Thanks to SCOTUS, NJ Developers May Navigate Waterways Decisions More Quickly

Peter Reinhart, director of the Kislak Real Estate Institute, Monmouth University (Steve Lubetkin Photo/StateBroadcastNews.com. Used by permission)

WEST LONG BRANCH, NJ— New Jersey commercial developers planning development along the Jersey Shore may be able to navigate administrative agencies more quickly, following a recent unanimous US Supreme Court decision in a dispute over what constitutes a navigable waterway, according to Peter Reinhart , director of the Kislak Real Estate Institute and the NJAR/Greenbaum/Ferguson Chair of Real Estate Policy at Monmouth University. In the case, U.S. Army Corps of Engineers v. Hawkes Co ., the Court decided that property owners trying to get a determination of whether there is a navigable waterway on their property did not have to gamble by either suing the Corps of Engineers or building and hoping the Corps wouldn’t sue them later, explains Reinhart , who is also “Of Counsel” to real estate development law firm Giordano Halleran & Ciesla . “It’s kind of a classic case where the Army Corps of Engineers makes a determination of what constitutes a ‘navigable waterway,’ and if they are, then they are subject to Federal jurisdiction,” Reinhart tells GlobeSt.com exclusively . “The Hawkes company decided they weren’t going to make either of those choices and asked for a judicial determination about whether the Army Corps could do that.” The Court ruled not on the merits of the determination, but the procedural aspect, Reinhart says. The decision permitted the company to treat the Corps’ decision as a “final determination” and they did not have to make the choice of suing or waiting to be sued, he says. In New Jersey, developers who disagree with federal agency determinations can also take advantage of the decision to seek judicial determination and not wait for years of litigation to take place, Reinhart says. What makes the legal situation “more hopeful” for property owners and developers is that the decision follows by several years an earlier decision in Koontz v. St. Johns River Management District, in which the Court overturned a Florida Supreme Court decision that upheld an administrative agency’s requirements that a property owner agree to conditions for development that the owner regarded as excessive in relation to the environmental harm the potential development would create, Reinhart explains. “I don’t know if you can call two decisions a trend, but at least we see some sympathy for the risk level that property owners and developers have in trying to proceed at risk of having their decisions overturned later by an administrative agency,” he says. “The good news is there is a recognition that property owners have rights, and while the administrative agencies are presumed to be acting in the best interest of the public, they need to do so in an expeditious manner, and whatever decision they make, allow the property owner to move more quickly than they were prior to the decision in getting judicial review of their actions.” You can hear the complete conversation with Peter Reinhart in the audio player below.