Rebuilding and Restoring Commercial and Residential Property after Hurricane Sandy
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New Jersey and New York residents have suffered through one of the most difficult storms in American history with an unmatched trail of destruction in this part of the country. Now (and well over the next few years), comes the process of rebuilding what was lost or damaged. There will be serious economic and emotional components of the rebuilding efforts in New Jersey and New York. Property owners and businesses may also confront insurance coverage, legal, governmental and regulatory challenges as they seek to restore their property, rebuild their business or start new enterprises in the wake of Hurricane Sandy.
Many of the most damaged areas are located along coastal and inland waterfronts. New Jersey and New York property owners in these areas may have to comply with a multitude of state, federal and local permits that may apply when construction activity is planned for waterfront zones. In such heavily regulated waterfront property, it is not uncommon for reconstruction within the same footprint to be easier to accomplish than attempts to enlarge the development. It is possible that, in order to expedite recovery, some permitting or other legal requirements may be relaxed. Indeed, we may see tremendous pressure on the government to cut through red tape when reasonable redevelopment applications are presented.
New Jersey and New York property owners and developers may also be required to address freshwater or coastal wetlands requirements as part of their redevelopment plans. Again, while simple replacements of like-kind development should be routinely available, the devil is often in the details. Moreover, regardless of the difficulty, one must ensure that every required step be taken where wetlands permits are required by either the state or federal government. Otherwise, post-development enforcement measures could result. Our attorneys and clients often find the best results where wetlands permitting and possible mitigation is addressed in the pre-planning phase. The last thing a developer or property owner wants is to face an enforcement action after they have spent considerable time, effort and financial resources on rebuilding efforts.
We can also expect tidelands applications to be a component of the post-Hurricane Sandy redevelopment process. At a minimum, property owners who are rebuilding in tidally flowed areas may seek assurances that the State is not asserting any previously unasserted tidal claims. This process can usually be handled administratively, without the need for litigation or expenditure of considerable resources. Regardless of whether the process is simple or more complex, it would be a serious mistake to proceed without ensuring that these potential government interests will not later haunt property owners and developers who have invested substantially in restoration projects.
When developing waterfront property, it will also be essential that developers consider and comply with public access requirements. Just before Hurricane Sandy, Governor Christie announced his administration’s new public access regulations. These new regulations apply to beach access as well as public access to other coastal areas. These new regulations are the latest development in New Jersey’s evolving beach access laws, and we expect that they will figure prominently as we restore the shore.
Typically, we can expect our government agencies to be sympathetic and helpful as long as the applications are reasonable and amount to a replacement in kind. What state regulators may be concerned about are those applications that may overdevelop particularly sensitive areas that may be vulnerable to repeat storm events. We may also see local governments (particularly those in the coastal zone) adopt ordinances targeted at removing barriers and speeding redevelopment.
In short, New Jerseyans and New Yorkers restoring and rebuilding in the wake of Hurricane Sandy may have to confront various governmental environmental regulatory requirements, as well as local construction code, planning and zoning laws. As the dust settles, and we begin to return to our routines with an eye toward redevelopment, it will be important to apply for required approvals as early in the process as possible. This disaster has been so difficult for so many people. Our attorneys and counselors are here to ensure that this difficulty is not further compounded by legal requirements that are not fully satisfied. In the painstaking work of rebuilding our coastline and beloved areas, the environmental, land use and redevelopment team at Lieberman & Blecher will be hard at work with our clients, presenting dynamic and proactive redevelopment plans that avoid delays and needless setbacks so that we can focus on restoring the places that add such character and spirit to the places we call home.