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Ginsburg Development Companies, LLC v. The Planning Board of the Township of Harrison

A-4162-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; ENVIRONMENTAL CONTAMINATION; POLLUTION — Municipalities are not preempted by state law from requiring a developer seeking a subdivision approval to include a notation on individual deeds disclosing the presence of naturally occurring arsenic.

A landowner sought subdivision approval from a municipality to develop residential housing on a tract of land. Environmental tests conducted on the property revealed the presence of naturally occurring arsenic. The levels discovered were in excess of the maximum amount allowed by state environmental regulations, but the environmental regulations did not apply to the arsenic found on the landowner’s property because the regulations were only applicable to discharges of man-made arsenic and not to naturally occurring arsenic.

At a hearing before the board, the landowner agreed to disclose the arsenic levels in the homeowners’ association documents. The municipal planning board still had concerns over the potential health threats that could have resulted from exposure to the arsenic and approved a resolution passed by the municipality requiring the deeds for all of the lots to disclose the arsenic levels on the properties. The landowner was concerned that such disclosures would negatively affect the marketability and resale value of the properties and brought an action against the board challenging the required disclosures. The lower court found that the board’s requirement of disclosure was an appropriate exercise of its powers and that the municipality was not preempted from passing an ordinance that dealt with circumstances that were not contained in the state regulations.

On appeal, the Appellate Division pointed out that the preempting municipalities from imposing conditions not included in a state statute only takes place if the conditions in question are expressly prohibited by statue. The Court agreed with the lower court’s holding that the municipality was not preempted from requiring the insertion of the arsenic disclosure in the deeds. It also pointed out that state environmental regulations allowed municipal entities to adopt stricter regulations than were imposed by the regulations. It rejected the landowner’s arguments that the deed disclosure was a form of required remediation and that the planning board exceeded its powers in making that a requirement. It referred to municipal land use statutes which grant municipalities the power to enact or modify ordinances and regulations in the interest of the public good as long as there is no conflict with state or federal law. The Court found that the mandatory arsenic disclosure in the deeds would serve a valid purpose by informing potential buyers of the condition which was included in the homeowner’s association documents, but those documents may not have been made available until after the properties had been purchased. It concluded that the board’s decision to require the arsenic disclosure in the deeds was not arbitrary, capricious, or unreasonable. Thus, the lower court’s finding was affirmed.

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