Gary S. Forshner

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Gary S. Forshner, Shareholder, practices in the Real Estate Group. Mr. Forshner concentrates his practice in commercial real estate, land use (zoning and planning) and real estate development. He also handles general corporate/commercial transactions as well as the creation and approval of condominium projects and planned unit developments. He has extensive experience on behalf of the telecommunications industry, including zoning and planning, leasing, and municipal bidding. Mr. Forshner also represents owners and developers in the residential, industrial, retail and office markets. His practice includes representation of national, international and local developers, lenders and businesses as well as charitable organizations and has served as special land use counsel to municipalities.


Articles By This Author

Governor Christie Suspends the Work of The Council on Affordable Housing (COAH) For 90 Days

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This afternoon Governor Christie signed an executive order suspending the work of the Council on Affordable Housing (COAH) for 90 days, except as necessary, in order to prevent the loss of affordable housing opportunities. The executive order calls for a five person task force to be appointed by the Governor. The task force is charged with studying various aspects of affordable housing and reporting to Governor within 90 days.

You can view a copy of the executive order here. Municipalities are constitutionally required to exercise their zoning discretion to allow for reasonable opportunities for affordable housing. Under the Fair Housing Act, COAH was created for the purpose of creating and enforcing those obligations. Unfortunately, most on all sides of the debate over affordable housing have agreed that COAH has fallen far short of it's obligations and created at least as many problems as it has opportunities. Indeed, State Senator Raymond Lesniak has introduced legislation seeking to abolish COAH and create totally new mechanisms for creation of affordable housing. Where and how this issue will end remains to be seen, but certainly the Governor and Legislature are shaking up the "house" as relates to affordable housing.

Governor Corzine To Sign Economic Stimulus Act of 2009

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This week Governor Corzine is scheduled to sign the Economic Stimulus Act of 2009. Amongst other things, the bill will exempt projects receiving preliminary approval from the municipal board by July 1, 2010 from the non-residential development, i.e., COAH, fee. The bill also has a provision for a partial refund of such COAH fees paid under bill A-500 (the 2.5%), but only gives a party 120 days from the bill's effective date to make application for the refund. The bill will also provide economic redevelopment and growth grants (ERGG) in certain areas and will expand the eligibility for Urban Transit Hubs to add a mixed-use component that can receive a tax credit.
 

Follow-Up To Senate Economic Growth Committee Approval of Bill for Conversion of Age-Restricted Communities

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On March 2, 2009 I wrote a blog discussing the Senate Economic Growth Committee's approval of a bill for conversion of Age-Restricted Communities. As expected over the past several weeks, Governor Corzine conditionally vetoed the bill providing for conversion of age-restricted residential properties (commonly referred to as the 55+ bill). The conditional veto would adopt the bill upon 2 conditions:
 

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.

New Jersey Division of Taxation Add New Regulations to Sales Tax

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Effective December 1, 2008, landscaping services, certain flooring installation services and alarm or security system installations are subject to sales tax. Sales taxes must be collected and remitted by the prime contractor or subcontractor supplying the services. Additional information about the new regulations from the New Jersey Division of Taxation can be accessed online here.

Senate Economic Growth Committee Approves Bill for Conversion of Age-Restricted Communities

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Under a bill unanimously approved by the Senate Economic Growth Committee on February 26, 2009, municipalities would be permitted to voluntarily convert age-restricted (55-plus, senior housing), approved real estate developments to non-age restricted units upon application by developers agreeing to set aside a portion of the project as affordable housing. The conversions would be subject various constraints, including time limitations to undertake the conversion (25 months from the enactment of the bill), the requirement that there are no deposits on units and no units have been conveyed, as well as various other constraints and flexibility built into the bill to accommodate the conversion without negatively impacting existing owners, contract purchasers, the municipality and community at large, as well as future non-aged restricted purchasers of units within the development. Existing age-restricted developments either completely or partially sold would not be impacted by this bill.
 


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.

Master Sponsors Credited with Historic Passage of Permit Extension Act

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Those of you in Trenton during the legislative hearings on the Permit Extension Act undoubtedly witnessed an amazing process and historic battle leading to the passage of the Permit Extension Act, and therefore know first hand just how much credit NJBA Master Sponsors deserve for industry defense and the effort put into the Permit Extension Act. To the surprise of many, one environmental lobbyist plainly declared that the proposed legislation was an all out "declaration of war" against the environment and not worthy of discussion or compromise. That mindset seemingly pervaded attempts to kill or gut the bill despite the broad understanding that the industry and the economy need immediate stimulus.

 

The contributions by Master Sponsors critically supported NJBA’s drive to promote the Permit Extension Act. Prospective Master Sponsors often ask, "why should we become Master Sponsors?" Despite the ultimate discussion about "return on investment," the direct and indirect marketing opportunities afforded to program participants and the exclusive access to industry insiders afforded to the Master Sponsors, the first reason Associate Members of the Builders Association are encouraged to join this elite program, is precisely this -- industry defense. What that means to builders, associate members of NJBA and Master Sponsors was fully on display in recent weeks.

 

First of all, any discussion of the Permit Extension Act would be remiss if we did not laud the officers and professional staff of NJBA for their masterful job in standing up for the industry, going toe to toe with powerful forces not that are not only used to getting their way, but also were intent on gutting the Permit Extension Act. While other organizations participated in the Smart Growth Economic Development Coalition, NJBA clearly took the lead in advancing the Act, providing much of the resources, informational tools and political savvy resulting in the overwhelming bipartisan passage of the Act now sitting on the Governor's desk and expected to be signed into law shortly. Despite the tremendous adversity, NJBA would not back down in their insistence on a strong industry-supported Act.

 

Master Sponsors were critical to these efforts. It easily can be said that the Act would not have been adopted, thousands of jobs not saved, and hundreds of millions of dollars invested not protected without the Master Sponsors. The biblical story of David and Goliath is notable simply because notwithstanding good intentions and a righteous cause, Davids rarely beat Goliaths without the strength and weapons necessary to do so. Master Sponsors provided those resources on various levels. Hundreds appeared at legislative hearings in Trenton when called upon to support the advancement of the Act. Not only did builders, officers and professional staff all appear in large numbers, but significantly the Master Sponsors made up much of the crowd standing behind the efforts of NJBA leadership and pressuring our State Legislators to support the Act without gutting it. The environmental lobby and their supporters, while out in numbers, did not begin to compare to the strength and numbers of NJBA supporters.

 

That Master Sponsors were out in numbers is not surprising because this elite group of industry supporters recognizes the importance of industry defense. As it has been said by many, notably Michael Kurpiel on numerous occasions, if the builders stop building today, we will be out of work tomorrow. Despite monumental opposition, we saved those jobs and opportunities! Master Sponsor's all know of the financial commitment to NJBA required to become part of this exclusive group. Revenue from the Master Sponsor program provides critical financial resources to the Builders Association necessary to allow NJBA to retain top professionals, recruit talented and resourceful officers, provide member mobilization resources (leading to those hundreds of people traveling to Trenton), and engage legal and technical expertise advancing passage of the Act, as well as many other resources. 

 

None of us need be told that these are tough times in the building industry. A few Master Sponsors who have regularly supported the program have struggled to find the resources necessary to justify remaining as Master Sponsors while other first time Master Sponsors recognize this as a critical time to defend and support the industry.

 

NJBA regularly advances opportunities for Master Sponsors because these are the elite organizations providing the resources for NJBA to protect the industry on various levels. Simply speaking, Master Sponsors deserve support not only for all they do to support the industry, but because Master Sponsors are key players providing product and services to the industry. Builders and Associate Members support and should support Master Sponsors not only for their efforts to protect the industry and save your job and mine, but because of their professionalism and extensive involvement in the industry. The next time someone asks "what do you do for me as a Master Sponsor," I encourage you to look them in the eye and proudly declare, my efforts led to the adoption of the Permit Extension Act, protections of our collective investments and literally our jobs. 

Mount Laurel Township v. MiPro Homes Petition Sent to United States Supreme Court

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As a follow up to previous posts regarding the case of Mount Laurel Township v. MiPro Homes, the Builders League of South Jersey, Inc. and MiPro Homes, L.L.C. has petitioned the United States Supreme Court to review the decision issued by the New Jersey State Supreme Court in December.

The New Jersey State Supreme Court upheld a lower court’s decision to allow ambush acquisitions stating towns and municipalities could proactively condemn property to prevent development. It is the position of the Builders League of South Jersey and others that this decision, if allowed to stand, will have a chilling effect on development in New Jersey and a negative impact on families with school children and developers of projects deemed politically undesirable.

The question raised is whether or not the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from condemning private property for “public use” when the municipality’s public use determination is ad hoc, pretextual, and not part of a comprehensive planning process.

You can download the petition here.

New Jersey Legal Update - Podcast # 53

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This week's New Jersey Legal Update podcast will discuss the landmark case of Mt. Laurel Township v. MiPro Homes. This podcast will give a brief summary of the case, and how it will impact the future of New Jersey's real estate industry.

This week's New Jersey Legal Update is presented by Gary S. Forshner, Shareholder of Stark & Stark’s Real Estate Group.

You can download the New Jersey Legal Update Podcast # 53 here.(3.3MB)

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BREAKING NEWS - NJ Supreme Court's Decision in Mt. Laurel v. MiPro

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Today, the New Jersey Supreme Court issued a decision (PDF) in Mount Laurel Township v. MiPro Homes critical to the real estate development community, municipal government, and ultimately all of the citizens of the State of New Jersey. The decision authorizes ambush or pretense acquisitions of housing for families with school children and other uses deemed to be politically or economically undesirable. Given that real estate investment, housing, and commercial development are the backbone of the economy, this decision will reverberate through the halls of the legislature and at every kitchen table in New Jersey. The State has not planned for the social and economic fallout from this decision, including the likelihood that the State's attempt to get out of the tax and financial morass that exists will be further challenged as real estate investment opportunities are minimized and lost.

For more information see our media advisory on this decision here.

Read and listen about the history of the Mt. Laurel v. MiPro case here, here, here and here (podcast).

You can read Stark & Stark's press release on the Mt. Laurel decision, which includes audio clips of Gary Forshner discussing the decision's impact here.

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"Prompt Pay" Bill

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Currently there is legislation pending in the New Jersey Legislature that will require builders to pay subcontractors upon demand or immediately instigate arbitration. These bills (A-3174/Caraballo and S-1726/Sweeney) are on a "fast track".

By way of background, this proposal provides that an invoice is automatically deemed approved and certified by an owner 10 days after the owner receives it, unless the owner disputes the amount in writing. It then requires the owner to make full payment to the contractor not more than 20 calendar days after the billing date specified in the contract. According to this proposal, all disputes regarding payment are submitted to binding arbitration.

This proposal was introduced by Senator Sweeney (D-3) in March, released from the Senate Labor Committee, and forwarded to the Senate Budget and Appropriations Committee for further review. The Assembly companion measure was introduced by Assemblyman Caraballo (D-29) earlier this month and forwarded to the Assembly Labor Committee for review.

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