Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

New Jersey’s Permit Extension Act Extended One Year

Posted in Development/Redevelopment

On Friday, December 26, Governor Christie signed into law a one year extension of New Jersey’s Permit Extension Act (“PEA”). As noted in our recent blog, the PEA previously was set to expire on December 31, 2014.

Initially enacted in 2008 in response to “the crisis in the real estate finance sector of the economy,” the purpose of the PEA was to toll the expiration of various approvals necessary for development through the end of 2012. The PEA was later amended to extend the tolling of the expiration of those approvals through the end of 2014. The further amendment enacted on December 26, designated as P.L.2014, c.84, tolls the expiration of those approvals through December 31, 2015, thereby providing projects with permits set to expire another year in which to move forward.

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New York State Brownfield Developments: Governor Cuomo Vetoes Tax Credit Extension; State Bar Recommends Reforms

Posted in Development/Redevelopment

On December 29, Governor Andrew Cuomo vetoed a bill that would have extended, until March 31, 2017, the deadline for sites in the New York State Brownfield Cleanup Program to finish cleanups in order to qualify for the Program’s tax credits. The current deadline is December 31, 2015.

The veto surprised many observers, since the Governor had earlier indicated that he would sign the bill.

Cuomo’s veto message noted that, while he has an “unwavering commitment to this program and its goals”, the extender did not make reforms to the Program that he considers necessary. He also noted that the bill contains additional bonding authority and appropriations for the State’s Superfund program which would have an “unplanned, direct impact on the current State fiscal plan.”

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No Specific Waiver, No Arbitration: Enforceability of Arbitration Provisions in New Jersey Real Estate Contracts in Doubt Following Dispenziere v. Kushner Cos.

Posted in Development/Redevelopment, Real Estate, Transactional Real Estate & Leasing

Companies doing business in New Jersey and accustomed to settling contract disputes through binding arbitration should carefully review their contracts – and carefully draft all future contracts – to ensure that each arbitration provision contains clear and unambiguous language that the parties are waiving their rights to sue in court. An arbitration clause stating that all disputes will be determined through binding arbitration, but failing to contain this explicit waiver, may not be enforceable in accordance with the recent holding by the Appellate Division in Dispenziere v. Kushner Cos.

The Dispenziere decision stems from a dispute between a real estate developer and purchasers of residential condominium units in a Perth Amboy development known as the Landings at Harborside. At issue was the enforceability of the arbitration clause contained in the purchase agreement, which in relevant part provided:

“[a]ny disputes arising in connection with this Agreement . . . shall be heard and determined by arbitration before a single arbitrator . . . [t]he decision of the arbitrator shall be final and binding. Costs of arbitration shall be borne equally between the Seller and the Purchaser. This clause shall survive closing of title.”

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Legislature Approves One-Year Extension of New Jersey’s Permit Extension Act

Posted in Development/Redevelopment

Our recent blog noted that New Jersey’s Permit Extension Act (“PEA”) was to sunset at the end of this year unless a further extension was enacted into law. On Thursday, December 18, both the Assembly and the Senate voted to approve a one year extension of the PEA. The legislation now awaits action by the Governor.

New Jersey’s Permit Extension Act (“PEA”) was initially enacted in 2008 in response to “the crisis in the real estate finance sector of the economy.” The purpose of the PEA was to toll through the end of 2012, expiration of various approvals necessary for development. The PEA was later amended in 2012, due to the then “current national recession,” to extend the tolling of the expiration of those approvals until December 31, 2014. Unless the Legislature approves a further extension, the PEA will sunset at the end of this year, posing a problem for projects which have not yet started construction, because their approvals may expire.

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Starting January 1, 2015 New York Households Will Be Required to Recycle E-Waste

Posted in Environmental & Green Issues

Beginning January 1, 2015, any New Yorker who disposes of an old computer, television, or even an iPod, i.e., “electronic waste” (“e-waste”), by placing that item in the garbage or leaving it on the curb for collection will be in violation of the New York State Electronic Recycling and Reuse Act, N.Y. Envtl. Conserv. Law § 27-2601, et seq.. Individual consumers will instead be required to recycle such e-waste by dropping it off at a registered e-waste collector or by returning it to an e-waste manufacturer, or risk being fined $100 each time they fail to do so.

Although individual consumers in the State have never before had a legal obligation to recycle e-waste, the application of New York’s e-waste recycling mandate to individual households has been a long time in the making: The Act itself was signed into law on May 28, 2010, and the provisions within the Act requiring all businesses to comply with the Act’s e-waste recycling requirements have been in effect since January 1, 2012. As such, it appears that the broader application of the Act to individual households will have limited impact on the greater New York business community. Either way, one thing is certain: any New Yorker who has resolved to be less wasteful in the New Year will have one more reason to honor that resolution. Residents of New York City can find a drop-off location with this interactive map. For residents outside of NYC, this interactive map will locate drop off locations. In addition, a list of sites in New York state, arranged by county is available here.

John E. Icklan is an Associate in the Gibbons Real Property & Environmental Department. Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, co-authored this post.

Highlands Council Schedules Stakeholder Outreach Workshops and Will Accept Written Comments

Posted in Development/Redevelopment

The New Jersey Highlands Council has scheduled three Stakeholder Outreach Workshops to solicit public input on the Highlands Regional Master Plan (RMP) as part of its RMP Monitoring Program.  According to public notices issued by the Highlands Council, the workshops are intended to provide members of the public with an opportunity to learn more about the monitoring program and to provide input.  The notices also state, “[t]he Monitoring Program evaluates progress toward achieving the goals of the Highlands Regional Master Plan,” and “[t]he program requires identification of indicators and milestones to measure the impact of the Regional Master Plan on water resources, agriculture, housing, transportation, and economic development within the Highlands Region.” 

Pre-registration is not required, but space is limited and those attending will be asked to sign in.  Stakeholder Outreach Workshops are scheduled as follows: 

December 15, 2014 from 7:00 p.m. to 9:00 p.m.
County College of Morris, Student Community Center, Davidson Room
214 Center Grove Road, Randolph, NJ

January 12, 2015 from 7:00 p.m. to 9:00 p.m.
Sussex County Technical School, Cafeteria
105 N. Church Road, Sparta, NJ

January 14, 2015 from 7:00 p.m. to 9:00 p.m.
Oldwick Fire Company Social Hall (across from Melick’s Town Farm)
163 Oldwick Road (Routes 523/517), Oldwick, NJ

Any schedule change due to weather conditions will be announced on the Council’s website.

The Highlands Council is also accepting comments via its website (click “Submit Comments” in the RMP Monitoring section of the homepage), or by hard copy to the Highlands Council office via regular mail, hand delivery or fax.  Those submitting written comments are asked to identify a specific content area or aspect of the RMP and include the commenter’s name and affiliation.  Comments will be accepted through February 27, 2015, and should be directed to:

New Jersey Highlands Council
Attn: 2014 RMP Monitoring Program
100 North Road (Route 513)
Chester, NJ 07930-2322
Fax: (908) 879-4205

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.

Tolling of Approvals Under New Jersey’s Permit Extension Act: Will The End Of The Year Be The End Of The Line? Approved Projects Could Be At Risk

Posted in Development/Redevelopment

New Jersey’s Permit Extension Act (“PEA”) was initially enacted in 2008 — in response to “the crisis in the real estate finance sector of the economy” — for the purpose of tolling, through the end of 2012, expiration of various approvals necessary for development. It was later extended, in 2012, due to the then “current national recession,” to extend the tolling of the expiration of those approvals until December 31, 2014. Unless the Legislature approves a further extension, the PEA will sunset at the end of this year, and that could pose a problem for projects which have not yet started construction, because their approvals may expire.

The PEA provides for tolling of any “approval,” as defined in the statute, which is or was in existence during the extension period (January 1, 2007 through December 31, 2014). Although there are important exceptions, most subdivision, site plan and variance approvals granted pursuant to the Municipal Land Use Law are encompassed within covered “approvals,” as are many approvals granted by the New Jersey Department of Environmental Protection (NJDEP), New Jersey Meadowlands Commission (NJMC), Delaware and Raritan Canal Commission, New Jersey Pinelands Commission, and various other agencies.

The PEA further provides that “the running of the period of approval is automatically suspended for the extension period” (i.e., through December 31, 2014), but tolling “shall not extend the government approval for more than six months beyond the conclusion of the extension period” (i.e., through June 30, 2015). The PEA also shall not “shorten the duration that any approval would have had in the absence of [the PEA].” Thus, any included “approval” which was granted or which was set to expire after January 1, 2007, was extended by the PEA through the end of this year.
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Untapped Potential in New Jersey’s Nascent Craft Beer Industry

Posted in Liquor Licensing

Two years ago, New Jersey lawmakers revised an archaic law that had been a major obstacle to anyone who wanted to launch a start-up brewery in the state. New Jersey’s old law severely restricted craft brewers’ ability to actually sell their beer to visitors of the brewery, thus undermining the economics of on-site bars or tap rooms, which most small operations in other states rely on as an important revenue source, especially in the early stages. The old law even limited how many free samples a brewer could hand out, which proved particularly troublesome for entrepreneurs trying to gain brand recognition and market share, and appeal to consumers’ varied tastes. The new law was intended to put brewpubs, microbreweries and so-called “nanobreweries” on an equal footing with competitors in neighboring states. While this legislation was a welcome step for the craft beer industry, more can be done.

Under the new law, craft brewers—anyone brewing not more than 300,000 barrels per year—can now sell full pints at the brewery and customers can buy a keg’s worth of beer (15.5 gallons) for consumption off-premise (the old law restricted sales to two six-pack’s worth). The new law also lets brewpubs (restaurants with a small in-house brewery) produce up to 10,000 barrels of beer—instead of being limited to just 3,000—and raised the cap of how many brewpub licenses a business can hold—from two to ten. Further, brewpubs can now sell their beer to wholesalers for distribution to licensed retail stores and restaurants within the state.

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Turnpike Authority is Not a “Local Government Unit”: Tax Court

Posted in Environmental & Green Issues

All politics, the saying goes, is local. Not so with government, according to a recent decision from New Jersey’s Tax Court. In an opinion that teaches more about legislative drafting than it does about tax policy, the court in New Jersey Turnpike Authority v. Township of Monroe parsed a complex definition of “local government unit” in the Garden State Preservation Trust Act (GSPTA). It held that the New Jersey Turnpike Authority did not come within that definition, and thus could not claim that status to obtain an exemption from roll-back taxes on a parcel it purchased in 2009.

To mitigate the impacts of a construction project on wetlands, the Authority purchased some 400 acres of vacant land in Monroe Township for the purpose of donating it to the Department of Environmental Protection. The land was assessed as farmland for property tax purposes, but the Authority did not use it for agricultural or other permissible purposes. Monroe’s tax assessor then sought to impose three years of “roll-back” taxes on the land, as authorized both by the state Constitution and by statute, because the land had not been used for any purpose that entitled it to assessment as farmland.

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District of New Jersey Decision Highlights Procedural and Evidentiary Complexities Unique to the State’s Environmental Litigants

Posted in Environmental & Green Issues

In Leese v. Lockheed Martin Corp., one of the New Jersey’s foremost environmental jurists, the Honorable Jerome B. Simandle, Chief Judge of the United States District Court for the District of New Jersey, authored a comprehensive opinion explaining why several plaintiffs who alleged harm caused by contamination on their properties were without recourse under a number of state and federal environmental laws. In so doing, the Chief Judge highlighted the procedural and evidentiary complexities unique to environmental litigants.

In Leese, plaintiffs claimed that the volatile organic compounds (“VOCs”) trichloroethylene (“TCE”) and perchloroethylene (“PCE”), i.e., hazardous chemicals, migrated onto their residential properties from Defendant Lockheed Martin’s adjacent lot, in violation of the Resource Conservation & Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation & Liability Act (“CERCLA”), the New Jersey Spill Compensation & Control Act (“Spill Act”), and the New Jersey Water Pollution Control Act (“WPCA”). Importantly, plaintiffs’ Spill Act and WPCA claims were brought under the New Jersey Environmental Rights Act (“ERA”), which provides the basis for private actors to bring these – as well as a number of other – environmental enforcement claims. After considering the parties’ respective summary judgment motions, Judge Simandle dismissed each of these claims in turn.

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