New Jersey Zoning Watch

In putting together your “keeping on top of the latests land use trends” reading list, include the following two articles written by Andrea Alexander of The Record. Both address some of the challenges and opportunities facing communities as a result of the “green” movement.
In an article from September, Ms. Alexander highlights a recently adopted ordinance in Wayne, New Jersey, that limits the development of wind turbines near residential neighborhoods, schools or day care centers. According to the article:

The Township Council unanimously adopted the measure after a heated debate Wednesday night: Are turbines unsightly intruders with potentially damaging health effects? Or should they be accepted as just part of the skyline of an energy-independent future?

“When you look out your back door, you don’t want to look at a nuclear power plant, you don’t want to look at a wind turbine,’’ Mayor Christopher Vergano said today. “We are protecting the values of residential properties by keeping them [at] a certain setback.’’

Wayne is not the first community to address the issue, however, and won’t be the last. Given the initial reactions of municipalities to regulating the siting of wind turbines (despite their benefits to the community), it appears that obtaining approvals for such facilities will be more like hearings on telecommunications towers and monopoles, than more esthetically “acceptable” projects.

The township isn’t the first in the state to adopt rules to keep wind turbines away from homes. Brick in Ocean County adopted an ordinance in April that allows turbines only in business and industrial zones. At least five towns in the state have adopted ordinances to set guidelines for the location of wind turbines. The regulations generally require setbacks to keep the renewable energy source away from neighbors.

Hillsborough in Somerset County allows residents, farmers and business owners to put up turbines on lots that are greater than 10 acres. Galloway Township in Atlantic County restricts turbines to one-acre residential lots, with a setback from the property line equal to the height of the structure.

Under Wayne’s ordinance, Mayor Christopher Vergano said, turbines could be permitted along sections of Routes 23 and 46 and in the industrial areas off the West Belt Parkway.

For the environmentalists’ perspective of the battle in Wayne and other communities over alternative energy technologies, see the press release entitled “It’s Not Easy Being Green,” at Environment New Jersey here.

Ms. Alexander also wrote an article entitled “Towns Start Reshaping The Landscape for Solar, Wind,” this week on the “green” movement and how municipalities are taking it into consideration in land use planning.

Planning experts say slowing global warming goes beyond putting solar panels on homes and wind turbines on industrial lots. It’s going to take a gradual — but decisive — shift in your way of life.

. . . .

A green community will position new homes near transit, parks and stores, or bring those necessities to existing neighborhoods.

Transportation is the largest contributor to greenhouse gases, and “the most important part about mixing land uses is: People tend to use their cars less, and that is what living green is all about,” said Debbie Alaimo Lawlor, chief of Sustainability and Economic Growth for the New Jersey Meadowlands Commission. The NJMC has land-use authority over parts of 14 communities in Bergen and Hudson counties.

Westwood accepted the connection years ago in zoning the heart of its downtown as a “special pedestrian environment.” The zoning bans new restaurants and sports clubs — destinations people drive to, then leave.

But it welcomes service businesses such as the camera shop, florist and dry cleaners so one walk downtown can fill several errands.

Green planning also was boosted there by another essential: a train station. Houses closest to the station are selling the fastest and holding their value in a down market.

While I’m not particularly a fan of labeling restaurants and fitness centers as “anti-green,” the article does make one re-think how “reducing our carbon footprint” interacts with zoning ordinances in older downtowns which are probably relics of the 1960s (both the downtowns and the zoning).

The article also includes discussion of how the state legislature, regional planning authorities like the Meadowlands Commission and individual municipalities are attempting to provide incentives for (or some might say, force) builders to encorporate green technologies or criteria into their projects, such as solar power or LEED standards.

For the full article, click here.

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The Appellate Division has ruled that the New Jersey Municipal Land Use Law does not authorize municipalities to demand open space set asides or payments in lieu to support recreational opportunities as a condition of a general development approval. New Jersey Shore Builders Assn. v. Township of Jackson, (N.J. App. Div. June 23, 2008)(approved for publication).

The unanimous appellate panel noted that while open space preservation is a “laudable” goal, the MLUL does not allow for such exactions in the land use approval process. The lone exception is for large, “planned developments” on at least five acres and totalling 100 units or more, for which the MLUL specifically provides for such recreational improvements.

According to the Star Ledger:

The ruling came from cases that builders’ associations brought challenging land use ordinances in Jackson Township in Ocean County and Egg Harbor Township in Atlantic County that required them to set aside land in developments for open space or recreational areas and facilities.

A Superior Court judge shot down the ordinance in Jackson Township as unenforceable last year, and the municipality appealed. Around the same time, another judge upheld Egg Harbor’s ordinance, and the builders’ association appealed.

Yesterday, the Appellate Division said the [MLUL] does not give communities the power to demand such things from developers in the name of preserving open space — a practice they had followed for nearly three decades.

. . . .

The court made a distinction between subdivisions common to New Jersey and planned developments — large-scale housing projects of at least 5 acres and 100 units, such as senior communities. Since the land use law specifically allows for open-space set-asides in the latter, the judges ruled that open-space requirements there are appropriate.

Developers who objected to set-asides, or “exactions” in planning parlance, often were given the option of paying a fee that would go toward building recreational space somewhere else in town or toward purchasing a big-ticket item, such as a fire engine, that a community would not otherwise be able to afford.

The court said yesterday those fees also are illegal if they are not limited to improvements for water, sewer, drainage and streets as provided in the Municipal Land Use Law.

Bill Dressel, the executive director of the League of Municipalities, stated that the ruling “removes a tool used by municipalities to ensure that usable open space and recreation areas are provide to serve the citizens who will be living in the developments.”

The decision will likely be attacked on two fronts: an appeal to the State Supreme Court and potential legislative amendments to the MLUL.

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With the Permit Extension Act already under fire despite substantial legislative support, the Sierra Club has begun an assault on the entire Smart Growth Economic Development Coalition’s economic stimulus package, referring to it as the “Dirty Dozen.”

The Builders Association and their allies are releasing a package of bills they call an economic stimulus package. In fact, what the bills would do is overturn environmental laws, undermine good planning, promote sprawl and give tax breaks and public subsidies to wealthy developers at a time when the state of New Jersey is going broke.

This package of bills will put sprawl on steroids and allow for the paving over of half of New Jersey’s open spaces.

The bills in the package are taken from the Department of Community Affairs’ (DCA) Housing Task Force reports, which were written in secret without any input from the public or environmental or citizens’ groups. They include:

1. The Permit Extension Act — This bill would extend all permits for six years and revive those that have expired within the past two years, undermining the ability of the state to implement new environmental regulations, building codes, or local zoning ordinances and indiscriminately promoting building, regardless of whether the project is a good one or a bad one.
. . . .

For the Sierra Club’s critique of all 12 legislative proposals in an Op-Ed entitled “Builders Gone Wild” at the Asbury Park Press website, click here.

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With the latest bleak data on new home construction and sales in New Jersey coupled with an already soft office market, it is no surprise that there has been strong, bipartisan support of the Permit Extension Act, which is designed to provide relief for projects that have been stalled due to economic conditions as well as new (NJDEP) or uncertain (COAH) regulatory requirements. The Assembly version of the bill already has 43 co-sponsors and is moving swiftly through the committee process with wide-spread support from a coalition of business, industry, housing, community activists, municipal officials and smart growth advocacy groups called the Smart Growth Economic Development Coalition. The Senate version is expected to be heard in committee on June 12.

According to an article in Monday’s Home News Tribune:

A bill to extend New Jersey’s approved construction permits until the year 2012 would support smart growth, remediate contaminated sites, boost the State’s lagging economy and uphold environmental regulations, according to the Smart Growth Economic Development Coalition.

The proposed legislation before the New Jersey State Legislature has widespread support among business and industry leaders, as well as municipal officials, community groups and housing and community activists, and is receiving bi-partisan support from the Legislature, including at least 43 sponsors within the Assembly, and 15 sponsors within the Senate thus far.

. . . .

The Coalition — a collaborative group created in 2007 and consisting of statewide business and industry organizations, plus community groups and elected leaders — supports the Permit Extension Act now before both houses of the Legislature. The Permit Extension Act bill is expected to be heard before Assembly and Senate committees on June 5 and June 12, respectively.

“Unless this legislation is passed, many beneficial projects - including proposed developments on urban redevelopment, transit hub, portfield and brownfield sites - will fail to move forward, and those communities and their residents will pay the price,” said Dianne R. Brake, president of PlanSmart NJ.

However, the environmental community has rallied to fight this basic lifeline to the business community as if it were a bill to abolish the NJDEP. As it is as important to understand the rationale to objections to a proposal as it is to understand the reasons for it, here are a few less than complementary articles that debate the proposal.

From the Home News Tribune - “Just Like Old Food, Old Permits Go Bad” and State DEP Head Not A Fan of Permit Extension Act.

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By Steven J. Picco, Esq. and Christina Stummer, Esq. 

In Round Three of the Delaware River boundary dispute between Delaware and New Jersey, the United States Supreme Court ruled yesterday that the states of New Jersey and Delaware have overlapping authority to regulate extraordinary riparian and waterfront improvements that extend beyond the low water mark on the eastern shore of the Delaware River within a circle of twelve miles centered on the town of New Castle, Delaware. See New Jersey v. Delaware, 552 U.S. ___ (March 31, 2008). In a 6-2 decision, the Court rejected New Jersey’s position that its authority was exclusive.

This current boundary dispute over the twelve-mile circle arises from the state of Delaware’s denial of certain permits to a company that proposed to construct a Liquefied Natural Gas (LNG) facility on the eastern banks of the Delaware River in New Jersey. Although the LNG facility would be located on-shore of New Jersey, the wharf that would service the LNG facility would extend into the Delaware River, beyond the low water mark in the twelve-mile circle and into territory belonging to Delaware. See New Jersey v. Delaware, 291 U.S. 361, 385 (1934). When the company sought permission from Delaware’s Department of Natural Resources and Environmental Control (DNREC) to construct the facility, the agency refused permission asserting that Delaware’s Coastal Zone Act prohibited the construction of such an off-shore terminal and heavy industrial use along the Delaware River.

Prior to the 1934 boundary determination, the two states had entered into a Compact in 1905, which was ratified by Congress in 1907. Although this compact did not decide the state boundary within the twelve mile circle at that time, the 1905 Compact contained two jurisdictional provisions, which took center stage during round three of the jurisdictional battle:

“Art. VII. Each State may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature, and to make grants, leases, and conveyances of riparian lands and rights under the laws of the respective States.

Art. VIII. Nothing herein contained shall affect the territorial limits, rights, or jurisdiction of either State of, in, or over the Delaware River, or the ownership of the subaqueous soil thereof, except as herein expressly set forth.”

After DNREC denied the company the authority to construct the LNG facility, New Jersey commenced an action in the Supreme Court seeking a declaration that Article VII of the 1905 Compact gave it exclusive jurisdiction over all waterfront development projects appurtenant to its shores, including wharves extending past the low water mark on New Jersey’s side into Delaware territory. Disagreeing with New Jersey, the Supreme Court ruled that under the 1905 Compact, the state of Delaware retained police power to regulate certain riparian uses that extend outshore from New Jersey beyond the low water mark within the twelve-mile circle.

According to the Supreme Court, the 1905 Compact only afforded New Jersey exclusive governing control over “ordinary and usual” riparian rights for improvements appurtenant to the eastern shore of the River within the twelve-mile circle, extending outshore beyond the low water mark. Examples afforded by the Court of what are “ordinary and usual” riparian rights include “how far a riparian owner can wharf out, the quantities of water that a riparian owner can draw from the River, and the like.”

On the other hand, if improvements “exceed ordinary and usual riparian uses” or are of “extraordinary character,” the Supreme Court ruled that the 1905 Compact granted Delaware the ability to exercise governing authority over the improvements, subject to the rights reserved to New Jersey, once those improvements extend outshore of the low water mark. Although the Court failed to articulate the meaning of its “extraordinary character” test, it held that the LNG facility went “well beyond the ordinary or usual” and that Delaware had retained police power to regulate the proposed riparian use. The Court rationalized, “New Jersey cannot authorize activities that go beyond the exercise of ordinary and usual riparian rights in the face of contrary regulation by Delaware.”

The Supreme Court retained jurisdiction over the matter to entertain all those future disputes as to what is in fact an ordinary versus an extraordinary riparian use. The decision, while important to Delaware and New Jersey, is limited to the interpretation of the Compact between them, and thus will have limited or no impact in other jurisdictions.

However, under on this decision, anyone pursuing a development on the New Jersey shoreline within the 12 mile circle may need Delaware as well as New Jersey approvals under the states’ respective Coastal Zone Management programs. Saul Ewing, with offices in New Jersey and Wilmington, is uniquely positioned to assist in these circumstances.

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In a key ruling addressing the scope of a developer’s responsibility to contribute to off-tract improvements, the New Jersey Supreme Court has held that developers cannot be required to contribute more than their fair share of costs to off-tract improvements.  Toll Bros., Inc. v. Board of Chosen Freeholders of the County of Burlington, __ N.J. __ (Mar. 31, 2008).  The Court also held that the developer’s costs are limited to its pro-rata share even where the improvements are negotiated as part of a developer’s agreement between the government entity and developer.  Furthermore, the Court ruled that if there is a material change to an approved development plan, the developer has the right to apply to have their share of off-tract improvement costs reduced, regardless of whether a developer’s agreement has been entered into between the parties.

As reported in the Star Ledger:

In the first ruling of its type, the state Supreme Court yesterday held that a developer cannot be compelled to shoulder more than its share of the cost of off-site improvements.

The unanimous ruling stems from a case brought by Toll Brothers against the Burlington County freeholders and planning board, involving a development project on property located partly in Moorestown and partly in Mount Laurel off Route 295.

Toll Brothers scaled back the project, but the county wanted the developer to provide $5 million to relocate a major intersection, which the developer had originally agreed to do.

“A vital aspect of the planning process is the ability of developers to return to the planning board and present evidence that a sufficient change in circumstances exists to warrant a modification of previously imposed conditions,” Justice Virginia Long wrote for the court.

The justices overruled two lower-court decisions favoring Burlington County and remanded the case to state Superior Court in Mount Holly. Toll Brothers will have to prove a change in its building plans has made the $5 million road improvement demand unreasonable.

The ruling is a win for developers in that it affirms the limitation on municipal and county planning boards from imposing more than the pro-rata share of infrastructure improvements upon a developer.  Furthermore, it clarifies that developers may reapply to a board to request a re-evaluation of the cost of off-tract improvements imposed, particularly where the scope of a proposed development has been reduced.

For the Star Ledger article, click here.

For the Courier Post article, click here.

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The Daily Journal is reporting that a Cumberland County trial court invalidated Vineland’s revised master plan and subsequent zoning changes as meetings involving an ad-hoc committee (which included four planning board members) appointed to provide suggestions on updating the master plan failed to comply with the Open Public Meetings Act. 

The court found that the failure to provide notice of the committee’s 16 work meetings between April 2005 and September 2006 was fatal to the process.

From the Daily Journal article:

Lakewood-based developer Rudy’s Airport LLC filed a lawsuit in late 2006 seeking to invalidate the master plan. . . . Rudy’s Airport LLC owns a 180-acre former landing strip off Weymouth Road near Willow Grove Lake. The company had proposed building about 360 age-restricted homes on the property. Current zoning rules limit the number of homes to one per 2.5 acres.

The developer alleged the city violated statewide land-use law by allowing the committee to create revisions to the master plan. Rudy’s Airport LLC also alleged the city violated the Open Public Meetings Act when it did not allow the public to attend its meetings. “The idea of the Open Public Meetings Act is, not only are you allowed to make public comments, but you’re allowed to observe the process,” argued the developer’s attorney, Kevin D. Sheehan of Parker McCay in Marlton. “If you can’t observe the process, you can’t be a meaningful participant when it’s time to make public comment.”

Vineland Planning Board Solicitor Frank DiDomenico argued public notice wasn’t required because the committee merely advised the Planning Board and didn’t make any decisions regarding the master plan.

The City has not yet determined whether it will seek a stay of the trial judge’s ruling and appeal or attempt to salvage the master plan through additional public hearings.

While I have not had the opportunity to review the judge’s ruling as it was an oral opinion from the bench, it appears that the judge broadly construed the OPMA in finding that an ad-hoc committee which contained less than a majority of planning board members was in violation of the public meeting notice requirements. 

The ruling, as reported, appears to be a “win” for property owners, developers, citizen activists and any other interested party who claims that key decisions on land use policy have been predetermined before the formal master plan public hearing process has begun.  From the municipal government perspective, it severely constrains a public entity from a process standpoint in that it appears to require that even advisory committees, with no power to take formal action or adopt policy, provide public notice of all meetings.   Here, while Vineland held seven public hearings prior to the master plan adoption, this was not enough to cure the apparent OPMA violation.

However, this may only be the first ruling in a long legal battle.  Before definitive conclusions can be drawn about the impact of this decision, the court’s opinion and the underlying legal rationale for the decision must be carefully examined.  Regardless of the basis for the decision, since this is an unreported decision of a trial court, board members, elected officials, property owners and activists need to put the ruling into context as it has no binding effect on other communities at this point.

For the full Daily Journal article, click here.

For the Press of Atlantic City article on this case, click here.

Editor’s Note:  It appears that the City will appeal the trial judge’s ruling.  See the March 25 Press of Atlantic City article here.

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The Star Ledger reports that the state intends to hold an auction this spring for the former Greystone Park Psychiatric Hospital and 130 acres surrounding it.  The 132-year old structure contains nearly a half million square feet of space and is laden with asbestos and will likely require substantial remedial work if renovated or demolished.  No minimum bid price has been established nor has a date for the auction been set.  

The Star Ledger states that:

The state Treasury Department, in a notice sent in January to Parsippany Mayor Michael Luther, suggested the “highest and best uses” for the excess Greystone property and structures would be residential development and open space. The land is zoned rural residential, a town official said.

. . . .

Representatives of Morris County, Parsippany, Morris Plains and Morris Township, who have interest in acquiring small pieces of the surplus Greystone land, have scheduled a meeting with treasury officials on Monday.

“We need more information on the potential impact of a sale,” Luther said.

Meanwhile, a small group of Morris County and Parsippany officials and historians have formed a committee to consider preservation of the structure.

While some officials are considering preservation of the building and grounds, the cost may be prohibitive and a large portion of the acreage may, ultimately, be available for development.  Morris County has already spent $8 million on the first phase of remediation and demolition for a 300 acre portion of the Greystone property it acquired for recreation and open space in 2001. For the full article, click here.

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Editor’s Note/Update:  The March 16, 2008 Sunday Daily News reports that Governor Paterson will continue support of the Atlantic Yards/basketball arena in Brooklyn…. 

An interesting sideline to the change in the governorship in New York State is the strong anti-eminent domain policy that Lt. Governor David Paterson adopted as a member of the state legislature.  As a result, several economic development projects across the Hudson, including the Atlantic Yards project in Brooklyn, which is slated to be the home of the New Jersey Nets in 2011, “could be derailed or delayed,” according to the New York Sun. 

While Paterson was a state senator, he called for a statewide moratorium on the use of eminent domain. 

As reported in the Sun on March 14:

Mr. Paterson said a decision handed down by the Supreme Court in the Kelo v. City of New London case could lead to a “gold rush” of eminent domain use across the state, The New York Sun reported at the time. He said he would gather legislators and introduce legislation to impose a moratorium on its use.

“He stood with me and proposed some legislation and I am very hopeful that the lieutenant governor and soon-to-be governor will honor his commitment and will either issue a moratorium or review the abuse of eminent domain across New York City,” [City Council Member Letitia] James said yesterday in an interview.

Ms. James’s district is in Brooklyn, and she opposes developer Bruce Ratner’s $4 billion Atlantic Yards project near downtown Brooklyn, which would require use of eminent domain. 

Thus, there is the possibility that if Governor Paterson remains consistent with his prior position, that the Atlantic Yards project, already delayed by lawsuits, environmental reviews and other impediments, could be blocked.  In turn, the question must be asked, particularly in light of recent public debate over whether the Prudential Center in Newark and Izod Center in East Rutherford can co-exist, whether this will have any impact on future development at the Meadowlands Complex or raise the potential of the Nets moving to Newark if the Atlantic Yards project falls through.

Mr. Ratner is planning to build a basketball arena and 16 mostly residential towers on 22 acres in Prospect Heights. The plans would remake the low-rise neighborhood with 8 million square feet of development, including more than 6,000 apartments, “affordable” housing, and office and retail space in a complex designed by architect Frank Gehry.

Perhaps the new New York Governor can reconcile his prior views with the broader economic development goals of New York City Mayor Bloomberg and others in the city and the state, perhaps not.  One thing is certain; the impact of how New York approaches eminent domain will be felt in New Jersey, regardless.

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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.

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