Two cases are on the New Jersey Supreme Court's docket that are of particular interest to environmental and land use attorneys.

The first involves the construction of two high-rise residential buildings on the Hudson River waterfront. Shipyard Associates L.P. v. City of Hoboken, 2019 WL 149532 (App. Div.), certif. granted, 238 N.J. 150 (2019). For a discussion of how recently approved legislation will affect future waterfront development, see L. Goldshore, "Public Trust Doctrine Legislation," 225 N.J.L.J. 1198 (May 13, 2019).

The second concerns the allocation of the financial burden for repair and rehabilitating a failing private dam. Crispino v. Township of Sparta, 2019 WL 1986540 (App. Div.), certif. granted, 239 N.J. 600 (2019). See, L. Goldshore, "Construing Dam and Reservoir Responsibilities in NJ," 219 N.J.L.J. 163 (Jan. 19, 2015), for a review of how the Safe Dam Act, N.J.S.A. 58:4-1 et seq., addressed cost-sharing among owners or persons "having control of a reservoir or dam …." N.J.S.A. 58:4-5.

Hudson River Waterfront Development

The Supreme Court has agreed to hear the latest case in a long running battle between objectors—including existing residents, a nonprofit organization dedicated to securing a waterfront park along the Hudson River, and the City of Hoboken (the City)—and a developer (Shipyard Associates) that is engaged in completing the construction of a large residential development along the waterfront. Reduced to its essence, the case is about alleged loss of views and recreation opportunities due to the replacement of previously approved tennis courts with two 11-story high-rise residential buildings on a Hudson River pier. Shipyard Associates v. City of Hoboken, 2019 WL 149532 (App. Div.), certif. granted, 238 N.J. 377 (2019) (Shipyard III).

Shipyard I involved an unsuccessful challenge by the objectors to a DEP waterfront-development permit issued to the developer. In re Shipyard Assocs. L.P. Waterfront Dev. Permit, Do. No. A-4873-13, certif. denied, 230 N.J. 397 (2017). Shipyard II addressed the Municipal Land Use Law's (MLUL), N.J.S.A. 40:55D-1 et seq., automatic approval provision that is triggered when a planning board fails to grant or deny a completed application within 120 days of submission, as required by N.J.S.A. 40:55D-61. In Shipyard Assocs. L.P. v. Hoboken Planning Bd., Do. No. A-4504-14, certif. denied, 232 N.J. 106 (2018), the Appellate Division made it clear that "[i]f there is a lesson to be learned from this case, it is that the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications."

During the pendency of Shipyard I and II, the City took a different tack and adopted zoning and flood control ordinances that prohibited construction of buildings, other than low-rise recreational structures, on waterfront piers. The trial judge noted that the federal and state agencies that reviewed the project had not identified any safety concerns; additionally, the project complied with DEP criteria for building a structure on a pier or platform.

The Appellate Division agreed with the trial court but cautioned that it was not ruling that a zoning ordinance affecting health and safety could never be applied to modify a previously-granted final approval. In this instance the objectors were not seeking to simply tweak or modify the "general terms and conditions" of a preliminary approval as authorized by N.J.S.A. 40:55D-49(a). Rather, what the City attempted to do here was to retroactively and impermissibly apply ordinances that completely changed the permitted uses in the zone and revoke a previously-granted final site plan approval contrary to the plain wording of N.J.S.A. 40:55D-52(a).

Environmental and land use practitioners will be especially interested in what weight, if any, the Supreme Court accords to health and safety/environmental concerns in a MLUL automatic approval setting. Because of the development's proximity to the Hudson River, the recently enacted Public Trust Doctrine Law may provide an unexpected and unanticipated factor in that analysis. N.J.S.A. 13:1D-150 et seq.

Who Pays to Repair Failing Dams and Reservoirs?

There are approximately 1,700 dams and reservoirs in New Jersey. Due to deferred maintenance, many of these structures are in need of repair and rehabilitation. Because the remedial costs tend to be substantial, disagreements concerning the identity of the responsible parties and the apportionment of the financial burdens are inevitable. One such controversy that the Supreme Court will consider later this year involves the Glen Lake Dam (the Dam) in Sparta Township (the Township), Sussex County.

The Dam, owned by the Glen Lake Beach Club, Inc. (the Club), created a private recreational lake for the adjacent property owners' use and enjoyment. Two classes of membership—voting and non-voting—were established, depending on proximity of the property to the lake. That disparate treatment would set the stage for future interclass disputes.

The need to upgrade the Dam can be traced to the August 11-14, 2000, flood when more than 14 inches of rain fell in southeastern Sussex County, resulting in a federal disaster area declaration. That event was followed by DEP's ordering that the Dam be repaired and rehabilitated to comply with state regulatory requirements.

It was not until 2008 that the Club applied for a loan from the DEP's Dam Restoration and Inland Waters Projects Loan Program to finance the needed improvements. See N.J.A.C. 7:24A-1.1 et seq. As required, the Township cosigned the application, and repayment would be by way of special assessments on the benefitted properties. See Dam, Lake and Stream Project Fund, N.J.S.A. 58:4-12; 40:56-21 et seq., authorizing assessments for local improvements.

Following the loan's approval, the seldom easy next steps included formulating the assessment methodology and recouping the project's costs from the various property owners. The Township appointed a consultant who issued a report that identified three classes of specially benefited properties: basic membership lots were assigned a share value of 1.0; lake access lots, a share value of 1.5; and lakefront lots, a share value of 2.0

In 2016, the Township adopted the special assessment that implemented the consultant's recommendations. But the trial court ruled that the formula was based on a net opinion and held that it was arbitrary because it depended on eligibility for Club membership.

The Appellate Division disagreed, finding that the net opinion rule was inapplicable in this non-judicial setting and, even if it applied, the expert report included the "why" and "wherefore" for the methodology. The appeals court concluded that the "opinion was not a net opinion" and that the Township's action "was neither arbitrary nor unreasonable but was just and fair."

The Supreme Court's decision will address the admissibility of the report and responsibility for the Dam's repair and rehabilitation costs. While the ruling should provide guidance for other similar projects, due to the substantial costs involved disputes are likely to continue to arise concerning the identity of the responsible parties and how the financial burdens should be shared.

Lewis Goldshore practices in Princeton. His practice is devoted to environmental, land use and municipal law. He is the author of New Jersey Environmental Law (ICLE 2010).