Search Site
Menu

Appellate Division Sheds Light on Procedural Requirements for Certain Environmental Claims

A recent Appellate Division case shed some light on certain procedural requirements for environmental claims. In Bradley v. Kovelesky, et al., Docket No.: A-0423-14T4, the claims before the court pertained to an 8.3 acre property in Middletown Township. Lawrence Carton, deceased June 2007, purchased the property January 2006. Carton set out to build a residence on the property, but work stopped after the Department of Environmental Protection (DEP) issued notices of violation concerning solid waste and land use issues. Carton retained an environmental consultant and found that the soil and groundwater contained excess concentrations of benzo(a)pyrene, arsenic and other contaminants. The remediation efforts continued into 2012.

In July 2012, Carton’s estate sued certain prior owners of the property under various theories of law. Count one was for contribution under the Spill Act, N.J.S.A. 58:10-23.11f, and count two was for the same under the Brownfields Act, N.J.S.A. 58:10B-1.3, the Site Remediation Reform Act, N.J.S.A. 58:10C-28, and the Spill Act. There were four other common law counts for strict liability, negligence, trespass and nuisance.

The defendants argued that the Spill Act claim was time-barred under N.J.S.A. 2A:14-1, which established a six-year limitations period, and that the claims under Brownfields Act and the Site Remediation Reform Act were improper because those statutes do not have a private cause of action. Additionally, the defendants argued that the plaintiff’s private cause of action under the Environmental Rights Act (ERA) was not properly invoked because notice was not timely made. In this regard, the plaintiff’s filed a motion to amend their complaint to include its post-haste ERA notice. The trial court denied this motion.

The Appellate Division relied on the New Jersey Supreme Court’s recent decision in Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015) to hold that the Spill Act claims were not time-barred by the six-year statute of limitations. The court also denied the defendants equitable defenses of laches and unclean hands based, in part, on Morristown Associates, and because one cannot have laches applied against him or her where that person is unaware of his or her rights to assert a claim. The relevant inquiry, according to the Appellate Division, is “when the plaintiff discovered facts supporting a cause of action.” In addition, though the court agreed that the Brownfields Act and the Site Remediation Reform Act each lack a private cause of action, it found that the trial court erred in denying the plaintiff’s motion to amend its complaint so as to properly employ the ERA, despite the post-haste notice. Of note, the court also determined that the continuing environmental violation was likely to recur in the future, thus further satisfying the ERA.

As to the common law claims, the court determined that these were technically survival claims and thus subject to a two-year statute of limitations. Accordingly, these claims were dismissed save for the nuisance claim due to the fact that the plaintiff’s had alleged a continuing nuisance, and such claims continually accrue, “triggering a new limitations period each day the nuisance is not abated.”  The matter was affirmed in part, reversed in part, and sent back to the trial court for further proceedings.

The attorneys at Lieberman Blecher & Sinkevich P.C. have handled countless cases involving New Jersey’s Spill Act and Environmental Rights Act.

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • DEP urged to set tough limit on 1,4-dioxane in drinking water. https://t.co/UESauZowsJ
    1 month ago
  • Beach access issue returns in Cape May County beach community, near the location of a similar issue that was litiga… https://t.co/tWOMcfTqwM
    2 months ago
  • Another effort to make the Delaware Water Gap a national park is underway. https://t.co/C00NZ43nZU
    2 months ago
  • New Jersey seeks designation of Lower Hackensack River as a federal Superfund site. https://t.co/czOI3hDNb2
    2 months ago

Recent Blog Posts

Environmental Hearing Requests by Third Parties: An Update

In 2010 this author contributed an article discussing the difficulty that anyone other than an applicant had in administratively contesting a permit. Stuart J. Lieberman and Shari M. Blecher, “It’s
Read More
Environmental Hearing Requests by Third Parties: An Update

Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

In Shipyard Assocs., LP v. City of Hoboken, 242 N.J. 23 (2020), the Supreme Court held that the City of Hoboken could not block a waterfront residential development by enacting
Read More
Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

The law firm of Lieberman, Blecher & Sinkevich is  proud to announce that Michele R. Donato, Esq. has become Of Counsel with their firm. Ms. Donato has specialized in land use,
Read More
Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In December 2020, the Southern District of New York filed a lawsuit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) against the Village of Airmont. The suit alleges
Read More
RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In the media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form