Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Tag Archives: New Jersey

New Jersey Supreme Court Appoints Trial Court the Venue for Affordable Housing Disputes

Posted in Development/Redevelopment
Last week, the New Jersey Supreme Court issued a green light to developers and other interested parties to eventually pursue builders’ remedy actions in New Jersey Superior Court. The decision is the latest in a battle over affordable housing that has been in and out of the courts since the Mount Laurel decision in 1975. Most recently, in September 2013, the Supreme Court overturned the Council on Affordable Housing’s (“COAH”) latest attempt at adopting affordable housing regulations and ordered COAH to adopt new regulations within five months. That period was eventually extended to November 2014. COAH, however, did not adopt new regulations. Its inaction prompted a motion in aid of litigants’ rights, whereby parties to the prior action sought to break the bureaucratic logjam. Last week’s decision, designating trial courts as the venue for affordable housing disputes, is the New Jersey Supreme Court’s solution to the logjam.… Continue Reading

Howard Geneslaw and Jason Tuvel to Speak at the 2015 Land Use Update

Posted in Development/Redevelopment
Howard D. Geneslaw, a Director in the firm’s Real Property & Environmental Department and Secretary of the Land Use Section of the New Jersey State Bar Association, will be participating, as both a moderator and speaker, at the upcoming 2015 Land Use Update on Wednesday February 25, 2015 in West Orange, New Jersey. Jason R. Tuvel, also a Director in the Gibbons Real Property & Environmental Department, will be a speaking when the same program is presented next month at the Legal Center in New Brunswick, New Jersey on March 18, 2015.… Continue Reading

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.… Continue Reading

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.”… Continue Reading

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.… Continue Reading

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.… Continue Reading

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.… Continue Reading

New Jersey Supreme Court Adopts O’Brien Factors For Determining When Real Estate Transactions Constitute an Equitable Mortgage

Posted in Transactional Real Estate & Leasing
Founded on the principle that equity looks to substance over form, courts will find an equitable mortgage to exist when a deed or contract, while lacking the characteristics of a typical mortgage, is used to pledge an interest in real property as security for a debt with the intention of acting as a mortgage. On September 9, 2014 in Zaman v. Felton, the New Jersey Supreme Court decided that when determining whether a particular transaction gives rise to an equitable mortgage, a trial court must utilize the eight factor test set forth by the Bankruptcy Court for the District of New Jersey in O’Brien v. Cleveland. … Continue Reading

Potential Change Coming to NJ’s Economic Opportunity Act

Posted in Development/Redevelopment
The “New Jersey Economic Opportunity Act of 2013” overhauled New Jersey’s economic development programs. The Act retooled and substantially enhanced the State’s job creation and retention program known as the Grow NJ Assistance Program (Grow NJ), as well as the Economic Redevelopment Growth (ERG) Grant Program, the incentive program that provides gap financing to developers. As we wrote in Commerce magazine, Grow NJ and ERG improve New Jersey’s economic competitiveness with our neighboring states and may be game-changers for businesses and developers. After seeing the programs in action for under a year, the Legislature has revisited the programs to make technical changes and to further enhance NJ’s economic development arsenal.… Continue Reading

New Jersey Supreme Court Finds Neither Plan Approval Nor Complete Remediation are Prerequisites to a Spill Act Contribution Action

Posted in Environmental & Green Issues
In Magic Petroleum Corporation v. Exxon Mobil Corporation, the New Jersey Supreme Court held that a party funding remediation of a contaminated site may bring a contribution claim against other potentially responsible parties (“PRPs”) before completing remediation and prior to receiving the New Jersey Department of Environmental Protection’s (“DEP’s”) written approval of the remediation plan. In so doing, the Court has provided certainty, to a degree, to the environmental remediation process in New Jersey.… Continue Reading

New Jersey Department of Environmental Protection Proposes New Rules Aimed at Streamlining Coastal Permitting Process

Posted in Environmental & Green Issues
On June 10, 2014, the New Jersey Department of Environmental Protection (“DEP”) introduced a series of proposed technical revisions to land use rules -- via a 1,055 page proposal -- designed to encourage redevelopment in coastal areas decimated by Hurricane Sandy. DEP Commissioner Bob Martin -- who also served on Governor Christie’s Red Tape Review Commission, which was launched in 2011 to streamline regulatory processes across state government -- explained that “[t]hese revisions will add clarity to our regulatory processes and provide better predictability in the regulatory process.”… Continue Reading

The EPA Seeks to Regulate Carbon Emissions from Existing Power Plants

Posted in Environmental & Green Issues
On June 2, 2014, the Environmental Protection Agency (“EPA”) introduced new rules – via a 645 page proposal – designed to reduce the emission of carbon and other greenhouse gases (“GHGs”) from existing power plants. Although this is the first time the EPA has proposed such standards, the EPA claims that it is empowered to do so under the ambiguous provisions set forth in Section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. § 7411(d).… Continue Reading

Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought.… Continue Reading

Appraisal Provisions in Leases Mean More Than You Think in New Jersey

Posted in Transactional Real Estate & Leasing
It is a common belief that appraisal provisions in leases governing future renewal rents don't really mean anything. The logic behind this conclusion is that regardless of what the lease says, if the tenant doesn't receive a new rent number that justifies staying, it will leave. There is a lot of truth to this. However, a recent New Jersey Appellate Division decision, Cablevision of Oakland, LLC vs CK Bergen Holdings, LLC, App Div 27-2-3149 demonstrates neither a landlord nor a tenant can rely on conventional wisdom as a reason to forego doing the right job in the documents. If you are concerned about the methodology to be used in the appraisal process you had better make that clear in the lease. And if you want the Court to have the power to review an appraisal to determine whether there was compliance with the methodology mandated by the lease, you better make that clear in the lease, too.… Continue Reading

Jason Tuvel Will Speak at the 2014 Land Use Update

Posted in Development/Redevelopment
Jason R. Tuvel, a Director in the Gibbons Real Property & Environmental Department, will be a speaker at the 2014 Land Use Update on Wednesday, March 19, 2014, in West Orange, New Jersey. The all-day program, sponsored jointly by NJICLE and the NJSBA Land Use Section, will cover the past year’s judicial decisions - both reported and unreported - as well as regulatory, legislative and ethical issues that impact this constantly evolving area of practice. The program will provide essential information and strategies for handling the latest and most challenging land use issues.… Continue Reading

Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

Posted in Environmental & Green Issues
The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014. … Continue Reading

Remedial Investigation Deadline Extended to May 7, 2016 if Conditions Met

Posted in Environmental & Green Issues
A number of Responsible Parties are breathing a sigh of relief. On January 21, 2014, Governor Christie signed legislation authorizing a two year extension for Responsible Parties to complete their remedial investigations before risking being placed under direct oversight of the New Jersey Department of Environmental Protection (NJDEP). The deadline has been extended from May 14, 2014, to May 7, 2016, under certain circumstances. Pursuant to the Site Remediation Reform Act (SRRA), the deadline applies to all site investigations or preliminary assessments that are being conducted to address discharges or contaminated areas of concern that have been or should have been identified on or before May 7, 1999.… Continue Reading

Gibbons Directors Howard Geneslaw and Lawrence Lustberg to Speak at 2014 New Jersey Planning Conference

Posted in Planning
Howard D. Geneslaw, a Director in the Gibbons Real Estate Development practice group, and Lawrence S. Lustberg, a Director in the Gibbons Criminal Defense Department, as well as the Director of the firm's John J. Gibbons Fellowship in Public Interest & Constitutional Law, will both speak at the "2014 New Jersey Planning Conference" presented by the New Jersey Chapter of the American Planning Association on January 23-24.… Continue Reading

Funding Available for Site Remediation in New Jersey

Posted in Development/Redevelopment
On December 18, 2013, Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, moderated a panel, "There May Be Money for Your Client for Site Remediation," sponsored by the New Jersey Bar Association's Environmental Law Section. The program focused on the Hazardous Discharge Site Remediation Fund ("HDSRF"). Michael Deely, Supervisor for NJDEP's HDSRF program, cheered the audience by reporting that the long depleted fund once again has money for site remediation grants and loans.… Continue Reading

Gibbons Director Presents at New York County Lawyers’ Association Program

Posted in Transactional Real Estate & Leasing
Ivette P. Alvarado, a Director in the Gibbons Real Property & Environmental Department, recently spoke at the New York County Lawyer's Association "New Jersey Bridge the Gap" program. A returning speaker, Ms. Alvarado's presentation on December 6, 2013, "An Introduction to Real Estate Closing Practices in New Jersey," focused on the intricacies of residential and commercial real estate transactions in New Jersey.… Continue Reading

Legislature Contemplates Extension of Moratorium on Statewide Non-Residential Development Fee

Posted in Development/Redevelopment
At the end of last week, the New Jersey State Senate ("Senate") introduced Bill S3116 that proposes to continue the moratorium on the statewide non-residential development fee (the "Fee") that expired on July 1, 2013. Since July 1, 2013, developers and land use attorneys have been in a state of flux with regard to whether the fee applies to development projects. If passed, this legislation would extend the moratorium to December 31, 2014.… Continue Reading