How to Shortcut Due Diligence on Land Development Using Government Records Requests
Updated: Oct 16, 2018
Before paying professionals top dollar to examine the developability of your vacant land prospect, you need to submit government records requests. These records can provide invaluable insight into what lies ahead in your quest to develop a piece of property.
In New Jersey, public access to government records is governed by the Open Public Records Act, commonly known as “OPRA”. To the dismay of many government officials, the scope of records available to the public is very expansive. There are, however, various exceptions for very sensitive information such as personnel records, academic research and criminal investigations – to name just a few.
For land approvals, OPRA works best by taking advantage of the work and money spent by others. And this work and money spent can work to your advantage. Many developers use OPM or “other people’s money”. Taking advantage of OPRA can be a smart form of using OPM.
Sometimes the land you have targeted was the subject of a prior zoning, Pinelands or Department of Environmental Protection (DEP) application. Other times surrounding properties were the subject of these same applications.
Accordingly, an OPRA request for your target property and all property within a certain distance needs to be one of the first boxes you check.
By way of example, not too long along I targeted a five-acre parcel surrounded by freshwater wetlands because the price was dirt cheap and the property was beautiful and located in a desirable community. Of course, the price was right because of the looming wetland issues.
Outside of the boundaries of the N.J. Pinelands, the New Jersey DEP has jurisdiction over freshwater wetlands. Although the rules are complex, generally there must be either 50 feet or 150 feet between construction and a wetland. Fifty feet is required when the wetland has “intermediate resource value” and 150 feet is required for when the wetland has “exceptional resource value”.
Exceptional wetlands are mostly associated with threatened or endangered species and trout waters, while intermediate wetlands are those that are neither exceptional, nor ordinary. Wetlands of “ordinary resource value” are either small and isolated or manmade, like a drainage ditch.
In evaluating the target property, a house would not fit if the wetlands were of exceptional value (150 feet buffer), but it would if the buffer requirement was only 50 feet (intermediate value). A proposal by a wetlands scientist in the amount of $900 would give me about 80 percent certainty. After a Natural Heritage Database (an inventory of biological diversity) search and a site inspection, the answer would still not be conclusive.
Then I noticed the house next door to the target property and it looked kind of new. I wondered if the owner had done it “the right way” by filing an application with the DEP – to get an actual interpretation of the wetlands.
Ten days after filing an OPRA request with the NJDEP, I learned that the Department of Environmental Protection had classified the neighbor’s wetlands as “intermediate”. With near certainty, this meant that the buffer would be 50 feet, instead of 150 feet. And that a house would fit comfortably on the parcel.
Since the records were sent electronically, the cost was zero. Compared to a $800 professional analysis, this is something that cannot be overlooked as a first step in evaluating a parcel of land. In this case, the neighbor’s money spent on his application gave me the comfort of moving forward with spending my money.