A planning board can require as a condition of approval that an applicant/developer provide indvidual 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.   Ginsberg Development Cos. v. Planning Board of the Township of Harrison, A-4162-06, (App. Div. Feb. 29, 2008). 

WHAT ARE THE FACTS? 

In Ginsberg, the applicant, a contract-purchaser, submitted an application for development which included the subdivision of 44 acres into 29 residential lots in the Township of Harrison, Gloucester County.  Environmental testing at the site revealed that, on eight of the lots, there were naturally-occurring levels of arsenic which exceeded NJDEP’s unrestricted soil use standard of 20 parts per million.  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-occuring exceedances.  Since the levels were naturally-occurring, there is no requirement under law to perform remedial activities.

While the applicant agreed to fully-disclose the arsenic levels in the homeowner association documents, it 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 Municipal Land Use Law.  The trial court affirmed the board’s action.  On appeal, the applicant argued that since deed notices are a form of remedial control under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 et seq., and the Brownfield Act does not require remediation of contaminants where the exceedance was the result of regional natural background levels, that the legislature had pre-empted the field and the Board’s condition was improper.  The applicant also generally challenged the condition as beyond the powers granted to the Board under the MLUL. 

WHAT DID THE COURT DECIDE?

The appellate division found that naturally-occurring exceedances do not constitute a “discharge” under the Act and the regulations implementing the Act require a “discharge” before remedial action must occur.  Since the Act does not address such instances, the court found that the pre-emption doctrine should not apply.  The court further held that even if the Act did apply to such exceedances, the Act specifically permitted more stringent local requirements and the court found it was within the Board’s discretion to require a condition authorized by local ordinance.  Additionally, the court found that the deed notice requirements imposed here were not as detailed as the requirements under the Act and that the condition of approval could not be construed to be remedial action.

Furthermore, the court found that the MLUL specifically provides for municipalities to consider the health, safety and welfare of their communities in adopting local zoning ordinances.  In 2003, the township had adopted an ordinance which required:

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 the constitutionality or whether the subdivision ordinance properly incorporated the provisions of the enabling ordinance.   Specifically, the court found that:

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.

As a result, the court found that the imposition of the condition was not arbitrary, capricious or unreasonable.

WHAT ARE THE IMPLICATIONS OF THE DECISION?

While this is an unpublished decision of the appellate division and, therefore, not controlling precedent, it provides support for land use boards requiring notice of environmental conditions at a property through the recordation of information relating to the condition without any actual remediation being required under law.  Although the court found that the condition was properly imposed, it appears that this was a fact-specific decision in which the court found that the adoption of a local ordinance which allowed the Board to require “environmental treatments and remedies” as well as a “site investigation” was valid.  However, the court left open whether this or similar ordinances could be challenged for failure to incorporate the provisions of the enabling ordinance or on constitutional grounds as the court noted that neither issue was raised on appeal.