The final two days of July saw one Supreme Court opinion and two published opinions by the Appellate Division. Here are summaries:

New Jersey Division of Child Protection & Permanency v. A.P., 258 N.J. 266 (2024). As described here, the Supreme Court granted review in this case to decide whether DCP&P may use expunged criminal records in a child abuse and neglect proceeding that involved the same incident as the criminal matter. In an opinion by Justice Patterson for a unanimous Court, the Court noted that there are exceptions to the general rule that expunged records cannot be used. One of those exceptions, N.J.S.A. 2C:52-19, which states that “[i]nspection of [expunged] files and records, or release of the information contained therein, . . . may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts,” was satisfied here, as DCP&P met both the “good cause” and “compelling need based on specific facts” tests. The Court employed de novo review in seeking to ascertain the Legislature’s intent in adopting that statutory exception. The Court’s ruling affirmed decisions of the Family Part and the Appellate Division and remanded for further proceedings, but carefully declined to “rule on the admissibility of any of the expunged records at trial; that determination is for the trial court on remand.”

New Jersey Realtors v. Township of Berkeley, ___ N.J. Super. ___ (App. Div. 2024). In this case, the defendant Township amended an ordinance that restricted ownership of properties within certain senior housing communities to persons over 55 years of age. Plaintiff challenged that provision (as distinguished from ordinances that restrict occupancy to persons above a given age) as violative of the federal Fair Housing Act (“FHA”), the New Jersey Law Against Discrimination (“LAD”), and on other grounds. The Law Division granted summary judgment in favor of plaintiff and invalidated the ordinance. In an opinion by Judge Gooden Brown today, the Appellate Division affirmed. The panel not only agreed that the ordinance violated the FHA and LAD, but went on to rule that “the Ordinance unreasonably infringes upon the well-established and constitutionally protected right to own and sell property and the restriction unreasonably and irrationally exceeds the public need.” Finally, the Appellate Division “invalidate[d] the Ordinance on the ground that it is arbitrary and unreasonable. We do not believe the Legislature has imbued municipalities with the power to restrict ownership at senior housing communities as contemplated in the Ordinance ….”

In the Matter of Kenneth Nicosia Flood Hazard General Permit by Certification 5 No. 1519-23-002.1 FHC 230001, ___ N.J. Super. ___ (App. Div. 2024). As shown by the caption of this case, and its unusual length, this was an environmental appeal. The Department of Environmental Protection (“DEP”) issued a flood hazard area general permit-by-certification 5 (“GPC 5”) to a developer who sought to replace a single-family residence on the site, located in Mantoloking within a block of the Atlantic Ocean, with a new house. Abutting neighbors objected to the issuance of that permit and sought its rescission. DEP accepted comments from the neighbors and others in Mantoloking but declined to rescind the permit. The neighbors appealed to the Appellate Division, which affirmed the DEP in an opinion by Judge Sabatino. The neighbors contended that “the applicable DEP regulations should be construed to require a GPC 5 applicant to show that an existing structure is not in ‘usable condition’ due to ‘decay’ or ‘damage.'” The panel disagreed and affirmed the DEP. Judge Sabatino analyzed the issues in detail and said that “although the pertinent regulations are poorly worded and punctuated, the DEP has reasonably construed them to not require an applicant who, as here, seeks to replace a lawfully existing structure to demonstrate the structure is decayed, damaged, or otherwise not in usable condition.”