Gibbons Law Alert
On Tuesday, October 5, 2010, at 6:00 pm, the Gibbons Institute of Law, Science & Technology and the New Jersey Intellectual Property Law Association (NJIPLA) will host the 8th Annual Fall Lecture Series, “Inventing Our Way Out of Joblessness,” featuring The Honorable Paul R. Michel, Former Chief Judge of the U.S. Court of Appeals for the Federal Circuit.
With energy costs high and the focus on combating global warming, there is an impetus toward encouraging the development of Green Buildings. Buildings account for 39% of the total energy usage in the U.S., two thirds of the electricity consumption and 1/8 of the water usage. Building codes, setting minimum standards for construction, now include standards for energy efficiency. Green Codes are creeping in.
If you are a NJ-based entity, do you have a power plant in the works? Are you thinking about a Combined Heat and Power (CHP) plant? If so, the New Jersey Economic Development Authority (NJEDA) has a grant for you if you act with alacrity. October 4, 2010, at 5:00 pm is the deadline for submitting an online solicitation for the competitive CHP grants. Grants are available for $450 per kW up to a maximum of $5 million per plant. All forms are available online.
On September 8, 2010, New York City Mayor Michael Bloomberg signed a new law that will require owners of multiple dwellings to provide the New York City Department of Housing Preservation & Development (HPD) with their names, business and residential addresses and telephone numbers on an annual basis. The law also requires all shareholders who hold at least 25% of a corporation, partnership or limited liability company to comply with the disclosure requirements as well. Finally, the law mandates that a U.S. postal service mail box can not be used as a valid address.
More than 500 business owners, senior executives and industry representatives throughout the state attended a conference on August 19, sponsored by Gibbons P.C. and EisnerAmper LLP – Solar Energy for New Jersey Businesses, Developing & Financing Your Own On-Site Solar Facility – at the Woodbridge Hilton in Iselin, NJ.
In the most recent case decided in New Jersey on the issue of the adequacy of a land use public notice, the court continued the trend of requiring applicants on development applications to put as much information in their notices as possible to make the general public aware of the nature of the matter under consideration. In Neshanic Coalition for Historic Preservation v. Hillsborough Township Planning Board, Judge Buchsbaum ruled that the applicant’s public notice failed to meet the statutory requirement of setting forth the “nature of the matters to be considered” under the New Jersey Municipal Land Use Law because it omitted the fact that the building to be demolished was located in an historic district.
It has been almost two decades since the last edition of the State Environmental Quality Review Act (SEQR) Handbook was released by the New York State Department of Environmental Conservation’s (NYSDEC) Division of Environmental Permits. Despite significant amendments to the SEQR regulations, 6 NYCRR Part 617 in January 1996 and tens of hundreds of cases of distinction on SEQR substance and procedure, many land use and environmental practitioners have been left to fend for themselves without up-to-date technical regulatory guidance from NYSDEC until now.
On August 5, 2010, the Second Circuit issued an important decision affecting a brand owner’s ability to establish personal jurisdiction against out-of-state defendants involved in the online sale of counterfeit goods. In Chloe v. Queen Bee of Beverly Hills, LLC, the Second Circuit vacated a Southern District of New York (“SDNY”) decision dismissing an anti-counterfeiting case for lack of personal jurisdiction. See Chloe v. Queen Bee of Beverly Hills, LLC, 571 F. Supp. 2d 518 (S.D.N.Y. 2008) (hereafter “District Court op.”), vacated and remanded, 2010 U.S. App. LEXIS 16192 (2d Cir. 2010) (hereafter “Second Circuit op.”).
The New Jersey State Comptroller released a report Wednesday entitled “A Programmatic Examination of Municipal Tax Abatements.” The Comptroller’s report is critical of both five year abatements and long term abatements granted by municipalities and was being widely reported in the press yesterday. Referring to five year abatements (NJSA 40A-21-1 et seq.) and long term abatements (NJSA 40A-20-1 et seq.), the Comptroller’s report finds “numerous weaknesses in the regulation, implementation and oversight of these programs” including: PILOTs paid to municipalities are at the expense of counties, school districts and other taxpayers; there is lack of transparency and centralization of information about abatement agreements; criteria and processes for evaluating potential abatement agreements are weak; directly affected stakeholders are not adequately involved in the decision making process; municipal follow up on abatement terms and benefits is lacking; redevelopment areas in which abatements are granted are not periodically reviewed to account for neighborhood changes or improvement; municipalities often fail to use abatements to bring in the type of redevelopment that would address community needs or bring appropriate improvement; and the State does not closely monitor the use of abatements or offer significant guidance to municipalities on how to interpret relevant statutes or implement abatement programs.
Despite potential substantive merit to Plaintiffs’ federal and state constitutional claims, the Federal District Court of the Northern District of New York in Rivendell Winery LLC v. Town of New Paltz dismissed Plaintiffs’ complaint for lack of subject matter jurisdiction on ripeness grounds as a result of the Plaintiffs’ failure to either obtain a final variance decision or to satisfy the relatively high burden for showing that an application for a variance from the Zoning Board of Appeals would have been futile. The crux of the decision lies in the Court’s reiteration of an important principle that although the success of a land use application may seem doubtful, doubt alone is insufficient to establish that the decision maker has dug in its heels and made certain that the application will be denied.