In a recent unreported Appellate Division decision, Beazer E., Inc. v. Morris Kearny Assoc. Urban Renewal, LLC, the court addressed a dispute over a plaintiff’s right to access a defendant’s property to install groundwater-monitoring wells under the New Jersey Access Statute. The case provides insights into the balance between site remediation and commercial redevelopment.

The plaintiff, Beazer East, Inc., sought access to a portion of property being redeveloped by the defendant, Morris Kearny Assoc. Urban Renewal, LLC, to install monitoring wells as part of site remediation under the New Jersey Spill Compensation and Control Act. Under the New Jersey Access Statute, the plaintiff argued it was entitled to the access, while the defendant claimed that allowing the well installation would interfere with its contractual obligations to build site improvements and warehouses as part of a commercial redevelopment effort.

The trial court sided with the plaintiff, granting access to the defendant’s property, reasoning that both parties’ activities—site remediation and commercial development—could occur simultaneously without interfering with one another.

The defendant filed a motion for reconsideration, arguing that there was a change in circumstances and that the installation of the wells would now be technically impossible without disrupting its commercial development plans. The change in circumstance centered around the defendant obtaining a zoning certificate, which allowed them to provide a timeframe for the site improvements. The defendant also raised concerns that the Licensed Site Remediation Professional (LSRP) lacked the authority, under the Site Remediation Reform Act, to order the installation of monitoring wells without approval from the NJDEP.

On appeal, the court found that the trial court had abused its discretion in denying the defendant’s motion for reconsideration. This was in part because both parties pointed “to conflicting evidence concerning the nature to the NJDEP’s involvement – and whether it included direct supervision-over the remediation at the site when the LSRP had directed installation of the wells.” In this way, the trial court had decided a material factual dispute without conducting an evidentiary hearing.

The court also found that the motion court erred by granting the plaintiff’s access order “based on a finding that defendant’s construction and excavation at the site could occur at the same time as the installation of the wells.” This was because both parties submitted affidavits that presented “conflicting facts and opinions” on the feasibility of the arrangement.

This case underscores the importance of properly resolving factual disputes and conducting thorough hearings when evidence is conflicting. It further shows that the priority of redevelopment projects or site remediation is a highly factual inquiry.