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Connell Foley real estate partner Richard DeAngelis recently secured a significant win in New Jersey Superior Court in a longstanding development dispute involving the New Jersey Environmental Rights Act (ERA)*. Judge Jeffrey Beacham, sitting in Essex County, granted summary judgment in favor of our clients, Carant Limited Partnership and Anthony Pio Costa, III, dismissing with prejudice West Caldwell Township’s complaint under the ERA that alleged violations of the Solid Waste Management Act, Flood Hazard Area Control Act and local ordinance relating to Carant’s use of recycled asphalt millings for the construction of a parking lot for a proposed mixed use development.
Background
The Environmental Rights Act authorizes the filing of an action “to enforce, or to restrain the violation of, any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment.”
Carant had obtained local approvals for the development of a mixed use building on Bloomfield Avenue in West Caldwell They company also has a Flood Hazard Area (FHA) permit from the New Jersey Department of Environmental Protection (NJDEP) for the project.
Carant acquired asphalt millings from a road contractor and spread them over crushed stone and rolled them as a base course for the pavement section of its development. Carant intended to then apply a surface course of asphalt over the millings to complete the parking area but the Township engineer issued a cease and desist notice.
After the Township raised its objection to the use of the millings, Carant engaged an environmental consultant to conduct soil testing to ensure there was no contamination that resulted from the use of recycled asphalt milling. While that investigation confirmed there was no contamination, the Township insisted the millings be removed or Carant obtain NJDEP approval to authorize their use. Carant argued that it was not in violation of the law and that no additional NJDEP permit was required.
Despite NJDEP finding no violation of Carant’s FHA permit, the Township filed its Environmental Rights Action in July 2019. Shortly thereafter, NJDEP confirmed that Carant did not need to modify its permit, but the Township refused to withdraw its action.
In response to the Township’s request to investigate, the NJDEP Bureau of Solid Waste Compliance & Enforcement concluded earlier this year that the use of the recycled asphalt millings did not constitute a violation of the Solid Waste Management Act. Yet the Township still refused to withdraw its complaint and maintained its position an NJDEP Individual Permit was required for the use of recycled asphalt millings in a flood hazard area.
At the conclusion of discovery on June 30, 2021, Carant filed a Motion for Summary Judgment. The Township then issued subpoenas to depose NJDEP officials and the court extended discovery until September 21 to allow for depositions of NJDEP officials, including the Chief of the Bureau of Solid Waste Compliance & Enforcement.
On October 12, 2021 the Township filed its opposition to Carant/Pio Costa’s Motion for Summary Judgment as well as a Cross Motion for Summary Judgment. Rich argued both motions on November 8 and on November 12, and Judge Beacham issued his decision on the record granting summary judgment in favor of Carant/Pio Costa and dismissing the Township’s complaint with prejudice.
Judge Beacham noted Carant/Pio Costa’s good faith efforts in engaging with NJDEP and conducting testing that confirmed there was no contamination. He found also that the Township failed to provide any evidence of environmental harm and that defendants did not violate any State environmental regulations and therefore the Township could not maintain any claim under the Environmental Rights Act.
* Township of West Caldwell v. Carant Limited Partnership and Anthony Pio Costa, III,
Docket No. ESX-L-5584-19