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

One of the changes is the elimination of perpetual term leases or easements for Tideland and Linear projects as well as a switch from a parcel-by-parcel negotiation and appraisal method to a flat square footage-based rate. As a point of perspective, the DEP alone owns 800,000 acres of fish and wildlife habitats and parks often traversed by utility lines. A switch to square footage-based rates both increases the revenue generated from a utility intent on developing on State property while at the same time compels them to use as little of the land as possible.

Leases will also have built-in annual adjustments of at least 2.5% thereby forcing lessees to accommodate for inflation. Another practical shift was to allocate more revenue generated from the leasing system back to the program or agency responsible for managing the leases.

Undoubtedly, the new guidelines will affect developers of offshore wind generation projects particularly in light of the Offshore Wind Economic Development Act, a bill that was recently passed to foster development of this type of green energy.

According to Bob Martin “The State’s process for valuing leases was long overdue for a major overhaul. This is our opportunity to bring this system up to date, to provide more predictability for business and to get the best deals and most fair compensation for the people of New Jersey.”

Sandro G. Ocasio is an Associate in the Gibbons Real Property & Environmental Department.

Others honored at NAWL’s Annual Meeting include: Brooksley Born, who received the Public Service Award; Susan Blount, who accepted the President’s Award on behalf of Prudential Financial Inc. Legal Department; Judge Harold Baer of the United States District Court for the Southern District of New York and Marc Firestone , General Counsel of Kraft Foods who each received the NAWL Lead by Example Award; and Michele Coleman Mayes who received the M. Ashley Dickerson Award for the promotion of diversity in the legal profession. NAWL’s most prestigious award, the Arabella Babb Mansfield Award - named for the first woman admitted to a state bar in the United States - was presented to Jamie Gorelick, one of the longest serving Deputy Attorney’s General of the United States, a former general counsel to the Departments of Defense and Energy, a former president of the Washington D.C. Bar and current Co-Chair of the ABA Commission on Legal Ethics.

Ms. Lottinville's colleague, Luis Diaz, Esq., a Director and Chief Diversity Officer at Gibbons, participated in an afternoon CLE program panel which focused on overcoming unconscious bias. Gibbons is also represented within NAWL by Kristin Sostowski, who is a Director in Gibbons Employment & Labor Law Department. Kristen was sworn in as a new member of NAWL’s Executive Board at the NAWL Annual Meeting. Christine Amalfe, Gibbons Employment & Labor Law Department Chair, is also a member of the Board of the NAWL Foundation.

The traditional way of demonstrating compliance with an applicable energy code is to calculate the “U” (thermal transmittance) value of various building components, such as walls, floors, windows, etc. There are tools that assist a builder to perform these calculations and demonstrate compliance with the applicable energy code.

These tools include:

1. Guidance on performing calculations in the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (ASHRAE) Handbook of Fundamentals,
2. RESCHECK SOFTWARE (these two apply for compliance for NY, NJ and PA),
3. NJ Energy Star Homes, which involves registration in the program and inspection by the utility company, and
4. Prescriptive packages for wooden constructed homes.

The first two tools are acceptable in New York, New Jersey, and Pennsylvania. The last two relate to New Jersey alone.

In general, building codes have focused on energy efficiency alone, because lower energy usage is seen as the key to controlling carbon emissions as well as reducing costs over time. However, the Green building concept also involves other notions such as green roofs, hydroponics, reuse of water, less use of water, sewage treatment and other sustainable practices. Other trends could impact building codes in the future. The International Accounting Standards Board (IASB) has determined that by 2012 a standard for biodiversity impacts should be adopted. Such new regulations would require companies to publish information concerning the companies’ environmental impacts.

This would require inventorying energy usage, fresh water usage, air emissions, waste practices, habitat destruction, thermal discharges not only for the company but for suppliers to the company. As a result green construction is becoming more than simply getting a handle on energy.

LEED, Leadership in Energy and Environmental Design, is not a building code itself, but a certification process based on building standards set by U.S. Green Building Council. The LEED certifications, which range from Platinum (the highest), to Gold, and Silver, are verified by independent third party verification. LEED points are awarded on a 100 point scale and weighted to reflect potential environmental impacts. The initiative seeks to lower operating costs, reduce waste, conserve water and energy, reduce greenhouse gases in order to qualify for credits, tax rebates and other incentives depending on the certification ranking.

There has been litigation over LEED. In Southern Builders, Inc. v. Shaw, No. 19-c_07-11405 (Md. Somerset Co., filed February 7, 2007) a tax credit for a silver LEED certification which the developer claimed was worth $650,000 was at issue. The contractor was alleged to have built a substandard building which did not qualify for the tax credit. The case recently settled. However, it does point to the fact that owners, contractors and others have a lot at stake with such certifications.

Eventually, green codes will be adopted by states and code officials. Although LEED is one of the preeminent building certification systems, it is not officially adopted in the above states. Thus, it behooves the developer to choose a qualified Green Project Manager to insure that all interested parties understand what has to be achieved for the appropriate certification and environmental goals of the project. It is not enough to contract the risk to the contractor or subcontractor. Someone who is qualified should be hired to coordinate all levels of construction to insure that the appropriate tax credit, incentive or certification is achieved.

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

There is an exception for owner-occupied one and two family home additions or alterations, which must have zoning approval before plan review can proceed.

Some of the positive impacts of this amendment to the NJ Uniform Construction Code (some of which are noted by the Department of Community Affairs) are:

Next time a building department refuses to review your plans because you have outstanding approvals on the local, county or State levels, make sure you let them know that they are obligated to do so under the New Jersey Uniform Construction Code.

Jason R. Tuvel is an Associate in the Gibbons Real Property and Environmental Department.

With brownfields property, the greatest difficulty is obtaining funds. Often the purchaser is interested in obtaining the property and having it cleaned up, but not in funding it. This holding restricts who can actually get grants. Grants defray, but do not cover the costs of cleanup. Owners who may have held property for over 27 years must continue to hold it until the application is granted and cannot have the benefit of the sales proceeds until the sale is consummated. It frequently takes years to get a grant approved.

This ruling will undoubtedly limit the number of eligible grantees. Indeed, that seems to be the point. As NJDEP and NJEDA asserted in their successful argument for reversal, “the Appellate Division’s holding would create a financial strain on the State and on the HDSRF [Hazardous Discharge Site Remediation Fund] by expanding eligibility for grants to a broader array of applicants.”

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