motor vehicle surface, defined to include both pervious and impervious surfaces intended to be used by motor vehicles/ aircraft and that are exposed to precipitation. For motor vehicle surfaces, DEP will look only to surfaces added after the operative date of the rules; however, for the general disturbance and impervious cover thresholds, DEP will look to cumulative amounts of disturbance and new impervious cover since February 2, 2004 in determining whether a proposed project is a “major development”. Certain alterations of existing stormwater management systems affecting the functionality of such systems may also be considered major development even if the disturbance and impervious cover thresholds are not met. DEP is currently engaged in another stakeholder process to discuss additional, more comprehensive changes to the Stormwater rules regarding stormwater facility design and maintenance. It is anticipated this process will take place throughout this calendar year. January 8, 2019 and written comments may be submitted to DEP by February 1, 2019. Builders and developers with projects involving stormwater should familiarize themselves with the proposed rule changes to assess potential implications for pending and planned developments. CAFRA Centers Updating an earlier Bulletin Board article, the Office of Planning Advocacy within the NJ Department of State, NJ Business Action Center has released an update clarifying the applicable expiration date of State Planning Commission endorsed Plans and centers that were approved prior to September 6, 2008. Pursuant to regulations effective August 21, 2015, the State Planning Commission A public hearing concerning the green infrastructure proposal is scheduled for

Bulletin Board | 38 | www.shorebuilders.org Long Beach sought federal funding pursuant to the “Sandy Act,” which authorizes the Army Corps to protect the shoreline through beach replenishment and dune construction projects funded either in whole or in part by the federal government. Court Upholds Beach Easement Condemnations for Federal Funding by Kyle J. Campanile, Esq. Long Beach v.Tomasi A New Jersey appeals court recently upheld the Township of Long Beach’s exercise of eminent domain to acquire beachfront access easements in the consolidated appeal of Twp. of Long Beach v. Tomasi – the latest chapter in a series of disputes between coastal New Jersey municipalities and owners of beachfront property within those municipalities. extended the period of approval of such Plan Endorsements and center designations for three years beyond their otherwise applicable expiration date. That action was taken to prevent the loss of older endorsed plans that remained valid under the Permit Extension Act (“PEA”), and would have expired with the sunsetting of the PEA. A concern existed that the 3-year extension ran from the effective date of the amended regulation. The Office of Planning Advocacy clarification confirms, however, that the 3 year extension runs from the applicable expiration date of an endorsed Plan or center, including any expiration date applicable by operation of law under the PEA. For Plans and centers that remained effective by operation of law under the PEA, the three year extension has been applied from the expiration date of the PEA: June 30, 2016 for non-Sandy counties and June 30, 2017 for Sandy-impacted counties. As a result, CAFRA centers under DEP’s Coastal Rules should remain effective for the corresponding effective period of endorsed Plans and centers. Click Here for a list of applicable expiration dates

Legal/ Legislative by Michael J. Gross, Esq. , Steven M. Dalton, Esq. and Kyle J. Campanile, Esq. Mr. Gross is a Partner & Chair, Mr. Dalton is a Partner

Stormwater Management Rule Proposal – Green Infrastructure

processes, and require stormwater facilities to be designed based on small-scale, limited contributory drainage areas (2.5 acres and 1 acre limits) except in limited circumstances where a limitation on contributory drainage area is not applicable. The rules also recognize the impracticability of requiring water quantity standards to be met exclusively through small- scale green infrastructure for larger sites, and allow for use of a combination of BMPs that are not subject to limitations on contributory drainage area. As proposed, the rules allow for a demonstration that implementation of green infrastructures is not technically feasible, but do not allow for cost considerations in that context. Corresponding changes have been made to DEP’s Stormwater BMP Manual, which now includes provisions for Green Roofs and Cisterns. Per the amendments, future changes to the BMP Manual will be subject to public notice requirements. Public notice concerns are also addressed through proposed amendments requiring the recording of a deed notice describing and identifying the location of all approved stormwater management systems, in addition to the current requirement for filing of Stormwater Management plans. The amendments also propose to expand the definition of “major development” for purposes of projects subject to DEP stormwater review. The amendments do not propose to change the concept of major development for purposes of municipal stormwater management plans.

Michael J. Gross

DEP proposed amendments on December 3, 2018 to its Stormwater Management rules at N.J.A.C. 7:8-1.1 et seq. The proposed amendments follow an extended public stakeholder and internal review process spanning several years. As proposed, the rules will have a delayed implementation date and will become effective one year after adoption to allow sufficient time for municipalities to conform stormwater ordinances and to allow a phase in period for pending projects. Projects in the pipeline already designed in accordance with the existing rules will thus avoid having to redesign. and regional stormwater management requirements, plans and ordinances. The proposed amendments will replace the requirement that “major developments” use nonstructural strategies to the maximum extent practicable with a requirement that major developments use “green infrastructure” practices designed in accordance with the Stormwater BMP Manual, such as pervious paving, infiltration basins, and bioretention systems, or as otherwise approved, to meet water quantity, water quality, and groundwater recharge standards. The green infrastructure provisions of the rules and BMP Manual place a premium on treatment of stormwater runoff near its source to mimic natural hydrogeologic The Stormwater Management rules govern the development of standards for State, municipal,

Steve Dalton

Bulletin Board | 37 | www.shorebuilders.org