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

In United Parcel Service v. Secaucus, UPS failed to properly respond to a request for information as to income and expenses made by the tax assessor pursuant to N.J.S.A. 54:4-34, universally known as a “Chapter 91 request.” Later, when UPS brought an action in the Tax Court to challenge its 2011 assessment, the assessor moved to have the action dismissed due to UPS’s failure to properly respond to the Chapter 91 request. This is what a tax assessor typically does in these circumstances because the statute is clear that the failure of the owner to respond to a Chapter 91 request within 45 days is an absolute bar to the right to bring an appeal of the assessment.

The Tax Court, noting the “severity of the sanction,” also noted the trend in the cases to hold the assessor to strict compliance with its obligations when making a Chapter 91 request, i.e., providing a copy of the statute and adequate notice to the property owner framed in language that is both clear and unequivocal. Here, where the tax assessor could not produce a copy of its notice, and there were various issues of proof, the Tax Court ruled that the Chapter 91 request was defective and UPS could prosecute its appeal.

So if a property owner fails to respond or properly respond to a Chapter 91 request and then brings an appeal of its assessment, the property owner might be able to defeat the assessor’s motion to dismiss for failure to comply with the Chapter 91 request by demonstrating some element of the assessor’s request did not meet the assessor’s obligations with regards thereto. That’s good to know, and might be very useful in the right circumstances. But that’s not the lesson here. The lesson is to respond to Chapter 91 requests in a timely and informative manner. Then, should the taxpayer bring an appeal, the assessor will not be in a position to even raise Chapter 91 as a basis to dismiss the property owner’s appeal.

Shepard A. Federgreen is a Director in the Gibbons Real Property & Environmental Department.

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On May 1, 2012, a law took effect that will allow New Jersey farmers and wineries to skip wholesalers and sell directly to retailers and consumers. The new law grants similar rights to out-of-state wineries and finally cleared the way for the Garden State to begin issuing new winery licenses to growers. While local business and political leaders are hoping the relaxed regulations will encourage further investment in the state’s wine industry, producers, retailers, and wine lovers alike are cheering the increased access to locally-grown wines ahead of the summer tourism season.

The new law, which we reviewed here in January, resolved the constitutional dispute at the heart of the Third Circuit’s decision in Freeman v. Corzine. That decision invalidated an earlier law, passed in 2010, that granted the same direct-to-retailer-and-consumer privileges to New Jersey growers, but at the expense of out-of-state wineries. The new licenses created by the law fall into two categories: (1) a Plenary Winery License, available for $938 and (2) a Farm Winery License  (which limits production to “not more than 50,000 gallons per year”), available for between $63 and $375 depending on production volume. Both licenses allow growers that produce “not more than 250,000 gallons per year” to distribute wine directly to retailers for an additional fee. Retail shipping fees are graduated depending on the amount of wine produced each year, and range from $100 to $1,000. In addition, growers may ship up to twelve cases of wine per year, directly to any individual consumer located anywhere inside or outside New Jersey. Finally, growers may also open up to 15 “salesrooms” throughout the state for sampling on the premises and for retail sale and consumption on and off the premises. The fee for each salesroom is $250.

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To fully implement the Site Remediation Reform Act, the New Jersey Department of Environmental Protection (NJDEP) has published a notice of adoption of amendments to the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS rules), N.J.A.C. 7:26C in the New Jersey Register today, May 7, 2012. This adoption also amends several other rules related to site remediation in New Jersey, including the repeal and replacement of the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and amendments to the Industrial Site Recovery Act rules, N.J.A.C. 7:26B. This rule adoption is concurrent with the final May 7, 2012 deadline for almost all remediating parties to engage a Licensed Site Remediation Professional to conduct remediations in NJ.

David A. Brooks is a Director in the Gibbons Real Property & Environmental Department.

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The New Jersey Department of Environmental Protection ("NJDEP") will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring ("RPS") system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act ("SRRA").

Under the statute, the factors that NJDEP may consider in ranking the sites include: 

• the level of risk to the public health, safety, or the environment;
• the length of time the site has been undergoing remediation;
• the economic impact of the contaminated site on the municipality and on surrounding property; and
• any other factors deemed relevant by the NJDEP.

The RPS system is a computerized modeling system designed to help the Department to categorize sites based on potential risk to public health, safety or the environment. The RPS model utilizes a variety of information, including ground water, soil, and vapor intrusion, sampling data to determine a site score. Once the RPS score is determined, the site is catalogued for relative ranking against sites with similar scores and assigned a specific category number from 1 through 5. Category 1 represents the lowest score (least potential risk to public health) and Category 5 represents the highest score (greatest potential risk to public health).

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Nancy A. Lottinville, Esq., Counsel to the Gibbons Real Property & Environmental Department, will speak at the Practicing Law Institute’s New Jersey Basic Law CLE Marathon on May 29, 2012. Nancy will present on New Jersey real estate closing procedures.

The all-day program is designed to satisfy part of the newly instituted mandatory continuing legal education requirements in New Jersey and to hone legal professionalism. In accordance with New Jersey’s requirements, this one-day program will include New Jersey-specific instruction and discussion on topics authorized by the Supreme Court of New Jersey Board of Continuing Legal Education, including Civil Trial Practice, Criminal Trial Practice, Basic Estate Adminsitration, Real Estate Closing Procedures, Trust and Business Accounting and New Jersey Professional Responsibility and Ethics.

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Twelve lawyers in the Gibbons Real Property & Environmental Department were listed by New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars as leaders in their fields. In addition, Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, was listed as a top 100 attorney in New Jersey. Overall, 69 lawyers in the firm were featured in these two publications.

The following members of the department were listed in the 2012 issue of Super Lawyers: 

• Russell B. Bershad, Real Estate, Co-Chair of the Gibbons Real Property & Environmental Department
• Irvin M. Freilich, Environmental Litigation
• Howard Geneslaw, Land Use/Zoning
• Douglas J. Janacek, Land Use/Zoning, Co-Chair of the Gibbons Real Property & Environmental Department
• John H. Klock, Construction/Surety
• Susanne Peticolas, Environmental

Those listed in the Rising Stars section were:

• Michael Miceli, Land Use/Zoning
• Sandro G. Ocasio, Environmental Litigation
• Uzoamaka N. Okoye, Business Litigation
• Jennifer M. Porter, Land Use/Zoning
• Jennifer P. Smith, Real Estate
• Jason R. Tuvel, Land Use/Zoning

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Irvin M. Freilich, Team Leader of the Gibbons Environmental Practice, Susanne Peticolas and Paul M. Hauge (Director and Associate, respectively) authored the lead article in the Environmental Law section of the February 27, 2012, New Jersey Law Journal. The article, entitled “Step Aside or Step Up?,” discusses recent decisions from the New Jersey Appellate Division in Magic Petroleum Corp. v. Exxon Mobil Corp. and from the Third Circuit in Raritan Baykeeper v. NL Industries, Inc. These environmental cases involve the often-confusing doctrine of primary jurisdiction, under which courts -- sometimes -- abstain from rendering a decision in a given case to allow an expert agency to make its own determination first. You can read the entire article here.

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Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department and Peter J. Ulrich, a Director in the Gibbons Corporate Department, recently co-authored an article published in the New Jersey Law Journal entitled, “N.J. Bulk Sales Notification Requirements: Recent Changes and Guidance.” The article describes key issues of concern with applicability of the law which was broadened significantly in 2007 and then scaled back last fall.

The article outlines the notification and escrow process and also highlights potential pitfalls that arise in special cases. To read the complete article, click here.

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Jennifer M. Porter, Esq., a Director in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program SEQRA, on Thursday, June 7, 2012, in Long Island (Carle Place), New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on regulatory requirements and compliance, analysis methodologies and techniques of SEQRA, recent trends and case law, incorporating renewable resources into the planning process and environmental review of public/private partnerships. Ms. Porter will be part of the morning panel and will be discussing SEQRA basics, including applicable state and local regulations, SEQRA processes and procedures, agencies and decisions subject to SEQRA, determining “significance,” and EIS preparation and review.

The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

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