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. 

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.

There has been quite a flurry of legislative activity this year in the arena of green building and renewable energy. A few examples of new and proposed laws follow below.

Solar Installations

• On January 16, 2010, just prior to leaving office, Governor Jon Corzine signed the "solar farm bill" (P.L. 2009, c. 213) which, among other things, authorizes a person who owns preserved farmland to install and operate biomass, solar or wind energy generation facilities, structures and equipment on the farm for the purpose of generating power or heat and adds "the generation of power or heat from biomass, solar, or wind energy" to the list of permitted activities that may be conducted on commercial farms.
• On April 22, 2010, Governor Chris Christie approved a new law (P.L. 2010, c.4), which amends a number of existing State laws, including the Municipal Land Use Law, to require that solar panels be excluded from the calculation of impervious coverage. The term “solar panel” is defined to include “an elevated panel or plate, or a canopy or array thereof, that captures and converts solar radiation to produce power, [but] excludes the base or foundation of the panel, plate, canopy or array."
• While on the topic of solar, it is important to note that before installing a solar energy system, the owner or operator of the facility should confirm that it will have unobstructed access to sunlight and secure this resource for the future. This can be accomplished by acquiring an easement across adjacent properties. Fortunately, New Jersey recognizes easements for solar energy facilities and has set forth the minimum content requirements for such easements in the Solar Easements Act, N.J.S.A. 46:3-24, et seq.
   

Property Assessment Clean Energy
During the current session, many green bills have been introduced in the State Legislature. One of the more interesting legislative proposals being considered is Senate bill S1406 which, if adopted, would create a property assessment clean energy municipal financing program. Under the proposed program, the New Jersey Economic Development Authority in consultation with the Board of Public Utilities would provide money through low-cost sources of financing, such as qualified energy conservation bonds, to municipalities interested in loaning funds to property owners for the purchase of solar equipment. Property owners receiving these funds would pay back their loans through a special assessment and the assignment of solar renewable energy certificates.

 

New Energy Efficient Home Credit
At the federal level, Congress recently passed a bill (H.R. 4213) that extends the life of the New Energy Efficient Home Credit, which provides a $2,000.00 tax credit for a qualified new energy efficient home and a $1,000.00 credit for a qualified manufactured home, through December 31, 2010. However, the bill must still go through reconciliation and be signed by the President.

 

Conclusion
Clearly, the aforesaid legal developments will impact the real estate industry. Therefore, it is important to become familiar with these, and other new and proposed legislation.

These guidelines might specify, for example, that construction in tenant spaces shall conform to LEED for Commercial Interiors and must be performed by experienced green contractors and subcontractors contained on a pre-approved list.  A landlord might also want to include in the interior fit-out guidelines for the building product and material specifications and a requirement that tenants employ a construction manager who is a LEED accredited professional.  In any event, the owner of a green commercial building, who is planning to rent it out, should carefully think though and plan the interior fit-out guidelines.
 

(a) such person shall own and have a basis in the home during its construction

(b) the home is located in the United States and meets certain energy saving requirements

(c) construction is substantially completed after August 8, 2005 and

(d) the person who constructed the home sells or leases the home to another person for use as a residence after December 31, 2005, and before January 1, 2010. See 26 U.S.C. § 45L. 

Although the New Energy Efficient Home Credit expired on December 31, 2009, it may be extended for another year.  Recently, Congress passed H.R. 4213 - the American Workers, State, and Business Relief Act of 2010, which, among other things, extends the deadline for this tax credit through December 31, 2010.  However, this new legislation must still go through reconciliation and be signed by the President.

Both the special assessment payments and the solar renewable energy credits shall be assigned by the municipality and the homeowner to the New Jersey Economic Development Authority, and the proceeds from the assessments and the sale of the solar renewable energy credits shall be used by New Jersey Economic Development Authority to pay bondholders and to provide financial incentives to municipalities to participate in the ‘Municipal Solar Energy Financing Program.’ S. 1406, 214th Leg., 2010-2011 Sess., § 2.b. (N.J. 2010).
 

An identical bill to S1406 was introduced in the NJ State Assembly on March 15, 2010, as A2502.

In 1992, the FTC first issued its Guide for the Use of Environmental Marketing Claims, also known as the “Green Guides,” to assist marketers of products and services having environmental attributes.  Although compliance with the Green Guides is voluntary, marketing activity that is inconsistent with the rules outlined therein may provide a basis for corrective action by the FTC.
 

According to its statement of purpose, the Green Guides address the application of the FTC Act to environmental advertising and marketing practices, establishing general principles that apply to all sales promotional activities and providing direction on particular environmental marketing claims.  Some “general principles” under the Green Guides include the use of clear, conspicuous and understandable qualifications and disclosures in advertising, the avoidance of overstatements relating to environmental attributes, especially ones created by implication, and substantiation.  Direction on particular environmental marketing claims in the Green Guides relates to the use of terms connoting general environmental benefits, such as “eco-friendly,” and representations on specific attributes, including degradability, compostability, recyclability, recycled content, source reduction, refillability and ozone safety and friendliness. 
 

Presently, the Green Guides provide no specific instructions for advertising building products.  However, this may soon change.  During the course of 2008, the FTC held a series of workshops to obtain feedback from the public on ways to improve the Green Guides to address environmental marketing claims not covered by the Green Guides.  One of these workshops held on July 15, 2008, specifically treated the topic of green building.
 

Overarching themes at this workshop included, among others, (1) overstating performance, (2) defining buzz words and (3) incorporating life cycle analysis into environmental marketing claims.  An example of an overstatement might be a builder’s assertion that an energy efficient home will guarantee specific energy savings when the truth of such claim is dependent on factors outside of the builder’s control, such as fluctuating utility costs and homeowner use patterns.  Similarly, the words “sustainable,” “natural” or “low-emitting” may also deceive a consumer if they are not defined.  Certainly, the word “natural,” for instance, can be misleading if the consumers being targeted interpret all things “natural” to be good, when – in reality – this is not always the case.  Finally, life cycle analysis is essential to understanding the true impact of a building product and its benefit to the environment.
 

For example, according to Rick Cantrell, who testified on behalf of Sustainable Forestry Initiative at the July 15th FTC workshop, significantly less energy is required to manufacture exterior walls with wood than concrete or steel.  However, in order to more fully evaluate the environmental friendliness of wood, it might also be necessary to look at the cost and energy factors at each stage of the product’s “life” beginning with the extraction of raw materials and continuing through the manufacturing process, installation or delivery, actual use and maintenance and finally ending with retirement and disposal.
 

The Green Guides currently do not address the use of life cycle analyses in environmental marketing claims due to the insufficiency of life cycle data on products.  The participants at the July 15th FTC workshop spoke about this continuing reality, as well as the lack of consensus on scientific methodologies for life cycle analyses.
 

In short, it is unclear what changes the FTC will make to the Green Guides relating to the marketing of building products and materials or when the updates will be issued and released to the public.  Perhaps, the final product will make the exchange of these goods a little bit easier.  In any event, green builders and producers of energy-efficient products would be well advised to seek legal counsel before embarking on their advertising campaigns.