Many New Jersey communities face a variety of health risks, which can be generated by environmental factors as well as underlying economic and social challenges existing in the community. Access to nutrition, drug use and abuse, aging, exposure to lead and other toxins in the home, access to health care, communication with health and social service providers, specific environmental conditions and other factors impact human health and the health status of residents in specific neighborhoods and municipalities.
On a general level, we know that changes to the human landscape and the ecosystems in which we live are inextricably linked to the health of our species and that of the ecosystems themselves. Diseases emerge and spread due to complex interactions of social, ecological and environmental factors. Accordingly, public health officials and others must employ methods to engage community members in order to identify their health concerns, take action on their environmental health problems, and improve their health and quality of life. Partnerships between city planners, physicians, ecologists, and others must be forged so that community members can participate in the design of healthier surroundings and the development of protocols to ameliorate current problems.
It is NJ Appleseed’s mission to provide legal representation to the state’s most vulnerable residents and their communities with respect to developments that impact their health status and quality of life, by negatively impacting their physical environment. Our principal goals and focus are:
- to secure affordable and safe living environments for low and moderate income residents;
- to negotiate Community Benefit Agreements for areas affected by development which receive public subsidies;
- to provide educationally adequate and safe outdoor playgrounds for urban schoolchildren to improve their physical and mental health; and
- to supply legal services and technical assistance to residents of Newark to enable their participation in the development process in Newark.
Sustainable and Equitable Local Development Project
New Jersey has a strong network of community housing developers and other locally based community organizations that not only provide social services to residents in their communities, but also act as advocates, especially in the areas of affordable housing, environmental protection and land conservation. Locally generated campaigns in response to local events or developments sometimes need legal representation to initiate court action or intervene in ongoing litigation to protect their interests. When our goals mesh, NJ Appleseed represents such groups as a partner in the fight for sustainable, equitable and environmentally sound development. We currently represent or have represented:
NJ Appleseed was as an Amicus in a case that challenged the discriminatory use of federal transportation funds to build an extension of the Atlantic City Expressway, thereby destroying a significantly sized middle-class Black neighborhood. One of the early environmental justice cases, it proceeded until the U.S Supreme Court held (in a separate matter) that there was no private right of action under Title VI.
Bryant v. NJ Dept. of Transportation, 987 F. Supp. 343 (D.N.J. 1998).
Bryant v. NJ Dept. of Transportation, 998 F. Supp. 438 (D.N.J. 1998).
Bryant v. NJ Dept. of Transportation, 1 F. Supp. 2d 426 (D.N.J. 1998).
NJ Appleseed represented a group of residents, Bernards Township Citizens for a Safe and Clean Quarry, who challenged the municipality’s decision-making on the clean-up of the Millington Quarry. The dispute was resolved in 2016 when the municipality agreed to some demands of the plaintiffs with respect to the property and they became aware of the “new” fact that the Quarry had a contract with a party interested in developing the property for residential purposes.
Bernards Township Citizens for a Safe and Clean Quarry, Inc. v. Township of Bernards, Docket No. SOM-L-803-14.
December 11, 2015 Letter Brief to Court.
February 22, 2016 Letter to Court re settlement.
Township of East Brunswick
On Dec. 10, 2020, NJ Appleseed filed an amicus curiae brief with the Appellate Division in Hidden Oak Woods v. Township of East Brunswick on behalf of two environmental organizations, the Lawrence Brook Watershed Partnership and the Lower Raritan Watershed Partnership. East Brunswick is appealing a trial court decision reversing the Planning Board’s 2019 denial of permission to build an apartment complex on the 42-acre Hidden Oak Woods site, because the developer failed to comply with a request for an up-to-date letter of interpretation from the state regarding the location and extent of environmentally sensitive freshwater wetlands on the property, relying instead on one from 2003. The trial judge believed that the denial was based on animus toward the 275-unit project, including 55 affordable housing units to be built pursuant to a 2016 settlement between the town and the Fair Share Housing Center. It also faulted the Planning Board for allowing public testimony against the project, including presentation of an objector’s case, even though such public participation was consistent with the Board’s policy. NJ Appleseed took on the representation to vindicate not only the environmental and public health and safety concerns related to the project but the right of the public to be heard on those concerns.
The Appellate Division affirmed on July 30, 2021, agreeing with the trial court that the denial of site plan approval by the Planning Board was arbitrary and capricious, based mainly on traffic issues related to the proposed development. The judges, however, disagreed with the disqualification of the Mayor from participating in the Planning Board proceedings based on a supposed conflict of interest shown by his public comments opposing the development. Further, the panel suggested the Planning Board would have been correct to condition approval on the developer securing a new Letter of Interpretation, given that the old one had expired.
Notice of Motion
Certification of Renée Steinhagen
Exhibits A to F
Exhibit F (more readable copy) — Maps showing entire site considered a Critical Environmental Site
Exhibits G to J
City of Hoboken
NJ Appleseed represents the Fund for a Better Waterfront in supporting Hoboken’s efforts to enforce its anti-flooding safety ordinances in order to prevent construction on the Hudson River waterfront.
Pursuant to a 1997 agreement with Hoboken allowing construction of a large residential development, the developer was also supposed to reconstruct a pier to provide tennis courts and open recreational space for the public. Instead, in 2011, the developer filed an amended site plan application seeking to construct two high-rise residential towers on the pier. It proceeded to secure an automatic approval when the Planning Board dismissed the application without prejudice because the City had gone to court to enforce the developer’s agreement, the application lacked variance requests, and the developer did not have the consent of the City as required by the developer’s agreement.
The Appellate Division has repeatedly ruled for the developers on a variety of issues, including affirming automatic approval for the plan to build more towers instead of adding public recreational space, and the Supreme Court has declined appeal.
Our most recent petition for certification, filed February 6, 2019, sought review of a January 7, 2019 appellate ruling that denied retroactive enforcement of the flood ordinances, adopted in 2013 in response to catastrophic flooding in Hoboken caused by 2012’s Superstorm Sandy, to a project that already had final site plan approval. We urged the Court to hear the appeal because it is important that municipalities have the ability to enforce flood prevention protections at a time when storms are increasing in severity due to climate change. On June 3, 2019, the Court granted certification on the following question: Were the ordinances at issue zoning ordinances subject to the Municipal Land Use Law (MLUL), and if so, were they exempt from N.J.S.A. 40:55D-52(a) because they relate to public health and safety?
On May 5, 2020, the Court held that the ordinances were subject to the MLUL and refused to recognize a health and safety exception to N.J.S.A. 40:55D-52(a), which prevents the application of zoning ordinances passed within two years after final approval of a project. The decision allows the developer to go ahead and construct the two high-rise towers on the pier even though they would be barred under current flood-prevention ordinances.
Appellate Brief in Shipyard Associates v, Hoboken Planning Board, A-4504-14.
Appellate Brief in Shipyard Associates v. Hudson County Planning Board, A-4763-14.
Appellate Brief in City of Hoboken v. Shipyard Associates, A-4637-14.
Appellate Division Opinion in consolidated appeals. (August 2, 2017).
N.J. Supreme Court Petition No. 079967.
Appellate Brief in Shipyard Associates v. City of Hoboken, HUD-L-1308-16.
Jersey City (Morris Canal Area Redevelpment Area Community Development Corporation)
NJ Appleseed is co-counsel in a lawsuit filed against Jersey City in Hudson County Superior Court on January 30, 2021, seeking to strike down a law, passed in violation of a community empowerment mandate, that clears the way for a 17-story, 420-unit development on land that had been slated for greenspace. We represent the Morris Canal Redevelopment Area Community Development Corporation (MCRACDC), a nonprofit urban development organization that grew out of a neighborhood coalition in the Lafayette section of Jersey City, once the eastern terminus of the Morris Canal. Established to insure the community was included in decision-making regarding redevelopment in the area, MCRACDC helped create the Morris Canal Redevelopment Plan, which requires the City and developers to work with it and obtain its input before making changes to the Plan or Redevelopment Area. Instead, Jersey City allegedly failed to do so and violated both NJ law and the Redevelopment Plan and also engaged in spot zoning—changing the zoning of the site in question for the benefit of a developer at the expense of the community. NJ Appleseed became in involved in the case, as co-counsel with the firm Matsikoudis and Fanciullo, to enforce the unique community empowerment provisions requiring community participation in the decision-making about what gets built and where in the Morris Canal Redevelopment Area.
Jersey City (Challenge to Inclusionary Zoning Ordinance)
In March 2021, NJ Appleseed sought and was granted amicus status in a lawsuit brought by the Fair Share Housing Center against Jersey City to invalidate the City’s Inclusionary Zoning Ordinance, adopted in October 2020. FSHC’s Complaint in Lieu of Prerogative Writ alleged that the ordinance had been rushed to adoption over public opposition in an unlawful process that circumvented the Municipal Land Use Law requirement that such an ordinance first be referred to the Planning Board and because it gave local officials unfettered discretion to trade away affordable housing as part of quid pro quo agreements with favored developers. NJ Appleseed participated in the case because of our longstanding interest in equitable, sustainable, and environmentally sound development and our then-current representation of the Morris Canal Area Community Development Corporation in a case implicating the same ordinance.
Hudson County Superior Court Judge Joseph Turula granted FSHC’s motion for summary judgment on August 12, 2021, following oral argument in which NJ Appleseed Executive Director Renée Steinhagen took part. Turula declared the entire ordinance null and void based on the City Council’s failure to follow the procedure mandated by state law in adopting it. The court was also concerned that ordinance provisions allowing officials to trade off affordable housing obligations in exchange for community benefits were so “free wheeling” that the ordinance posed “significant risk for abuse, favoritism, or bad faith.” This matter is also discussed on our website’s Government and Corporate Accountability page under the Prerogative Writ Project heading.
Additional Documents–NJ Appleseed Amicus Certification
Fair Share Housing Center Motion for Summary Judgment Brief
Jersey City (Van Vorst Park Association)
Serving as co-counsel with local land use attorney Cynthia Hadjiyannis, NJ Appleseed intervened on behalf of the Van Vorst Park Association. We challenged the automatic approval of a developer’s plan because of the Jersey City Zoning Board’s failure to take timely action on the application, even though there were questions about whether the plan was consistent with the zoning requirements of the redevelopment plan that applied to the site with respect to density. In an unpublished decision, the appeals court erroneously applied an abuse of discretion standard and simply affirmed the trial court’s finding that the City did not hold a hearing within the statutory time frames and did not defer to the Planning Board’s determination that the application was not complete.
Bright and Varick Urban Renewal Co., LLC v. Jersey City Planning Board, A-2040-14 (App. Div. 2017), cert. denied (2017).
City of Newark
Society Hill–In 2012, lead contamination was discovered in the soil of the Society Hill condominium complex in Newark, the residue of a smelting operation that operated on the site from 1907 to 1974. Following a 2014 cleanup by the NJ Department of Environmental Protection, we worked with the Rutgers Community Law Clinic to advise the homeowners’ association regarding the Deed Notice that must be filed documenting the clean-up work performed on the property and exploring a complaint against the developer of that association to cover any and all costs associated with that Deed Notice.
EPA Site Evaluation.
Switching Station–NJ Appleseed represented the Urban League of Essex County in its challenge to a PSE&G switching station to be built on property in Newark that was slated to be rezoned as large-scale retail space under the City’s new master plan. The challenge involved concerns about the safety of the facility, its design and negative impacts on the community, including detrimental health and environmental impacts, and its failure to create jobs for residents. The Urban League prevailed before the Newark Board of Adjustment, but PSE&G appealed that decision to the Board of Public Utilities. After trial, all parties agreed to a settlement whereby the community was given some say over the wall surrounding the property, lightning rods were lowered, and monies were set aside to create a community center in the neighborhood. The Urban League itself was given rights to redevelop approximately two acres of the property adjoining the switching station.
In the Matter of the Petition of PSE&G from a decision of the City of Newark Zoning Bd. of Adjustment, BPU Docket No. EO14020185, OAL Docket No. PUC 04056 (Jan. 21, 2015).
Pamphlet by one of ULEC’s expert witnesses: Hope Cohen, The Neighborly Substation: Electricity, Zoning, and Urban Design (Manhattan Institute, 2008).
News Article: “Newark Residents and PSE&G power station work to get along,” Star Ledger (March 16, 2018).
Township of North Bergen
Working with the Columbia Law School Environmental Center, we sought to reverse a Hudson County Planning Board decision permitting the developer to establish three commercial buildings at the foot of the Palisades by removing all the trees and soil that had accumulated on the cliffs and thereby creating enormous flooding problems on River Road.
Coalition to Preserve the Palisades Cliffs, Inc. v. Hudson County Planning Bd., Docket No. HUD-L-5224-09.
In 2020, NJ Appleseed was asked to conduct research on the law governing passenger facilitiy charges on behalf of Newark Airport City (NAC), a coalition of universities, government bodies, and research entities coordinating to maximize the benefit to the City of Newark from its airport. The Coalition alleged that there was an inequity concerning the inability of South Ward of Newark residents to access the New Jersey Transit/Amtrak line at the airport station, which was built with federal funds. The group was told that the line was not for the community, only airport users and employees. Because the exclusion of local residents inhibits the economic development, both public and private, of the areas immediately adjacent to the station and train tracks, the group asked us to determine whether there was a legal basis to challenge the Port Authority’s position with respect to the airport station. Based on our research, we concluded that federal civil rights law would not assist NAC’s advocacy efforts regarding past financing decisions and suggested instead that NAC focus on “new decisions” with respect to the proposed modernization of the station and monorail system, and seek to compel the Port Authority to consult with and listen to the desires of the South Ward community as it plans the new PATH station terminating at that station. Pursuant to environmental justice regulations, the Port Authority has the obligation to consult with the community and to make sure that its financing decisions with respect to the PATH terminus and NEC station (going forward) will enable both facilities to be used by the public, not just those members of the public who are users of the airport.
Reframing as Public Health Project
How we frame an issue or problem often determines the information we deem relevant to the issue, how we present or use such information, and the conclusions or recommendations we reach. For too long in the United States, experts have tended to emphasize personal responsibility and personal attributes such as skill or work ethic when explaining behavior or trends among people generally, and more particularly, among those residing in minority, urban communities. Their explanations tend to minimize the role of structural forces, such as racism and other social factors imbedded in the situation surrounding the person. Now, policy makers are realizing that reframing issues such as gun violence among youth, high-school drop-out rates, and other criminal justice issues as health issues may lead to different interventions and ultimately more effective solutions. NJ Appleseed has been eager to adopt the public health lens when appropriate, and upon request, addresses traditional public issues as part of this project. Specifically, we are or have been been involved in the following initiatives:
On behalf of a local ACORN chapter, we filed an Amicus Brief in support of Jersey City’s gun purchase frequency restriction in an action where a gun shop was challenging that ordinance as unconstitutional and preempted by state law. Seton Hall Law School’s Litigation Clinic represented Jersey City. The appellate court found the law invalid due to state preemption.
Association of New Jersey Rifle & Pistol Clubs, Inc. v. City of Jersey City, HUD-L-3600-06; A-4443-06 and A-4708-06 (Sept. 29, 2008).
Lead Poisoning in Housing
In 2003, NJ Appleseed filed an Amicus Brief on behalf of the Alliance for Healthy Homes, American Public Health Association, New Jersey Citizen Action, Association for the Children of New Jersey and Statewide Parent Advocacy Network in an action brought by municipalities against lead paint companies, alleging they caused and contributed to the creation of a public nuisance along with other claims. The Appellate Division allowed the public nuisance claims to proceed but the NJ Supreme Court reversed in 2007.
In re Lead Paint Litigation, A-1946-02 (App. Div. Aug. 17, 2005).
Outdoor Recreational Space and Children’s Health
NJ Appleseed was approached by the Trust for Public Land to devise a legal challenge that would result in more outdoor recreational space associated with schools in urban areas of New Jersey. In response, we developed a theory based on the state constitutional right to an education, including the provision of proper and adequate infrastructure to support that education, and published a book that justifies the need for outdoor recreational space in the context of children and adolescent cognitive development and NJ’s mandated curriculum and provides model school yards for students of all ages.
Selim Iltus & Renée Steinhagen, Where Do Our Children Play: The Importance and Design of School Yards (2003).
Religious Exemption to Immunization
In New Jersey, the Department of Health liberalized the use of the religious exemption to mandatory immunization to permit parents who opposed immunization to simply state that they were exercising their right due to their religious belief, with no further explanation. Working with public health experts, we sought to change that regulation through the Legislature. We gave testimony before both the Assembly and Senate; made a presentation to NJ public health officials at their annual convention, and issued a white paper (with assistance from Latham & Watkins): Constitutional Framework of Exemptions to vaccination requirements: A White Paper (2011).
Op-ed titled “Objections to Vaccination Must Be Validated,” published in the February 2, 2011 Star Ledger. Co-authored with Drew Harris, Chair of NJ Public Health Institute.
During the 2019-2020 legislative session, New Jersey came close to passing A-3818/S-2173, which would have expanded the rate of vaccination by barring nearly all exemptions for students at public or private schools, including colleges, as well as child care centers. The bill narrowly passed the Assembly but was pulled from a vote on the Senate floor on the last day of the session, in January 2020, because it was two votes short to pass that house. It was reintroduced a few days later in the new session as A-969/S-902, shortly before the public health emergency caused by the COVID-19 pandemic. On May 10, 2020, Rutgers professor Jennifer Rosen Valverde, who is co-chair with NJ Appleseed Executive Director Renée Steinhagen of the greater Newark Health Care Coalition’s Legal Advocacy Committee, published this op-ed in the Star Ledger, calling for passage of the vaccine bill, the need for which has been shown more clearly than ever by the COVID-19 crisis.
From time to time, NJ Appleseed partners with and supports the efforts of other organizations, in New Jersey and nationally, that take the lead on environmental and environmental justice issues.
Those activities often overlap with our advocacy for Government and Corporate Accountability as in our work for the Pinelands Preservation Alliance, NJ Sierra Club, Environment NJ, and NJ Conservation Foundation to enforce conservation restrictions and open space protections, and our involvement in efforts by NJ communities to preserve public control of water and sewer systems in Newark, Atlantic City and Edison.
HUD Disparate Impact Rule
On October 18, 2019, NJ Appleseed joined with more than 30 groups and individuals, including the NRDC, Sierra Club, and Community Justice Project, in submitting comments in opposition to a proposed rule change by the Department of Housing and Urban Development (HUD) that would make it harder to prove discrimination complaints under the Fair Housing Act. The proposal, published in August, would affect HUD’s Discriminatory Effects Rule, adopted in 2013, which embodies a long-standing legal theory for proving housing discrimination by showing that a facially neutral policy or practice has a disproportionately adverse impact, regardless of discriminatory intent. The revised rule includes a stringent five-part test that requires showing that the policy or practice in question is “arbitrary, artificial and unnecessary to achieve a valid interest or legitimate objective,” that the disparity is “significant,” that the alleged injury is directly caused by the policy or practice and that there exists a “robust causal link” between the policy or practice and the disparate impact. The comment compares the proposed HUD rule with similar standards already in use by the Environmental Protection Agency with regard to environmental discrimination that have resulted in an abysmal record of civil rights enforcement.
That same day, NJ Appleseed also signed on to a letter urging HUD to leave intact its existing Discriminatory Effects Rule.
PLANewark is a network of architects, planners, and other professionals, who have made Newark their home and who want to influence development in Newark by participating in the local planning process (and enabling other residents to participate as well). It is fully committed to building a vibrant and reinvigorated Newark through equitable and sustainable environment, land-use, and transportation planning practices.
It is an unincorporated association established as a project of NJ Appleseed but it has its own officers and sets its own programmatic agenda. An officer of PLANewark sits on NJ Appleseed’s board, and NJ Appleseed Executive Director Renée Steinhagen is a member of PLANewark, which has its own page on this website.
The group emerged from a drawn-out legal struggle against the construction of a surface parking lot in the Ironbound section of Newark, after being successfully represented by NJ Appleseed in the Appellate Division.
That case was Caro v. 28 McWhorter St., an action in lieu of prerogative writ to overturn the Newark Zoning Board of Adjustment’s grant of variances and site plan approval for the lot, bordered by McWhorter, Union and Hamilton Streets. We lost in the lower court but the Appellate Division reversed in 2016, finding that the defendant failed to satisfy either the positive or negative criteria needed for a variance. Among other things, it did not show that a variance could be granted without substantial detriment to the public good and that it would not substantially impair the intent and the purpose of the Master Plan and zoning ordinance. The Supreme Court then denied the defendant’s request for review. Here are our Appellate Brief, Reply Brief and an Amicus Brief supporting our position filed by the Eastern Environmental Law Center on behalf of the Ironbound Community Corporation, the Greater Newark Conservancy and the Gateway Group of the New Jersey Sierra Club.
In 2017, when the owner tried again for a variance that would allow it to operate the lot at 28 McWhorter, we opposed the application on behalf of PLANewark. In a March 16, 2017 letter to the Newark Zoning Board of Adjustment, we urged denial of the application based on the doctrine of res judicata in light of the Appellate Division having found in its 2016 decision that surface parking did not meet the use requirement for a variance. The owner had nevertheless continued to operate the lot in disregard of the court holding and was seeking another bite of the apple, despite the fact that there were no changed circumstances warranting a different outcome. We included a document comparing the original 2012 application with the one in 2017. The application was withdrawn.
In March 2015, Newark adopted a new Zoning Ordinance, which was the culmination of a long, and truly participatory Master Plan Reexamination process that was initiated and completed during the Booker Administration. This new Zoning Ordinance was not just an update, but an overhaul of Newark’s zoning rules, which had not been significantly altered in over 50 years. PLANewark believes that it is now time for buildings in Newark to follow the newly established rules and move away from the default “building by variance” that was a result of having an outdated code.
MX-3 Zoning Challenge
Unfortunately, the City of Newark chose to do otherwise in October 2017, when it passed an ordinance creating a new MX-3 zoning district that allows building heights of up to 20 stories, versus eight maximum under the previous zoning’s mid-rise residential district. On November 27, 2017, we sued on behalf of PLANewark, alleging that the MX-3 zoning was inconsistent with the Master Plan and violates state law requiring that zoning take into account the “character of each district and its peculiar suitability for particular uses.” In addition, the requisite legal notice was not provided to all nearby property owners and public comment was not allowed at one of the hearings, in violation of due process.
We moved for summary judgment in August 2018. Here are our Brief in Support, Statement of Undisputed Material Facts, and supporting Certifications by: PLANewark board member Lisa Scorsolini; professional planner and architect Jerome Eben; and nearby property owners Lisa Sanders and Aleix Martinez.
Other legal representation we have provided to PLANewark also involved parking lots.
Edison, probably Newark’s largest parking company with a dozen downtown lots, sought to expand two of them, at 22-26 Central Avenue and 92-94 Washington Street.
in 2015, the Zoning Board of Adjustment granted several variances and site plan approval for the Central Avenue lot, which PLANewark appealed in Newark Municipal Council. It withdrew the appeal and agreed not to sue pursuant to an August 2, 2016 settlement that required McCarter Highway Properties, part of Edison, to make certain changes in the lot including: improved, LED lighting; planted buffers with a “green fence” on one side; taller decorative fencing elsewhere; smaller signage and provision of several amenities– an air pump, a battery charger and electric vehicle charging station.
For the Washington Street lot expansion, Edison University Properties had demolished a building on the lot without prior notice to the Landmarks and Historic Preservation Commission, even though the property was within the James Street Commons Historic District. The Commission subsequently approved the expansion conditioned on fencing and landscaping changes which required approval from the Zoning Board of Adjustment. Under an August 11, 2016 settlement, PLANewark agreed not to oppose the application and not to sue in return for Edison’s agreement to improve lighting, landscape buffering, provide an air pump and electric vehicle charging station, consider adding bicycle stalls, designate a community liaison person and other provisos.
Bruen Parking Lot
Represented by NJ Appleseed, PLANewark in 2014 opposed a (d) variance for yet another commercial parking lot in the Ironbound section of Newark, on Bruen Street. We presented testimony before the Zoning Board from a planner, architect, transportation expert, public health expert, community activist concerned about pedestrian safety, and public finance expert. Our case overwhelmed the applicant’s presentation and the variance was denied.
Proposed Findings of Fact and Conclusions of Law
NJ Appleseed’s home is in Newark, NJ. Drawing by Myles Zhang.