What You Need to Know

• This case addresses site access to third-party property under New Jersey's Access Statute (N.J.S.A. 58:10B-16). The remediating party sought court-ordered access to install groundwater monitoring wells, but the property owner resisted, citing redevelopment concerns.
• The trial court granted access based on the LSRP’s affidavit, which stated that redevelopment could proceed without damaging the wells if "customary care" was used. The property owner provided conflicting expert testimony about the feasibility of coexisting activities.
• The Appellate Division overturned the trial court’s decision, stating that the conflicting expert opinions required a plenary evidentiary hearing before resolution.
• This case suggests increased hurdles for remediating parties, especially in cases of NJDEP direct oversight or where property owners resist access. Courts may take a more skeptical stance in litigation under the Access Statute, potentially complicating and increasing the cost of obtaining access for remediation efforts.

Where a remediating party requests court-ordered access to a third-party property “in furtherance of its remediation obligations, at the direction of its Licensed Site Remediation Professional (LSRP), and in accordance with the Access Statute,” it would seem that this request should be easily granted. Not so fast, says the Appellate Division in its recent decision in Beazer East, Inc. v. Morris Kearny Associates Urban Renewal, LLC.

Under N.J.S.A. 58:10B-16 (the “Access Statute”), a remediating party “who requires access” to a third-party site “may enter upon the property to conduct the necessary remediation if there is an agreement, in writing, between the” remediating party and the property owner. Where, despite good faith efforts, the remediating party and the property owner are unable to reach an agreement, the remediating party “shall seek an order from the Superior Court directing the property owner to grant reasonable access to the property and the court may proceed in the action in a summary manner.”

In furtherance of its remediation obligations, at the direction of its LSRP and in accordance with the Access Statute, Beazer East sought access to property owned by Morris Kearny Associates Urban Renewal, LLC (“Morris Kearny”) for the installation of two groundwater monitoring wells. Morris Kearny “denied” this request, “claiming that plaintiff’s installation of the wells would interfere with [its] contractual obligations” to redevelop the property. Morris Kearny proposed that Beazer East either wait for the completion of the redevelopment activities or provide an indemnification for any damage to the wells resulting from the site development, including by intentional or reckless conduct. During initial negotiations it seems that Morris Kearny did not provide a timeframe for its construction activities.

Based on Beazer East’s LSRP’s affidavit stating that the wells could be installed and damage could be avoided by the practice of “customary care,” the Chancery Division trial court granted access. The LSRP affidavit explained “that [Morris Kearny] could engage in its redevelopment of the property without damaging wells by exercising customary care.” The LSRP offered his expertise and “experience at multiple construction and redevelopment sites undergoing simultaneous remediation” in support of his position.

In opposition, Morris Kearny “submitted a conflicting affidavit from the vice president of a consulting, engineering, and construction management firm stating that the wells could not be installed prior to [the] construction at the redevelopment site.” Specifically, the vice president stated that excavation on the property would create “craters that extend to [ten] to [twenty] feet below current grade and reduce surface elevation by several feet, perhaps more than [ten] vertical feet such that the monitoring wells would be damaged, undermined, buried, compromised or destroyed.”

In granting access and then denying Morris Kearny’s motion to reconsider that decision, the trial court stated that it “relied more strongly on the opinion of the LSRP.” However, the Appellate Division held that the trial court abused its discretion in denying the reconsideration motion because “the court had erred in its issuance of the access order by deciding a material factual dispute without conducting an evidentiary hearing.” Per the Court, it is “well-established” precedent that “a court, when presented with conflicting factual averments material to the issues before it, ordinarily may not resolve those issues without a plenary hearing.” The Court cites a single case, J.G. v. J.H., 457 N.J. Super. 365 (App. Div. 2019), for this doctrine. Notably, J.G. v. J.H. is a family law proceeding in which there is a custody dispute and the parents offer conflicting testimony. Arguably, a case in which a licensed professional offers an affidavit within the scope of his or her expertise presents a different query than family matters and custody disputes might. But the Appellate Division did not consider this distinction in its decision.

Of potential significance, for the first time on appeal, Morris Kearny argued that Beazer East’s LSRP “lacked the authority … to require” installation of the wells because, per Morris Kearny, the remediation case was in direct oversight and approval of the New Jersey Department of Environmental Protection (“NJDEP”) was required for the well installation. The Court allowed the parties to supplement the record to reflect that the NJDEP did approve the well installation and to provide evidence  regarding the direct oversight status of the case at the time of the access request. However, after ruling that the issue was not moot despite NJDEP’s approval and then discussing the factual dispute in some detail, the Appellate Division ultimately did not decide that issue on appeal because it was not properly raised to the trial court. Remediating parties subject to direct oversight might expect to see this issue raised again in access disputes.

Key Takeaway

In situations involving direct oversight or in any case where a property owner is determined to resist and willing to litigate over access, the skeptical posture taken by the court in this case may make it more difficult and costly for remediating parties to obtain access.

For more information, contact the author, Jordan Asch, at jasch@riker.com, or any attorney in our Environmental Practice Group.