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There’s No Conservation Restriction in My Title: So Why Can’t I Build?

A title search is a vital component of the real property acquisition process. It would be hard to criticize a buyer who proceeds with a transaction, intending to develop or redevelop a parcel, after reviewing title and finding no evidence of a recorded conservation restriction. However, the absence of a conservation restriction instrument recorded in the chain of title may not necessarily mean that the subject parcel is free of restrictions. Conservation restrictions may be applicable by operation of law regardless of whether a deed restriction instrument has been recorded.

This issue was discussed in a recent unpublished Appellate Division decision. In Barry v. NJDEP, App. Div. No. A-2428-17T2, the court affirmed an Office of Administrative Law decision holding that notwithstanding the absence of a recorded instrument, the conservation restriction was applicable by operation of law based on the property owner’s having availed itself of the benefits of a permit issued by NJDEP. The applicable permit required the recording of a conservation restriction for regulated dune areas as a precondition to commencement of construction. The permit provided that commencement of construction constituted acceptance of all the terms and conditions of the permit. Although the conservation restriction instrument was not recorded, construction took place and, as a result, the court agreed that the restriction was accepted by the permittee and applicable as if it had been recorded.

The ability to modify or release a conservation restriction, while not insurmountable, is often a difficult undertaking requiring governmental agency support and approval. NJDEP Commissioner approval is required following a public hearing process and a determination that the release will not jeopardize the public’s interest in protection of the regulated resource. Successful releases typically involve some type of demonstration of a “net benefit” in the form of mitigation compensation.

Persons acquiring property for development purposes should thoroughly review the history of approvals for the subject parcel and include a careful condition compliance investigation as part of the pre-acquisition due diligence to protect themselves against the negative consequences of unrecorded, yet applicable, conservation restrictions prohibiting development.

© 2019 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

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Michael J. Gross, Giordano Law Firm, Environmental Attorney
Shareholder/Managing Partner

Mike, chair of the Environmental Law Practice Area, handles all aspects of New Jersey and federal environmental law, including permitting and litigation, CAFRA, sewage disposal and water supply, wetlands, riparian (tidelands) law, solid waste, flood hazard areas, siting of energy and other industrial facilities, site remediation, Pinelands, Highlands, cultural resources, stormwater, wastewater planning, water and air pollution. He also appears before planning and zoning boards and has handled complex construction litigation matters.

Mike is...

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Paul H. Schneider, Giordano Law Firm, Litigation Attorney
Shareholder

Paul, Chair of the Environmental & Land Use Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. He also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

Paul represents real estate developers and other businesses in all types of environmental and land use matters, including permitting and compliance in the areas of water, wetlands, waste, and air; brownfields redevelopment; site remediation; and transactional. He also represents landowners in cost recovery actions, as well as in enforcement actions brought by government or environmental groups.

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Steven M. Dalton, Giordano Law Firm, Attorney, Environmental - Land Use, Environmental - Site Remediation, Land Use & Development Law ,Cannabis Law, Real Estate, Renewable Energy, Environmental Law, Land Use Law, Litigation
Shareholder

Steve's primary practice is in Environmental Law. He is able to utilize his background in environmental sciences to anticipate, understand and address the issues that his clients confront. Steve assists business and individual clients in state and federal environmental permitting, regulatory compliance, solid and hazardous waste remediation and redevelopment of contaminated sites, underground storage tank compliance, water and sewer rights and approvals, Tideland rights and approvals, and municipal land use matters.  Steve also assists clients with environmental aspects of real estate...

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Marc D. Policastro Shareholder Giordano Law Firm, Business Attorney
Shareholder

Marc, Chair of the Environmental Department, is a transactional, business attorney, who focuses his practice in development, redevelopment, environmental compliance cases, corporate transactional matters, land use, zoning and business counseling. Admitted to practice in New Jersey and New York, he has represented numerous national developers, manufacturers, cogeneration facilities and utilities, automobile dealerships, lenders, borrowers and municipal boards in myriad land use contexts, including commercial and residential development and due diligence matters. He also focuses on complex...

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David J. Miller Shareholder environmental regulatory, real estate and corporate transactional matters attorney
Shareholder

Dave is an environmental attorney with experience in the private and public sectors who focuses his practice on environmental regulatory, real estate and corporate transactional matters. He counsels clients on site remediation, the Industrial Site Recovery Act (ISRA), Site Remediation Reform Act (SRRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), due diligence, participation in potentially responsible party groups and interaction with the Environmental Protection Agency on Superfund matters.  Dave also advises on the procurement of environmental permits...

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