Gibbons Law Alert
Last week, Governor Rendell signed the Permit Extension Act (“Act”) into law as part of the approval of the budget, breathing life into expired and expiring permits and the development projects they represent. The Act, found at pages 99-110 of the budget bill, extends the expiration date of many governmental approvals, permits and agreements, including building permits and construction permits, relating to construction and development projects.
This summer, the long shadow cast by the oil rig blow-out in the Gulf of Mexico seems to be everywhere. For example, we recently reported that EPA has written to Congress endorsing the concept of reinstating the Superfund tax which expired back in 1995. Thus, it was only a matter of time before New Jersey got into the act. On July 15, 2010, the Senate Environment and Energy Committee in Trenton took up S-2108. If adopted in its present form this bill would raise the limit on liability pursuant to the New Jersey Spill Compensation and Control Act from $50 million to $1 billion.
Agreements for the sale of real property are commonly contingent upon the contract purchaser’s obtaining some sort of development approval. If the approval is not granted, the contract purchaser can walk away from the deal. But what if the landowner wants to challenge the denial? Does the landowner have a sufficient interest in the dispute to step into the contract purchaser’s shoes? Last month, the Appellate Division of the New Jersey Superior Court answered in the affirmative. In Campus Associates, L.L.C. v. Zoning Board of Adjustment of the Township of Hillsborough, No. A-0690-08T2, — N.J. Super. — (App. Div. June 4, 2010), the court held that a landowner can appeal the denial of a use variance that was sought by a contract purchaser, as long as the application depended on property-specific proofs, and not on factors unique to the applicant.
The Gibbons Institute of Law, Science & Technology hosted a webinar on July 1 to discuss the U.S. Supreme Court decision in Bilski v. Kappos that addressed the limitations on the patentability of business methods. More than 50 people listened to this webinar, which featured Erik Lillquist, Senior Associate Dean and Professor of Law, Seton Hall University School of Law; Robert E. Rudnick, Director, Intellectual Property, Gibbons P.C., and David W. Opderbeck, Associate Professor of Law and Director, Gibbons Institute of Law, Science & Technology, Seton Hall University School of Law.
FASB has proposed rules that, if enacted, would eliminate the distinction between operating and capital leases. Jonathan Hipp, President and CEO of Calkain Companies, Inc. writes in GlobeSt.com that the economics of transactions won’t change and questions the real impact of the proposed change in accounting rules that will require sale leasebacks to be moved from footnotes to the balance sheet because analysts who follow companies with sale leasebacks “have already baked the operating leases into the debt load of the companies.”
On June 21, 2010, EPA sent a letter to Congress supporting the reinstatement of the Superfund tax which expired on December 31, 1995. EPA believes that the tax will provide a “stable, dedicated source of revenue . . . and increase the pace of Superfund cleanup.” According to EPA, it would also ensure that the parties who manufactured or sold the substances that are being cleaned-up at hazardous waste sites – and not the taxpayers – would bear the cost of cleanup when responsible parties cannot be identified. EPA states that the taxes are needed to ensure that the “polluter pays” for the Superfund program.
On July 6, 2010, the USEPA proposed a new interstate transport of ozone and fine particulate rule for power plants. The goal of the rule is to achieve by 2014 a 72% reduction of sulfur dioxide (SO2) and a 54% reduction of oxides of nitrogen (NOx) from 2005 levels. The tri state area, like most of the states east of the Mississippi, is covered by this rule for both fine particulates and ozone. The sulfur and nitrogen oxides are fine particulates in the air.
The United States Patent and Trademark Office (USPTO), in an attempt to offer patent applicants more choices, recently proposed establishing a three-tiered examination system. Under the current system, with the exception of accelerated examination and those cases granted “special” status, all non-provisional patent applications go into the same queue for examination and are taken up in due course. Under the new proposal, an applicant would be able to choose either prioritized examination (Tier I), traditional examination (Tier II) or delayed examination (Tier III).
A long time in coming, but certainly below the radar screen, is the implementation of the EPA rule issued in 2008 requiring contractors engaged in renovations to be certified in handling lead based paint that may be present in homes, child care facilities and schools built before 1978. Certainly many of the buildings built before that time may well have lead based paint in them since it was not specifically prohibited until that date. However, many manufacturers moved long before 1978 to remove lead from their paint.
An amendment to the Municipal Land Use Law (MLUL) which Governor Christie signed into law on May 4, 2010, will protect developers from municipal zone changes that are rushed through, often as a result of public opposition, to thwart a specific development proposal. Under the new law, which takes effect in one year, the development regulations which apply to a project would be those in effect on the date the application is filed with the municipal land use board.