Real Property & Environmental Law Alert Blog

Is Your Property Historic? You Might Not Think So, But Always Check!

Is Your Property Historic? You Might Not Think So, But Always Check!

In a state like New Jersey, land in urban or developed areas is often at a premium, and developers will need to be mindful of whether the property has any historical significance. In addition to the standard approvals required from local planning or zoning boards, one approval that is commonly overlooked is that of the local historic preservation office or commission. These entities are authorized under the Municipal Land Use Law, N.J.S.A. 40:55D-107 et seq., and are now common in municipalities large and small throughout New Jersey. Where a formal commission exists, applications for development are to be referred to the historic preservation commission for review whenever applications involve property in historic districts or on historic sites identified by the official map or master plan. In other municipalities, there may be an application and approval process separate from the typical land development board. Some are required as part of completeness obligations for applications for development, where others are a separate process from the typical application for development. One active historic preservation commission has been the City of Newark’s Landmarks and Historic Preservation Commission (the “Commission”). This article provides a brief primer on when Commission approval is required, and what developers...

Legislative Update: NJ Assembly Passes Proposed Legislation Extending Municipal Land Use Deadlines

Legislative Update: NJ Assembly Passes Proposed Legislation Extending Municipal Land Use Deadlines

The New Jersey Assembly on March 25 unanimously passed Assembly Bill No A-3902, which proposes to vest in the Director of Local Government Services the ability to extend the deadlines under the Municipal Land Use Law and other statutes that require certain municipal action before a given deadline during a declared state of emergency or public health emergency. This would effectively suspend all timeframes for determining completeness or requiring a vote by the zoning or planning board on a given application. This legislation now moves to the Senate for consideration, and we will continue to monitor various legislative and regulatory updates.

New Jersey Supreme Court Orders State and Property Tax Appeal Deadline Extensions

New Jersey Supreme Court Orders State and Property Tax Appeal Deadline Extensions

In an effort to address the severe disruption to corporate and local property taxpayers resulting from the State of Emergency declared in response to the COVID-19 pandemic, the Supreme Court of New Jersey entered an order on March 19, 2020 extending deadlines for various local tax appeals. Generally, local property tax appeals are required to be filed by April 1, or within 45 days of the bulk mailing of Assessment notices, or by May 1 where a municipal-wide revaluation or municipal-wide reassessment has been implemented. Property located in Monmouth County, by virtue of its participation in the Real Property Demonstration Program, is subject to a now-passed January 15 deadline. Under the March 19 order, the filing deadlines for local property tax appeals and counter-claims in the New Jersey Tax Court and New Jersey County Boards of Taxation are extended to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. The March 19 order also extends several deadlines related to state tax appeals to the later of May 1, 2020 or 30 days after the Governor declares an end to the State of Emergency. Generally, such appeals are to be...

Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

The pandemic caused by the novel coronavirus, or COVID-19, has slowed business—and activity in general in many areas of the United States—to a crawl. New York State is one of the places hit hardest by this pandemic. Indeed, at the time of this writing, New York has the highest number of confirmed COVID-19 cases in the country. Unfortunately, the spread of the virus shows no signs of relenting. Nonetheless, manufacturing, the real estate industry, and other regulated businesses continue to face environmental reporting obligations, regulatory deadlines, and potential penalties for non-compliance. Businesses and other property owners are dealing with remediation deadlines, as well as operation and maintenance obligations of environmental controls. Businesses are also rightly concerned about reporting requirements under various permits, including under such federal permitting programs as the Resource Conservation and Recovery Act and others. Meeting these obligations has become significantly complicated by the pandemic and the ancillary issues it has brought on, such as the illness of key personnel, inaccessible facilities, and other impediments. On March 20, 2020, Governor Andrew Cuomo signed Executive Order 202.8, which directs that all “non-essential” businesses implement remote work policies for 100 percent of their respective workforces, effective March 22 through April...

Successfully Navigating Troubled Real Estate Waters in Novel Times

Successfully Navigating Troubled Real Estate Waters in Novel Times

The novel coronavirus is leaving its mark on all aspects of our lives, and the real estate industry is certainly no exception. Whether you’re in the initial planning stages of a mixed-use redevelopment, the mid-point of a lease term, or the final stages of a construction project, the challenges presented by our current environment can make you feel like you’re at the end of your rope. No need. While some of today’s issues are indeed novel, many can be viewed as a 2020 version of past issues that we have helped clients to not only weather successfully but also used as a springboard to advance projects forward as those troubled waters receded. The Gibbons Real Property Department relies on its transactional, development, redevelopment, and financing attorneys to bring a comprehensive and seamless approach to advancing the interests of our clients. To give some idea as to the breadth of experience we bring to help us identify current issues and strategies, some of the industry areas where we regularly practice include: Public/private infrastructure projects (P3s) Commercial leasing, conveyancing, and financing Redevelopment projects, including PILOT applications, redevelopment, and financial agreements and RAB bonds Mixed-use retail/multi-family residential, including affordable housing Healthcare facilities, including...

Environmental Reporting Deadlines During the Coronavirus Crisis

Environmental Reporting Deadlines During the Coronavirus Crisis

Manufacturing entities in New Jersey are subject to a myriad of environmental reporting obligations, with associated regulatory deadlines and penalties for compliance failures. In addition, New Jersey businesses face remediation deadlines, sampling requirements, maintenance of environmental controls, and the ramifications of missed deadlines and malfunctioning systems. In the face of the coronavirus pandemic, compliance can be complicated by illness of key personnel or contractors, closed or inaccessible facilities, and malfunctioning communications systems. Gibbons has been and will continue to be in contact with key officials at the New Jersey Department of Environmental Protection (NJDEP) to provide input and guidance on the Department’s response and convey the issues that impact our clients and the regulated community as a whole. We understand that NJDEP is currently working on a potential Administrative Order to address reporting and monitoring deadlines and is also considering a compliance advisory or Frequently Asked Questions-type document to address many of these concerns. On March 2, 2020, Governor Murphy signed Executive Order 102 establishing the Coronavirus Task Force, chaired by the Commissioner of the Department of Health (DOH). The following day, the governor signed Executive Order 103, declaring a Public Health Emergency and State of Emergency. Executive Order 103...

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the...

Force Majeure Provisions in Contracts

Force Majeure Provisions in Contracts

No one is able to predict how the coronavirus situation will play out or precisely how each of us might be impacted or for how long. It is possible your ability to perform various contractual obligations will be delayed. Many contracts protect parties against an inability to perform due to uncontrollable circumstances, at least in some situations, by inclusion of a so-called force majeure provision. This provision excuses certain behavior in certain situations determined to be beyond the control of the party failing to perform. Obviously, the text of the particular provision is critical to understanding what it says. We are writing to alert you that many force majeure provisions include a mandatory notice provision. If you don’t provide the required notice, you are estopped from raising force majeure as a defense against a claim arising out of your failure to perform. So if the coronavirus pandemic is interfering with your ability to perform contractual obligations, we urge you to review your contracts and deliver any required notices so as to protect yourself to the extent possible, and if your contract mandates that any other steps be taken to preserve the defense, take those steps as well. Gibbons stands ready...

Non-Residential Development Fees – How Much Do I Pay and When?

Non-Residential Development Fees – How Much Do I Pay and When?

The Statewide Non-Residential Development Fee Act (the “Act”) has been in full effect for the past three years. Yet, there remains confusion as to how the fee is calculated and when it is required to be paid. There shouldn’t be. Before the Act, both residential and non-residential development fees were governed by the Council on Affordable Housing’s (“COAH”) regulations, and municipalities adopted a form ordinance provided by COAH. COAH’s regulations, for instance, permitted all development fees to be collected with up to 50% due at the issuance of a building permit and 50% due at the issuance of a certificate of occupancy. The same regulations permitted municipalities to collect the full fee at the issuance of a certificate of occupancy. The current Act makes it crystal clear that “the payment of non-residential development fees … shall be made prior to the issuance of a certificate of occupancy for each development.” The Act also lays out a process for preliminary and final assessments of fees, including a notice required upon issuance of a construction permit to the tax assessor to conduct an initial evaluation of the fee. Thus, any requirement for the payment of a development fee as a condition of...

Eight Gibbons Real Property and Environmental Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

Eight Gibbons Real Property and Environmental Attorneys Selected to 2020 New Jersey Super Lawyers and Rising Stars

Attorneys from the Gibbons Real Property and Environmental Departments were featured in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars, with five attorneys on the 2020 Super Lawyers list and three on the 2020 Rising Stars list. These attorneys were listed in a wide range of categories, including Environmental, Land Use/Zoning, and Real Estate. The Gibbons attorneys listed in the 2020 issue of New Jersey Super Lawyers are Russell B. Bershad, Howard D. Geneslaw, William S. Hatfield, John H. Klock, and Susanne Peticolas. Jordan M. Asch, Andrew J. Camelotto, and Cameron W. MacLeod were selected to the 2020 New Jersey Super Lawyers Rising Stars section. For the full release, please see here.