The seminar will be presented from 8:00 AM – 12:30 PM September 9, 2009 and September 10, 2009. The September 9th event will be held at The Villa in Mountain Lakes, New Jersey, and the September 10th event will be held at the Sheraton in Eatontown, New Jersey.

 

The seminar will provide actionable recommendations to cut energy costs immediately, while providing the insight to prepare for upcoming regulations and impending laws and current initiatives, like New Jersey’s Energy Master Plan. The material shared at the event will benefit New Jersey-based building owners, business owners, CFOs, energy managers and facilities managers - anyone who makes decisions about energy for buildings of 20K square feet or more.
Topics to be discussed include:

• Quick and no-cost building upgrades to reduce energy consumption
• Reducing peak demand
• Emerging technologies and incentive opportunities
• State Renewable Energy Tax Exemption
• Grants and loans for energy efficient projects
• Energy audits
• NJ Smart Start Buildings Pay-for-Performance Programs
• And other related topics.

Mr. Mangini will present the seminar with Joseph Carlamere of New Jersey SmartStart Buildings. Mr. Carlamere is involved in environmental consulting, company TRC’s design and development of the sector initiative of New Jersey’s Clean Energy Program as part of the team developing programmatic strategies that resonate to the following sectors: industrial, institutional, multi-family, higher education and hospitality. He also manages the Local Government Energy Audit Program for the NJOCE and the BPU.
 

Additional information and details on how to register for the events is available online here.
 

Recently, in the matter of Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al., the Appellate Division of the New Jersey Superior Court interpreted this provision of the MLUL and decided, among other things, that the running of the period of approval for 18 golf cottages was tolled when a zoning officer declined to issue a building permit for the construction of the second such cottage, “because of his perception that the project was being advertised in a manner contrary to the Board’s prior approvals.”  In the Court’s view, the zoning officer was “plainly” acting as an agent of the Borough, a political subdivision, in rendering this decision which, according to the Court, “was manifestly an effort on his part . . . to ‘protect the public health and welfare’ in the Borough [and] . . . had the direct and indirect effect of halting the developer’s work on the project, at a time at which the developer was evidently ‘ready, willing and able to proceed’ with the building of the next dwelling.”

The Appellate Division’s decision in Friends of Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Board, et al. may be viewed on WestLaw at 2009 WL 1643315 (N.J.Super. A.D.) and has been approved for publication.

By this case, the Appellate Division has provided a clear message to all parties involved in the prosecution and disposition of applications for development under the MLUL that a failure on the part of municipal board members to abide by N.J.S.A. 40:55D-10.2 - while not triggering a new hearing - will likely cause the board’s decision to be deliberated and voted on anew.  The Appellate Division’s decision in Schmidhausler v. Planning Board of Borough of Lake Como may be viewed on WestLaw at 2009 WL 1491306 (N.J.Super. A.D.) and has been approved for publication.

The Appellate Division of the Superior Court of New Jersey recently affirmed a trial court’s decision finding that the property owner was without recourse when its tenant was relocated and the New Jersey School Construction Corporation (“NJSCC”) decided not to acquire the property.  R.A.R. Development v. Associates v. New Jersey Schools Constr. Corp., 2008 WL 2663403 (N.J. Super. A.D. 2009).  In this particular case, NJSCC targeted a property for acquisition in order to build a new school.  After making an offer to acquire the property but before filing a condemnation complaint, NJSCC agreed to relocate a commercial tenant located at the property in question.  Since the relocation was going to take more than one year at a cost of approximately $5 million, NJSCC did not want to wait for the condemnation complaint to be filed before starting the relocation process.  When the move was almost complete, NJSCC decided not to acquire the property.  The property owner was extremely upset since it lost a tenant occupying over 100,000 square feet of space.
 

The property owner filed a lawsuit against the NJSCC alleging several causes of action, including tortuous interference with contractual and economic advantage, estoppel and inverse condemnation.  In terms of the tortuous interference claims, the court found that the NJSCC acted in good faith and pursuant to its statutory rights since New Jersey law permits the relocation of tenants prior to acquiring property by eminent domain (subject to certain requirements).  In terms of the estoppel argument, the court found that the property owner did not rely to its detriment on any representations of the NJSCC concerning the relocation of its tenants.  Finally, the court dismissed the inverse condemnation claim finding that the lease was at the end of its term (1 month remaining at the time the tenant completed its move) and the tenant had paid all rent due through the term of the lease.  In rejecting the property owner’s agreement that it was entitled to compensation for the taking of its renewal option, the court held that a “landlord’s expectation that the tenant will exercise the right of renewal does not confer on the landlord a recognized property interest subject to just compensation for its taking.”
 

The property owner in this case was harmed, but without recourse.  When negotiating with a condemning authority, one must keep in mind that New jersey law allows a condemning authority to change its mind at various stages of the process with little regard for the property owner’s rights.

Mr. Mangini states, "Green building is defined in a number of ways, depending on the context. The Environmental Protection Agency defines it as “creating structures and using processes that are environmentally responsible and resource-efficient throughout a building’s life cycle, from siting to design, construction, operation, maintenance, renovation, and deconstruction.”

You can read the full roundtable discussion online here. (PDF)

1) Amend the bill to require a firm 20% set-aside for affordable housing (COAH or Mt. Laurel Housing) as opposed to the 20% being a cap on the amount of affordable housing; and
 

2) Granting municipal boards discretion to decline a conversion if they are not satisfied that the conversion will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zone ordinance. 
 

The bill now requires the legislature to amend the bill in accordance with the foregoing requirements.  A copy of the Governor's Conditional Veto is available online here.

This is a very important case for property owners since it makes it clear that attorney fees and expenses can be recovered in the event the government files a condemnation action and later abandons the taking.  However, if a property owner spends a substantial amount of time and money negotiating with the condemning authority and the complaint is never filed, there is no right to recover attorney fees and expenses.  A complaint must be filed.  In addition, property owners may now look to recover attorney fees and expenses incurred prior to the filing of the complaint providing the attorney fees and expenses are directly related to the taking of the property and are incurred after the property is targeted for condemnation.

Suing a tenant to retake possession of the premises is only half the battle.  In New Jersey, commercial landlords can evict a tenant through a summary dispossess action (aka "eviction") for non-payment of rent or other covenant defaults.  Once a judgment of possession is entered, the next step is to actually evict the tenant.  If the tenant will not peaceable move after entry of the judgment of possession, then a landlord can request a warrant for removal be issued by the sheriff. 

Once the warrant is issued, the commercial landlord needs to be prepared to fulfill the eviction process.  Often this means figuring out what to do with "stuff" left behind at the store.  Tenants sometimes leave everything from trash to copiers to inventory to personal items. But what exactly can the commercial landlord do with these items?  Can you simply toss out this "stuff"?  Can you sell these items? What if the tenant shows up and demands its items back a month or two after the tenant has been evicted?

The New Jersey Abandoned Tenant Property Act (N.J.S.A. 2A:18-74) is a commercial landlord's solution for disposing, selling and/or returning items left by a tenant.  Under the New Jersey Abandoned Tenant Property Act, a commercial landlord is required to give written notice before disposing or selling a tenant's left over items.  

Following is a quick list of questions to ask your attorney about adherence to the New Jersey Abandoned Tenant Property Act, as well as some other issues to address.
 

1.  What Type of Notice Needs to be Provided?   The New Jersey Abandoned Tenant Property Act provides specific provisions for sending written notice to tenants before disposing or selling items.  Failure to adhere to these strict guidelines could leave the commercial landlord with liability to not only the tenant, but also third parties who may possess liens or have an interest in the abandoned property (i.e. equipment leases).  But, which address does notice need to be sent - the premises? the tenant's prior address? Further, is the landlord required to conduct a search for other addresses?
2. Does Notice Have to be Sent to Third Parties?  Beside the tenant's property left at the premises, there may be other entities with an interest in the property, including employees, creditors, financial institutions or leasing companies.  Has your attorney conducted a UCC search to determine if there are liens on these items?  If so, have you provided these entities appropriate notice?   Further, has the notice directed the tenant to inform third parties of the abandonment?
3. Can You Just Sell Valuable Abandoned Property? Although the New Jersey Abandoned Tenant Property Act provides for disposition of the tenant's property after appropriate notice, can the landlord collect any removal, storage, attorney fees, and/or other costs associated with the items?
4. What About Perishable Items or Trash?  Often upon re-entry, commercial landlords  find the premises with trash or perishable items.  Can the landlord simply throw these items away or does notice need to be sent first?
5. Do any Federal or State Statutes Preempt the Commercial Landlord's Actions?  Your attorney should be able to advise if any Federal or other State statutes effect your rights. For instance, are there any environmental issues that need to be addressed prior to disposal of the left over items?
6. What if the Tenant Shows Up During the Notice Period?  Often tenants will just leave the items left over for the commercial landlord to handle.  But what if the tenant shows up?  Can the commercial landlord charge them storage fees before the remove the items?  What about collecting all rents due and owing, including attorneys fees?

Prior to disposing, selling or giving the left over items back to the tenant or third parties, it is advisable that a commercial landlord review these and many more questions with a licenced New Jersey attorney.  Answering these questions beforehand can help you with the proper strategy to deal with troublesome tenants and keep your commercial property(s) profitable in these cautious economic times.

In order to meet the substantial evidence standard an adequate record must exist. This requires a verbatim recording of the proceedings. The MLUL expressly requires that “[t]he municipal agency shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means.” N.J.S.A. 40:55D-10f. Although there is no comparable provision in the LRHL, the Appellate Division in Concerned Citizens v. Mayor implied that the minimum procedures required for hearings on applications set forth in the MLUL applies equally to the conduct of proceedings by municipal agencies under the LRHL. 370 N.J.Super. 429, 463 certif. denied 182 N.J . 139 (2004). The application of the MLUL in this regard is reasonable in light of the importance a written record plays in memorializing issues, concerns and policy considerations that were relevant when the municipal board made its determination. A written record of proceedings also provides the judiciary with a basis for evaluating the validity of a determination when it is challenged on appeal.

A redevelopment entity must also take care not to enter into a redeveloper agreement in anticipation of the project area that is the subject of such agreement being made the subject of a redevelopment plan. On the contrary, in Monroe Properties, LLC, et al. v. The City of Hoboken, et al., an unreported decision decided after the Vineland Const. case, the Appellate Division squarely rejected an attempt on the part of a municipality to select a private redeveloper prior to designating the study area as an area in need of redevelopment. The Court made clear that a municipality or other redevelopment entity has no inherent authority to enter into a memorandum of understanding for redevelopment but, rather, must abide by the statutory procedure set forth in the LRHL. Once a municipality has determined that a particular geographic area within its jurisdiction is in need of redevelopment or in need of rehabilitation and has adopted a redevelopment plan for such area, then it or a separate redevelopment entity designated by the municipal governing body may exercise redevelopment functions, which include, among other things, entering into contracts with redevelopers “for the planning, replanning, construction, or undertaking of any project or redevelopment work.” N.J.S.A. 40A:12A-8f.

Mr. Forshner will present a seminar entitled Trends in Land Use Law. The seminar will take place Wednesday, April 22, 2009 from 9:30-11:30 AM. The seminar will discuss recent legislation, regulations and court decisions relating to the land development review process. The panel will examine the most recent significant changes in land use law, and will discuss their implications for the future of the housing industry. 

Mr. Duggan will present a seminar entitled, Surviving Economic Downturns, which will be held Thursday, April 23, 2009 from 9:30-11:00 AM. The seminar will address how the global economic downturn has affected the homebuilding industry. The panel will touch on topics including: tax assessments, reforms to construction law, specialized housing, and the application of the recently enacted Permit Extension Act. 

Mr. Mangini will join with attorneys, home builders and developers in presenting The Legal & Business Aspects of Building Green. The seminar will take place Thursday, April 23, 2009 from 1:30-3:30 PM. The presenters will discuss recent legislation pertaining to tax incentives and municipal planning for green building. The seminar will offer suggestions for properly incorporating green building practices into your existing business in order to give you an edge in the marketplace. 

You can access additional seminar information, a full list of convention events, and registration information online here. 

An identical bill has been introduced in the New Jersey State Assembly and referred to the Housing and Local Government Committee.
 

The bill as approved by the Senate Economic Growth Committee and introduced in the Assembly may be accessed online here.

The seminar will focus on land use law as it continues to undergo significant changes. The seminar will discuss recent regulations which will impact applications, boards, and cases which are currently ongoing. This annual update will keep abreast of recent changes in the area of land use law. The program features a comprehensive review of recent cases and practice tips from some of the state’s leading land use practitioners.

You can access additional information, and information on how to register, online here.

Trinity Matzel owned an apartment building in East Orange which produced rental income for many years prior to 2006.  During 2006, the property owner performed major renovations at which time the tenants vacated the apartment building.  As a result, no income was received in 2006.  The following year, the tax assessor sent a Chapter 91 request to the property owner seeking annual income and expense information for the property.  The property owner did not respond to the Chapter 91 request.
   

The following year, the property owner filed a tax appeal seeking to appeal the assessment.  The municipality moved to dismiss the complaint arguing that the property owner failed to respond to the Chapter 91 request and, as a result, the complaint must be dismissed. [See New Jersey Law Journal for discussion on Chapter 91] The property owner, relying in part upon the HJ Bailey case, argued that since the property did not produce any income in 2006, it was not required to respond to the Chapter 91 request seeking information for that particular year.  The municipality, relying primarily upon an prior Appellate Division case captioned Alfred Conhagen v. Borough of South Plainfield, 16 N.J. Tax 470 (App. Div. 1997), argued that the complaint should be dismissed even though the property did not produce income in the year of question, because in prior years, the property did produce income and the property owner failed to notify the assessor of the change to a non-incoming producing property.
   

The Tax Court reviewed the Conhagen and HJ Bailey cases and found that the Conhagen case was more similar to the case at bar and dismissed the taxpayer’s complaint.  The Tax Court followed Conhagen’s holding that a property owner “had a mandatory duty to respond to the tax assessor and a duty to demonstrate that its property ceased to be income-producing as of May 1994.” (emphasis added).
   

The definition of “non-incoming producing” is not as clear as one would think.  If the property generated income at one time and subsequently becomes owner occupied or vacant, the property owner should respond to the Chapter 91 request and advise the assessor of the status of the property.   In light of the continued uncertainty in this area of the law, prudent property owners should respond to the annual Chapter 91 request even if the property does not generate any income.  The response is easy to complete and will provide you with protection in the event a motion to dismiss your complaint is filed.

In the case in question, the property owner failed to respond to the Chapter 91 request and was limited to the remedy of a “reasonableness hearing.”  A reasonableness hearing is not a hearing to determine the value of the property, but rather a hearing to determine the “reasonableness of the assessment imposed by the assessor.”  The New Jersey Supreme Court has described such a hearing as:
 

 “The inquire will focus solely on whether the valuation could reasonably been arrived at in light of the data available to the assessor at the time of the valuation.  Encompassed within this inquiry are (1) the reasonableness of the underlying data used by the assessor and (2) the reasonableness of the methodology used by the assessor in arriving at the valuation.”
 

To no surprise, the property owner was not successful in challenging the reasonableness of the assessment.  The primary obstacle in a reasonableness hearing is not only its limited scope, but the legal problem arising from the “presumption of validity”  of the original assessment.   What this means in lay terms is that the data upon which the assessor relied and the assessor’s methodology are “presumed to have been reasonable.”  In light of the presumption, the property owner is required to overcome the presumption by producing evidence that is “definite, positive and certain in quality and quantity.”  Put another way, the property owner must establish that the “assessor acted arbitrary or capriciously in setting the assessments.” 
   

Although the property owner proved that the assessor’s methodology did not include a physical inspection of the subject property, did not include any effort to determine the fair market value of the property, and did not include any accumulation or thorough investigation or current data from the market place, the property owner nevertheless lost his case.  The Court found that the assessor was permitted to rely upon data appearing in the file produced or accumulated by his predecessor assessors without verifying or updating the data, and is entitled to rely upon information and recommendation from the municipal appraisal expert without inquiring as to the basis for the information and recommendations.
   

Although a reasonableness hearing is not impossible to win, the standard is extremely high.  Keep your eyes open for the annual Chapter 91 request and respond in a timely manner.

1. Look Back at 2008:   Was the community being separately assessed for any common property or area in 2008?  Look for any payments to your local tax assessor and determine why the payments were made.  If no payments were made and the Association has not received any tax assessment notices, the Association is most likely being treated fairly.  However, if payments were made, determine which lot and block were subject to the taxes, who owns the lot, and what the lot is being used for.  This information is necessary to determine if the property can be assessed.
2. Be Prepared For 2009:  In late January or early February 2009, you should receive an assessment notice which is generally sent on a small card advising you of your assessment for 2009.   If you do not receive your tax card by the end of February 2009, call your tax assessor and ask for a copy.  You will need to know the tax lot and block for the common property when you call your assessor.  If the notice shows an assessment for common property, you need to do the following: A. Review your governing documents to confirm that the common property is specifically identified as common property or common element, subject to restrictions on use and transfers. B. Confirm your type of association - condominium association or home owners association (HOA).  The basis to challenge the assessment varies depending upon the type of association.   Condominiums have the benefit of a separate New Jersey law that prohibits the taxing of common elements, while HOA’s do not have the benefit of a separate law.  HOA’s must rely upon case law that has been developed over the years. C. If your common property is specifically identified as common property and subject to restrictions, you most likely should not be assessed. D.    Calendar the appeal deadline.  The deadline to file your tax appeal is April 1, 2009. If your town sent out the tax cards late, the deadline may be extended.  You can call your tax assessor to confirm the appeal deadline.   
3. Prepare Your Case Now.  Although April 1, 2009 seems far off, it will sneak up on you quickly.  If your common property was assessed in 2008, it most likely will be assessed in 2009.  Copy your most recent tax bill and send it to your counsel with a copy of the governing documents and a detailed description of the property in question. 

Now is the time to make certain your homeowner associations are only paying their fair share of the tax burden and not being subject to the whim of an aggressive tax assessor.  If you need assistance with a tax appeal, call Timothy P. Duggan, Esquire at 609-895-7353, or email him at tduggan@stark-stark.com.  Mr. Duggan is a shareholder of Stark & Stark and specializes in property tax appeals.