How Protected Wetlands Could Kill Your Real Estate Deal


Share This Post

wetlandsIt doesn’t matter if your real estate transaction involves a purchase or a sale. In fact, it’s also irrelevant if you’re buying or selling commercial real estate or residential property. It’s a fact.  Protected wetlands could kill your real estate deal. And, that’s just the beginning.

All things considered, you may not even truly comprehend the significance of protected wetlands. If you’re buying or selling in a city like Elizabeth or Linden, it might seem unimportant to you. That said, you could be in for a surprise you weren’t counting on it at all.

NJSA 13:9B-1 provides the title for the “Freshwater Wetlands Protection Act.” However, this means little to you if you’re uncertain as to what constitutes freshwater wetlands. For that information, you’ll need the basic definition found in NJSA 13:9B-3:

…area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation…

If you’re buying property in an area near the beach, you should also know that protections are in place when it comes to coastal wetlands. In the case of freshwater or coastal wetlands, development becomes an issue.

In the meantime, the state offers help when it comes to research. The New Jersey Department of Environmental Protection (DEP) provides tools that allow you to check a mapping system for regulated sites.

The bottom line is that you need to research property before you buy or build on it. The DEP’s Land Use Regulations focus on wetlands functions and values, as well as configuration and watershed affiliation.  Essentially, it comes down to protecting the ecosystem.

Protected Wetlands and Property Development

Unfortunately, your property development plans could absolutely change as a result of protected wetlands. However, that doesn’t mean the real estate deal needs to die entirely.

Last year, the New Jersey Appellate Division decided a matter and shared it in the unpublished opinion of Albert Samuels Trust v. Settimo & The Three Musketeers, LLC.  The disputes in the case revolved around the payment of a development bonus. However, the refusal to pay the bonus had everything to do with the finding of protected wetlands.

According to the case history, the plaintiffs entered into a contract to sell commercial property in Hanover for close to $3.5M. During the sales process, the defendants did their due diligence and discovered that approximately forty percent of the property constituted protected wetlands.

It took some time, but the parties saved the deal at a reduced cost of $2.5M. The new contract provided additional language regarding a development bonus. If you want to know more about that particular issue, you should take a look at the case.

What’s the lesson here? Your realtor and an experienced real estate attorney both recognize the significance of protected wetlands to your property development plans. Make sure you investigate this issue to avoid problems.

Contact Us

Real estate transactions require the assistance of an experienced real estate attorney. Contact the Law Offices of Lawrence M. Centanni to see how we can help. We look forward to meeting with you!

More To Explore