Appealing a Zoning Officer's Decision

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If you are denied the issuance of a permit on the basis that the proposal violates the zoning ordinance, you may wish to seek an appeal of the zoning officer’s decision.  An appeal of any order, requirement, decision or refusal made by an administrative officer based on the zoning ordinance is brought by an appellant to the zoning board of adjustment. N.J.S. 40:55D-70a.  The review of the decision by the board is to determine whether there was an error under the provisions of the zoning ordinance and applicable statutes.  For example, a zoning officer may refuse to issue a zoning permit because the applicant’s proposal does not conform to a particular bulk standard required by the zoning ordinance.  The zoning board has the power to reverse the decision of the zoning officer and require the officer to issue a permit if the evidence presented to the board supports such result. Nevertheless, if the zoning officer is correct in the decision, then the board must affirm the zoning officer’s action.


When appealing the decision of an administrative officer, an applicant can make a simultaneous application seeking in the alternative variance relief if the board should affirm the officer’s determination.  If the board denies the appeal, then an appeal may be made to Superior Court.  The general rule is that all administrative remedies must be exhausted before seeking relief in Superior Court.  In the context of the decision of an administrative officer, an appellant must first seek relief from the zoning board, before filing an action in Superior Court.  21st Century v. D’Allessandro, 257 N.J.Super. 320 (App. Div. 1992). 

Appeals to the zoning board of adjustment from the decision of an administrative officer must be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal.  N.J.S. 40:55D-72a.   Failure to adhere to the time for appeal will result in the zoning board not having jurisdiction to consider the appeal.  See Sitowski v. Zoning Bd. Of Adj., 238 N.J. Super. 255 (App. Div. 1990)(the Law Division set aside the board’s consideration of an untimely appeal framed as an interpretation and the Appellate Division affirmed).  All proceedings in furtherance of the matter being appealed are stayed when an appeal of an administrative officer is taken to the zoning board.  N.J.S. 40:55D-75.  However, the officer whose decision is appealed may certify to the board after the notice of appeal is filed with him that a stay would in his opinion cause imminent peril to life and property by reason of the facts stated in the certification, and in such case the proceedings are not stayed.  For example, an appeal by a neighboring property owner of the issuance of a zoning permit would stay the right to build until the zoning board rules on the zoning officer’s decision. 

Attention Architects! Don't Forget to Do Your Energy Calculations When Designing for Green

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A recent case filed with the New Jersey Superior Court in Burlington County on July 19, 2010, captioned Auburn Road Associates v. Alberto & Associates, shows just how important it is to maintain careful attention to detail when designing or planning for a high performance building.  In this case, the plaintiff alleges in its complaint that the architectural and planning services firm it had retained to assist in the planning and development of a 38,750 square-foot shopping center “failed to include energy calculations in the relevant plans for the Woowich Center project.”  The complaint charges the defendant firm with negligence and breach of contract and seeks damages in the amount of $250,000 for delays and expenditures incurred as a result of the alleged omissions.

The Auburn Road Associates case may or may not have merit, but it demonstrates the potentially severe consequences that professionals may suffer if they fail to do their homework in preparing plans for improvements that are intended to meet the stringent energy efficiency goals or other “green” objectives of the project owner.

Financial Incentives for Commercialization of Clean Energy Technologies

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On July 15, 2010, the U.S. Department of Energy (DOE) announced that it was making available $30,000,000 in federal funds for qualified small businesses to support the commercialization of “near-term clean energy technologies,” such as innovations that utilize solar, wind, biomass or fuel cell technologies and nuclear or fossil energy through the Small Business Innovation Research program and the Small Business Technology Transfer program. Applicants may receive up to $3,000,000 over three years for research and development and distribution of these and other new technologies.

Interested small business owners may find more information about this funding program on the DOE’s website here.  The deadline for filing an application with the DOE is today, August 4, 2010, at 8 p.m. (Eastern Standard Time).

Being Finicky about Products and Materials Selection Criteria Is Essential to Creating a Genuinely Green Home

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When contracting to build a high-performance home that is worthy of the label "green," it is essential for the future homeowner to have someone on the project team who has experience in and understands energy-efficient building materials, appliances and products.  This responsibility can be delegated to the architect or a green building products and design consultant working with the architect.  Additionally, the homeowner’s contractor, although not a design professional, may be able to advise a homeowner with respect to green building materials, products and appliances.  However, whoever the homeowner chooses, at a minimum, should be accredited in a recognized green building certification protocol, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System or the National Association of Home Builders’ National Green Building Standard approved by the American National Standards Institute in January 2009.

Homeowners should also specify in their contract with the person advising on green building products and/or design just how green they want the home to be and what that means.  Indeed, recommendations and decisions in this regard may vary depending on whether the homeowner’s chief goal is protecting the environment, improving indoor air quality or saving money on energy costs.  For example, if a homeowner is primarily interested in building a home that is environmentally "sustainable," then - depending on how that term is defined - the person advising on green building products and/or design might suggest doing a "life cycle" analysis for each of the home’s principal components.  This entails a holistic evaluation of a given item’s impact on the environment at every stage of its "life," including extraction of raw materials, manufacturing and assembly, installation or delivery, maintenance, disposal and, possibly, reuse or recyclability.

Policing Unfair and Deceptive Environmental Product Claims in Advertising

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Vincent J. Mangini, Shareholder in Stark & Stark's Real Estate, Zoning & Land Use Group, authored the article, Environmental Law: Policing Unfair and Deceptive Environmental Product Claims in Advertising, for the July 19, 2010 New Jersey Law Journal.

The article discusses the US Federal Trade Commission's attempts to meet present day challenges when complying with the Guide for the Use of Environmental Marketing Claims. The FTC first issued the Guide in an attempt to assist marketers of products and services having environmental attributes to avoid running afoul of the FTC Act. Since the Green Guides were last updated in 1998, the interest in green products and services has grown tremendously, and therefore, the FTC is struggling to ensure providers are staying compliant with the guides.

You can read the full article online here. (PDF)

Identifying the Party on the Project Team Responsible for Green Building Certification

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A person seeking to achieve certification for an energy-efficient structure under a particular green building rating system, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System should delegate to a qualified member of the project team the responsibility for assembling, reviewing and managing all required documents and obtaining certification at the desired rating level, as specified in the project manual for the proposed structure.  The architect is often the best person to carry out these tasks provided that the architect is accredited under the green building rating system selected by project owner.

BuildingsNY/Green BuildingsNY Conference - Jacob K. Javits Center

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On June 17, 2010, I attended the BuildingsNY/Green BuildingsNY Conference at the Jacob K. Javits Center in New York City and was absolutely amazed at the number of vendors who were present and the array of educational programs that were available to attendees.  Although attendance did not appear to be overwhelming, probably due to the continuance of the Great Recession, the flow of inquisitive passersby was steady and enthusiasm was high at the Conference lending some credence to the notion that interest in green building can thrive even in a down economy.  I am going to make a point of attending next year.


Promotions East Conference - Atlantic City

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On June 8, 2010, I attended the Promotions East 2010 Conference in Atlantic City, New Jersey and was interested to see how many companies selling promotional items that have either a line of green products or are entirely green.  Everything from “eco-friendly packaging” to biodegradable water bottles to recycled paper and logo floor mats were on display.  One vendor was even selling anti-bacterial eco-bags!  It just goes to show how far “green-thinking” has penetrated not only our law, but also our corporate culture.

Managing Risk in Green Building Contracts

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Managing risk is crucial for anyone who seeks to construct a high performance building, especially with respect to the attainment of certification under a green building rating system, such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) Green Building Rating System, or the receipt of grants or tax credits for the installation of energy-efficient improvements or renewable energy facilities.  One way to manage these risks is the proper delegation of tasks to those on the project team with the greatest capacity to perform them successfully.  For example, the architect should take responsibility for adjusting project design in the event there are changes in the law relating to energy efficiency or building performance or changes in the standards relating to the applicable green building protocol being utilized by the project owner.  Likewise, the architect should be made to pay for compensatory and consequential damages that flow from any failure to achieve LEED certification or the loss of financial incentives if either such occurrence is due to design deficiencies or any other act or omission on the part of the architect.  However, these and any other type of risk allocation would have to be specified in the contract in order to be enforceable.

Coordinating Green Building Design Goals with Historic Preservation

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A developer should be especially careful when constructing a new green building within an historic district or within the viewshed of an historic building and when renovating an historic building into an energy-efficient structure.  Not only should a developer want to harmonize modern, energy-efficient design with the attributes of an historic building or neighborhood, but a developer may have to do so depending on the circumstances.  For example, if a project includes or otherwise impacts a property that is listed on (or is eligible to be listed on) the National Register of Historic Places and requires a federal permit or license or is the recipient of federal funding, it may be subject to review by the State Historic Preservation Office pursuant to Section 106 of the National Historic Preservation Act of 1966. 16 U.S.C. §470(f).  Similarly, a developer whose restoration plan for an historic building includes the installation of energy-efficient improvements must be certain that design and construction will comply with the Secretary of the Interior’s Standards for Rehabilitation published in the Code of Federal Regulations at 36 C.F.R. § 67.7 and the applicable provisions of the Internal Revenue Code (IRC) if the developer seeks both the rehabilitation tax credit under Section 47 of the IRC and the energy efficient commercial buildings deduction provided by Section 179D of the IRC or the nonbusiness energy property tax credit (for residential dwellings) provided by Section 25C of the IRC.

Older Entries

June 7, 2010 — Hot and Green Legal Topics: Round 2

June 3, 2010 — Developing Interior Fit-out Guidelines for Tenant Spaces in Green Building

May 28, 2010 — BPU's Office of Clean Energy Temporarily Suspends Acceptance of Applications for Home Performance with EnergyStar Program

May 20, 2010 — Green Building Performance Goals - Defining and Setting Consumer Expectations

May 17, 2010 — New Jersey's Renewable Energy Incentive Program

May 13, 2010 — NJ Energy Star Homes Program Offers Builders Generous Financial Incentives

May 6, 2010 — Bill Extending New Energy Efficient Home Credit through December 31, 2010 Awaits Reconciliation and Signature by President

April 30, 2010 — New Law Prohibits Inclusion of Solar Panels in Calculation of Impervious Coverage

April 27, 2010 — Economic Development Authority - NJ PACE

April 22, 2010 — Updates to the Federal Trade Commission's "Green Guides" May Impact Building Industry

March 2, 2010 — A Primer on Green Leases: Special considerations that permeate the negotiation process

February 24, 2010 — High Demand on Water Supply May Require Plan for Reclamation and Reuse

February 16, 2010 — A Renewable Energy Facility May Require an Easement from your Neighbor

February 8, 2010 — Governor Corzine signs bill creating Solar and Wind Energy Commission

February 4, 2010 — Governor Corzine Signs Solar Farm Bill

January 6, 2010 — New Jersey Clean Energy Program: Pay for Performance

December 21, 2009 — New York State Energy and Development Authority to provide loans for Energy Audits and Qualified Energy Efficiency Services under Green Jobs-Green New York Program

May 14, 2009 — Stark & Stark Shareholder Serves as Panelist for New Jersey Law Journal Green Building in New Jersey Roundtbale Discussion

April 17, 2009 — Governor Corzine Signs Residential Development Solar Energy Systems Act Into Law

November 19, 2008 — Going Green Should Not Increase You Tax Obligations

October 30, 2008 — Legislative Initiatives in Green Building Arena Abound

October 10, 2008 — Going Green - Here to Stay or Gone Tomorrow?

October 1, 2008 — Proposed Legislation Would Allow Energy Subcode To Be More Restrictive Than National Model Codes

August 7, 2008 — Green Buildings and Environmental Sustainability - Master Plan Element

August 5, 2008 — Inherently Beneficial Uses - Wind, Solar and Photovoltaic Energy Facilities