Real Property & Environmental Law Alert : New Jersey, New York, Pennsylvania & Delaware Lawyers & Attorneys for Real Estate Development & Environmental Law

Attendance was up and the mood was upbeat at the International Council of Shopping Centers (ICSC) PA/NJ/DE Idea Exchange on September 15-16 at the Pennsylvania Convention Center in Philadelphia. For the 7th consecutive year, Gibbons P.C. exhibited at the show. Five Gibbons lawyers, from the firm’s Philadelphia and Newark offices, attended.

Unlike the last two years, when attendance was lower and the mood was palpably negative, this year's show was better attended and there was a noticeable change in attitude as more deals and more opportunities seemed to be on the horizon. Attendance remained solid well into the afternoon. Howard D. Geneslaw, a Director in the Real Property & Environmental Department at Gibbons, said, “The atmosphere is much different this year, much more positive than it has been for several years, and many of those attending have more appointments this year and are making more progress on deals. This a positive sign in view of the continuing uncertainty we see in economic reports.”

The Philadelphia show is a precursor to the New York gathering, scheduled for December 6-7, 2010, and the positive mood bodes well for a successful New York show with better attendance and a more positive outlook. Gibbons will be exhibiting at the New York show in America's Hall II - come by and say hello.

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Owners of land subject to the 2004 Highlands Water Protection and Planning Act (Highlands Act) who preserve their land under the Green Acres Program or the State Farmland Preservation Program will benefit from special appraisal rules for five more years, thanks to legislation signed into law by Governor Christie on September 9. Under the “dual appraisal” provision, which expired last year but has now been extended to 2014, landowners receive two appraisals -- one based on current property value, and one based on pre-Highlands Act zoning and other restrictions -- and the higher appraisal is used as the basis for negotiation with the State on the appropriate payment.

According to a report released in August by the Highlands Council, nearly 300,000 acres of open space and farmland in the Highlands Region, or one-third of its total area, are already preserved. Preservation will also receive a major boost beginning next year when additional funds are generated from a $400 million land preservation bond issue approved by voters last year.

Both the extension of the “dual appraisal” provision and the availability of new preservation funding should enhance Highlands land preservation efforts in the coming years. Landowners who are concerned about the effect of the Highlands Act on the value of their property may want to investigate the potential benefits of various land preservation options.

Paul M. Hauge is an Associate in the Gibbons Real Property & Environmental Department.

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Russell Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, was featured as an Industry Leader in the August 25, 2010, issue of Real Estate Weekly.

Real Estate Weekly noted, “In one of the most challenging real estate environments in recent history, Bershad has expanded what is one of New Jersey's busiest regional practices.”

Real Estate Weekly, published weekly since 1954, reaches over 30,000 readers in New York, New Jersey, Connecticut, Long Island and Westchester. The publication is the key source for late-breaking news and recent developments affecting the commercial, residential and industrial markets. In addition, it publishes monthly supplements which focus on specific aspects of the real estate industry.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.

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With the advent of New Jersey’s LSRP program comes an added financial benefit for environmental remediation matters requiring a remediation funding source (“RFS”). There is an opportunity to save on the statutory annual 1% surcharge on an RFS, especially useful for those sites subject to the requirements of the Industrial Site Recovery Act.

Among the new remediation requirements in the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C (“ARRCS”) is an annual remediation cost review to be submitted to the NJDEP on a Remediation Cost Review Form. N.J.A.C. 7:26C-5.10. For new sites subject to the LSRP program and for older sites that have opted-in to the LSRP program, the form must be certified by the site’s LSRP.

Based on the revised cost of the remediation developed in conjunction with the annual review (though this can also be done at other times as well), the person required to establish it, may reduce the amount of the RFS upon submission of the remediation cost review form to the NJDEP. N.J.A.C. 7:26C-5.11. So long as its certified by the LSRP, there is no need to obtain NJDEP approval of an RFS reduction. Of course, such a reduction is ultimately subject to the NJDEP’s broad rights of review of all documents and submissions. N.J.S.A. 58:10C-21. Thus, if the RFS is reduced by the LSRP, then, the 1% RFS surcharge required by 7:26C-5.9 will accordingly be reduced. In addition, to the extent the cost of the RFS itself is driven by the amount (such as with letters of credit), there will be further cost savings. For those sites subject to an ISRA Remediation Agreement with high initial remediation cost estimates that have not been reviewed recently, there may be an opportunity for a substantial cost savings.

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A Michigan court dismissed a juror who during the trial posted on Facebook, "gonna be fun to tell defendant they’re guilty." A New Jersey Appellate Court holds it is alright to google jurors’ names during jury selection. Carino v. Muenzen, App. Div. August 30, 2010. The upshot is that the internet is moving into the jury box.

In Carino, the plaintiff’s attorney used the court’s wi-fi to access the internet on his laptop. The court, ever hip, asked if he was googling the potential jurors. The trial court told him to put away the computer because he gave no notice he intended to google the jurors. The Appellate Court held it was an error, albeit a harmless one, to block the attorney from googling in the courtroom. The court noted that the trial court administrator had issued a press release announcing the wi-fi in the "Morris County Courthouse to maximize productivity for attorneys and other court users."

In an Arkansas court, a juror verdict was ultimately tossed out when it was discovered a juror tweeted during the trial that he hadn’t done much other than give away "TWELVE MILLION DOLLARS of somebody else’s money!"

Clearly, jurors, attorneys and courts are having to deal with social media and internet access in the courtroom. Courts will have to be more specific in their instructions to jurors on what "not discussing the case" means. While the Appellate Court upheld the right of the googling attorney to do so in court, it is not the best tactic. Most courts publish the array of jurors who may be available for trials in advance. See J. Klock, New Jersey Trial Practice, § 7.29 Volume 2E (West 2010) (can request general panel of jurors ten days before trial). It would be best to check on the jurors outside the court, as it is important to also look at the jurors and read their reactions to the voir dire.

John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

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A bill that would add the Port District of the Port Authority of New York and New Jersey to the definition of “wind energy zones” in the newly adopted Offshore Wind Economic Development Act, was reported out of the Senate Budge and Appropriations Committee on September 13, 2010. The amendment would allow tax credits for qualified wind energy facilities in the Port District.

The Port District encompasses an area within a radius of about 25 miles of the Statue of Liberty. According to the committee statement, the bill would not affect the total amount of tax credits available for wind energy facilities. Of course, the addition of another wind energy zone could reduce the amount of tax credits available for other wind energy facilities.

There are currently three offshore wind projects underway off the coast of New Jersey.

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With energy costs high and the focus on combating global warming, there is an impetus toward encouraging the development of Green Buildings. Buildings account for 39% of the total energy usage in the U.S., two thirds of the electricity consumption and 1/8 of the water usage. Building codes, setting minimum standards for construction, now include standards for energy efficiency. Green Codes are creeping in.

New Jersey’s Energy Subcode requires that a building permit applicant show compliance as part of the application. This code applies to low-rise residential and commercial buildings Under the Energy Code Compliance and Residential Prescriptive Packages, see N.J.A.C. 5:23-2.15(f)1.vi and N.J.A.C. 5:23-3.18. Compliance must be with the Energy Subcode and the 2006 International Energy Conservation Code (IECC) plus 20%. These are energy efficient standards for cooling and heating.

New York State has its Energy Conservation Construction Code of 2007 which is based on the 2004 IECC standards. This code becomes effective in December 2010. Pennsylvania has adopted Alternative Residential Energy Provisions 2009 based on 2009 IECC standards.

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If you are a NJ-based entity, do you have a power plant in the works? Are you thinking about a Combined Heat and Power (CHP) plant? If so, the New Jersey Economic Development Authority (NJEDA) has a grant for you if you act with alacrity. October 4, 2010, at 5:00 pm is the deadline for submitting an online solicitation for the competitive CHP grants. Grants are available for $450 per kW up to a maximum of $5 million per plant. All forms are available online.

It should be noted that grants cannot exceed 50% of the project. Upgrade projects are available for funding. However, the projects cannot come online before January 1, 2011, but must begin before September 30, 2011. And of course, the projects must be located in New Jersey.

The application fee is $500 with a closing fee of 1% of the approved grant. There are other fees and there are numerous eligibility requirements which should be checked carefully.

John H. Klock is a Director in the Gibbons Real Property & Environmental Department.

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On September 8, 2010, New York City Mayor Michael Bloomberg signed a new law  that will require owners of multiple dwellings to provide the New York City Department of Housing Preservation & Development (HPD) with their names, business and residential addresses and telephone numbers on an annual basis. The law also requires all shareholders who hold at least 25% of a corporation, partnership or limited liability company to comply with the disclosure requirements as well. Finally, the law mandates that a U.S. postal service mail box can not be used as a valid address.

Mayor Bloomberg praised the law noting that it will be easier for HPD and tenants to contact landlords in instances of housing and building violations. Not surprisingly, however, building owners are opposed to the new law arguing that it is unnecessary in light of existing and less onerous registration requirements.

The new law will take effect on January 31, 2011, however, it may take at least six months for HPD to implement the new database, according to the Real Deal.

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On September 2, 2010, Americans for Prosperity staged a rally in front of the Atlantic County Utilities Authority windmills to protest against offshore wind turbines as a waste of taxpayer money. Ironically, according to the ACUA, its five wind turbines save it $600,000 a year in electricity bills.

The protest comes less than one month after Governor Christie signed the Offshore Wind Economic Development Act into law. The Offshore Wind Economic Development Act establishes an offshore wind renewable energy certificate program that will require a percentage of electricity sold in NJ to come from offshore wind energy. New Jersey hopes that the new law will spur economic development and job growth in the state. 

There are currently three offshore wind projects underway off the coast of New Jersey.

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