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

Douglas Janacek and Russell Bershad, Co-Chairs of Gibbons Real Property & Environmental Department were each recognized as leading real estate practitioners in recent industry publications.

Doug was one of 12 lawyers to be included in a feature story on the leading real estate attorneys in the state in New Jersey & Company's November/December issue.

Douglas Janacek’s career goal has been 'to be all inclusive,' and since joining Gibbons in 1986, he’s done just that. Janacek has worked in all aspects of residential as well as commercial, office, and industrial development real estate law, including zoning, planning, and permitting, as well as represented green building and sustainable design residential projects ...

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Under a newly enacted City of Philadelphia Ordinance, some tenants in properties developed with financial assistance by the City of Philadelphia may now be required to comply with a minimum wage requirement that is 150% of the federal minimum wage. Benefits provided to full-time employees of tenants may also be impacted.

City Ordinance (Bill No. 100756) was signed into law on January 5th by Mayor Michael Nutter, and will become effective on July 1, 2011.

Pursuant to Title 17-1300 of the City Code, certain employers are required to pay employees (as they are defined in Title 17) an hourly wage, excluding benefits, of at least 150% of the federal minimum wage, as well as provide certain minimum health care benefits for full-time employees. One category of employers that must provide the higher minimum wage and the health care benefits are "City financial aid recipients."

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Experienced New Jersey developers and land use attorneys understand the challenges that face an applicant when the proposed use is not expressly permitted in the municipality’s zoning district where the subject property is located. The challenge is only more complicated if the proposed use involves novel or unfamiliar technology such as renewable energy. However, in New Jersey, the government has been proactive in welcoming renewable energy projects through grants and legislation, making New Jersey definitely the place to be if you want to develop property geared towards the creation of a renewable energy facility powered by solar or wind.

The New Jersey Municipal Land Use Law (“MLUL”) has shed a ray of sunshine onthose developers who wish to construct a solar or wind renewable energy facility. Developers of a solar or wind renewable energy facility must be aware of N.J.S.A. 40:55D-66.11. This section of the MLUL expressly holds that a municipality must permit as-of-right the construction of a renewable energy facility when the subject property is located in one of the municipality’s industrial districts. The only conditions being that the property (or properties) be: (1) comprised of 20 or more contiguous acres; and (2) under common ownership. The statute defines “renewable energy facility” as a “facility that engages in the production of electric energy from solar technologies, photovoltaic technologies, or wind energy.”

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As more and more business owners and homeowners in New Jersey take advantage of the incentives available to build and maintain solar energy systems and solar panels, it’s important that such investments be protected from unwanted disputes with neighbors. A little known New Jersey statute may be able to help.

Recent statistics on New Jersey’s Clean Energy Program website indicate that New Jersey is the fastest growing market for solar power in the United States, and has the largest number of solar panel installations, second only to California, where neighborly disputes over trees blocking solar panels, solar panels impairing views, causing glare and other general nuisance claims are becoming more and more common. To avoid the same pitfalls in New Jersey, those installing solar panels should take advantage of New Jersey’s Solar Easements Act (N.J.S.A. 46:3-24, et. seq.), on the books since 1978.

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New Jersey, like most other states, has a three-tier alcohol distribution system: (1) manufacturers and suppliers sell to wholesalers; (2) wholesalers sell to retailers; and (3) retailers sell to consumers. New Jersey’s Alcoholic Beverage Control Laws (“ABC Laws”), which are enforced by the Director of the Division of the Alcoholic Beverage Control (“ABC”), have allowed certain New Jersey farmers and wineries to skip the wholesalers and sell directly to retailers and consumers. Out-of-state wineries and wine aficionados cried foul and challenged the special privileges given to New Jersey producers. On December 17, 2010, the United States Court of Appeals for the Third Circuit issued its opinion in Freeman v. Corzine and sided against the New Jersey ABC.

The primary issue in the case was whether the Dormant Commerce Clause of the Constitution prohibits states from imposing restrictions benefiting in-state economic interests at the expense of out-of-state interests. In short, the Court had to determine whether allowing New Jersey plenary or farm winery licensees to operate outside of the rigid three-tier distribution system gave New Jersey businesses an unfair advantage.

The Court recognized that when “all out-of-state wine, but not all in-state wine [must] pass through an in-state wholesaler and retailer before reaching consumers, the discriminatory character of the system is obvious.” The Court further found that there was no legitimate purpose for this unequal treatment. As a result, the court determined that the privileges that allowed plenary or farm winery licensees to sell directly to retailers or consumers were unconstitutional.

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Recently, this past December, the New Jersey Division of Taxation posted expanded Frequently Asked Questions and responses regarding the Bulk Sales Act, NJSA 54:50-38. Given the breadth of the Act, which was expanded a couple of years ago to cover transactions in which any seller makes a bulk sale, not just sellers who collect and remit sales tax, a review of these new FAQs is advisable.

Our previous post on the Bulk Sales Act outlined some of its operative provisions. Additionally, for a detailed analysis of the Act, see the article in the New Jersey Law Journal authored by Peter Ulrich and Russell Bershad, “Broad View of the Expansion of the Tax Bulk Sales Notification Requirements.”

When in Doubt, File

The expanded FAQs and responses don’t carry the weight of law but they are interesting and in some cases surprising. They reflect the position that the Division will be taking on many bulk sales issues. The message running throughout is clear: when in doubt, file.

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On January 13, 2011, the New Jersey Department of Environmental Protection’s Site Remediation Program will release new and updated forms for use by those conducting site investigations and cleanups. The forms -- which already number in the dozens -- must be used when information is submitted to the Program, and were developed pursuant to the requirements of the Site Remediation Reform Act. Interested parties will be able to see the new and updated forms by visiting a dedicated webpage, scrolling down or clicking on “Current Forms,” and noting the version and date for each form.

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

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