Gibbons Law Alert

Gibbons Law Alert

Tagged: New Jersey

Relaxation of Notary Rules Allows Remote Notarization in New Jersey and New York

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Posted in Real Estate

On April 16, 2020

With some banks and municipal offices closed to walk-ins, non-essential employees working from home, and social distancing requirements in place, the ordinarily mundane task of having documents notarized has become much more challenging. The very act of taking an acknowledgment requires that the notary personally interact with the signatory, verify identity, and witness document execution. This, of course, is wholly inconsistent with the COVID-19 world in which we find ourselves. Although electronic (rather than pen and ink) notarization has become more common in many jurisdictions, few states permit online or webcam notarization where the person signing a document is not in the physical presence of the notary. As a result of COVID-19, the rules have been relaxed in New Jersey and New York in order to permit video notarization in some instances. New Jersey New Jersey is utilizing a legislative process to amend the Notaries Public Act of 1979 (the “Act”). A bill designated as A-3903 was signed into law on April 14, 2020, as P.L. 2020, ch. 26. It takes effect immediately and will remain in effect for the duration of the COVID-19 emergency as declared by the Governor in Executive Order 103. It provides that a notary appointed pursuant to the provisions of the Act or an officer authorized to take oaths, affirmations,...

U.S. EPA and New York ESD Provide Updated Guidance Regarding Environmental Work Permitted for During COVID-19 Pandemic

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Posted in Development/Redevelopment / Environmental and Green Issues

On April 16, 2020

Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...

NJABC Relaxes Additional Regulations in Response to COVID-19 Crisis

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Posted in Liquor Licensing

On April 13, 2020

On April 7, 2020, we published a blog explaining the guidance and forms of relief recently provided by the New Jersey Division of Alcoholic Beverage Control (“Division”) to liquor license holders throughout the state. The issued guidance and relief pertain to operations of alcoholic beverage licensees and permittees during the state of emergency declared to address the COVID-19 crisis. Since that time, the Division has issued three new special rulings to address additional COVID-19 related issues. Each special ruling is summarized briefly below. Special Ruling Granting Relaxation of Signature Requirement, Product Returns, Credit, Notices of Obligation, and Bill and Hold This special ruling grants relaxation of several regulations promulgated under the Alcoholic Beverage Control Act (the “Act”), as well as under a previous special ruling. Signature on Invoices: To comply with social distancing protocols, the Division temporarily suspended the requirement that a licensee must sign and date a delivery slip, invoice, manifest, waybill, or similar document at the time of delivery of any alcoholic beverage by a licensed manufacturer, importer, or wholesaler. It sets forth acceptable alternative methods for signature, which includes methods like sending a contemporaneous email confirming receipt, photographing the invoice and confirming electronically with the wholesaler, or using the retailer’s own pen to acknowledge receipt. This modification runs through the period of...

SCOTUS Provides Clarity to Charterers in Oil Spill Case and All Parties Subject to OPA Should Take Note

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Posted in Environmental and Green Issues

On April 13, 2020

On March 30, 2020, the U.S. Supreme Court issued a decision that will directly affect those in the maritime charter industry, and may ripple out to anyone performing a cleanup or defending a claim under the Oil Pollution Act (OPA). The case began with a 1,900-mile voyage by the M/T Athos I, which was a 748-foot single-hulled oil tanker, from Venezuela to Paulsboro, New Jersey in November 2004. Only 900 feet from the ship’s intended destination, it struck a nine ton anchor that was abandoned in the Delaware River. The anchor pierced the hull of the vessel and caused over 250,000 gallons of crude oil to spill into the river, which resulted in a $133 million cleanup. Frescati Shipping Company, the owner of the ship, together with the United States, paid for the cleanup as required under OPA, and then sought its cleanup costs from the charterer, CITGO Asphalt Refining Company (“CARCO”). The question before the High Court was “whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO’s diligence in selecting the berth.” Frescati and the U.S. argued that CARCO breached the charter-contract’s “safe-berth” clause, which obligated CARCO to designate a safe-berth where the ship would be able to come and go “always safely afloat.” CARCO,...

A Refinery Is Not a Gas Station: N.J. Court Says Former Oil Operation Was Abnormally Dangerous Activity

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Posted in Environmental and Green Issues

On April 9, 2020

The 1976 Spill Compensation and Control Act (“Spill Act”) gave New Jersey a wide variety of new powers to address, and seek reimbursement for, environmental contamination. Despite its broad new remedies, however, it did not pre-empt or “subsume” common-law theories such as strict liability for abnormally dangerous activities. Moreover, the historical operations at an oil refinery and terminal that resulted in substantial discharges and pollution of nearby waterways could constitute an abnormally dangerous activity. So held the Appellate Division in its recent opinion in New Jersey Department of Environmental Protection v. Hess Corporation. Hess involves a property in the Port Reading section of Woodbridge historically operated as an oil refinery and terminal. In its 2018 complaint against Hess (which developed the property in 1958 when it was known as Amerada Hess Corporation) and Buckeye Partners, LP (which acquired the property from Hess in 2013), the New Jersey Department of Environmental Protection (NJDEP) alleged discharges of oil affecting the nearby Smith Creek and Arthur Kill during Hess’s period of ownership.  The NJDEP asserted claims under the Spill Act, the Water Pollution Control Act, strict liability, trespass, and public nuisance, seeking both injunctive relief and money damages in connection with the defendants’ failure to assess injuries to natural resources and to restore the injured resources. Hess and Buckeye...

New Jersey Issues Guidance to Assist Land Use Boards in Holding Electronic Meetings and Hearings

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Posted in Development/Redevelopment

On April 6, 2020

In the wake of Executive Order 103 declaring the COVID-19 public health emergency and Executive Order 107 concerning restrictions on public gatherings, most planning boards and zoning boards of adjustment in New Jersey cancelled their scheduled meetings and have since been evaluating how to resume meeting in a manner that complies with social distancing requirements and Executive Order 107. This has left applicants uncertain when and in what manner their applications for development will be considered and decided. Following enactment of emergency legislation to facilitate the conduct of electronic meetings, the New Jersey Department of Community Affairs, Division of Local Government Services, has issued guidance to specifically assist planning boards and zoning boards of adjustment with conducting public hearings electronically on applications for development. The guidance, titled “Planning Board and Zoning Board of Adjustments Operational Guidance – COVID-19: N.J.S.A. 40:55D-1, Recommendations for Land Use Public Meetings in New Jersey,” is a first step in assisting land use boards – some of which have been hesitant to begin holding “virtual” meetings – with the mechanics of arranging for and conducting electronic meetings and public hearings. The Municipal Land Use Law (MLUL) requires land use boards to hold meetings at least monthly. Such boards must meet as scheduled unless there is a lack of applications for development to...

Is Your Property Historic? You Might Not Think So, But Always Check!

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Posted in Development/Redevelopment

On March 30, 2020

In a state like New Jersey, land in urban or developed areas is often at a premium, and developers will need to be mindful of whether the property has any historical significance. In addition to the standard approvals required from local planning or zoning boards, one approval that is commonly overlooked is that of the local historic preservation office or commission. These entities are authorized under the Municipal Land Use Law, N.J.S.A. 40:55D-107 et seq., and are now common in municipalities large and small throughout New Jersey. Where a formal commission exists, applications for development are to be referred to the historic preservation commission for review whenever applications involve property in historic districts or on historic sites identified by the official map or master plan. In other municipalities, there may be an application and approval process separate from the typical land development board. Some are required as part of completeness obligations for applications for development, where others are a separate process from the typical application for development. One active historic preservation commission has been the City of Newark’s Landmarks and Historic Preservation Commission (the “Commission”). This article provides a brief primer on when Commission approval is required, and what developers can expect during the application and approval process in the City of Newark (“the City”)....

Environmental Obligations for Businesses in New York During the Coronavirus Pandemic

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Posted in Environmental and Green Issues

On March 24, 2020

The pandemic caused by the novel coronavirus, or COVID-19, has slowed business—and activity in general in many areas of the United States—to a crawl. New York State is one of the places hit hardest by this pandemic. Indeed, at the time of this writing, New York has the highest number of confirmed COVID-19 cases in the country. Unfortunately, the spread of the virus shows no signs of relenting. Nonetheless, manufacturing, the real estate industry, and other regulated businesses continue to face environmental reporting obligations, regulatory deadlines, and potential penalties for non-compliance. Businesses and other property owners are dealing with remediation deadlines, as well as operation and maintenance obligations of environmental controls. Businesses are also rightly concerned about reporting requirements under various permits, including under such federal permitting programs as the Resource Conservation and Recovery Act and others. Meeting these obligations has become significantly complicated by the pandemic and the ancillary issues it has brought on, such as the illness of key personnel, inaccessible facilities, and other impediments. On March 20, 2020, Governor Andrew Cuomo signed Executive Order 202.8, which directs that all “non-essential” businesses implement remote work policies for 100 percent of their respective workforces, effective March 22 through April 19, 2020. The Executive Order further states that businesses that provide “essential services or functions...

Appellate Division Underscores Need for Findings, and Potentially More Testimony, to Approve Reduction of Variance

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Posted in Development/Redevelopment

On March 23, 2020

It’s a common scenario: after a series of public hearings, the scope of variance relief sought is reduced by the applicant or at the direction of the board, and the board then approves the application. A recent unreported opinion from New Jersey’s Appellate Division underscores that the resolution of approval must explain how and why the reduced scope of relief satisfies the variance criteria when the original proposal did not. This may require presentation of additional testimony by the applicant in support of the modifications. In 440 Company-Carriage House, LP v. Zoning Bd. of Adjustment for the Borough of Palisades Park, the Zoning Board of Adjustment for the Borough of Palisades Park (“Board”) granted three use variances (along with final site plan approval and certain bulk variance relief) to enable the construction of a 14-story, 121-unit, residential building. The relief granted by the Board represented a substantial reduction from what the applicant-developer had actually sought and presented testimony in support of over the course of a public hearing which extended for nine meetings. The developer had originally applied for use variances to permit a 17-story building, with 154 units. Rather than approving the project as presented, or denying it, the Board, acting on its own, voted to grant the variances with a reduction from 17...

Non-Residential Development Fees – How Much Do I Pay and When?

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Posted in Development/Redevelopment

On March 17, 2020

The Statewide Non-Residential Development Fee Act (the “Act”) has been in full effect for the past three years. Yet, there remains confusion as to how the fee is calculated and when it is required to be paid. There shouldn’t be. Before the Act, both residential and non-residential development fees were governed by the Council on Affordable Housing’s (“COAH”) regulations, and municipalities adopted a form ordinance provided by COAH. COAH’s regulations, for instance, permitted all development fees to be collected with up to 50% due at the issuance of a building permit and 50% due at the issuance of a certificate of occupancy. The same regulations permitted municipalities to collect the full fee at the issuance of a certificate of occupancy. The current Act makes it crystal clear that “the payment of non-residential development fees … shall be made prior to the issuance of a certificate of occupancy for each development.” The Act also lays out a process for preliminary and final assessments of fees, including a notice required upon issuance of a construction permit to the tax assessor to conduct an initial evaluation of the fee. Thus, any requirement for the payment of a development fee as a condition of the issuance of a construction permit would be inconsistent with the Act. The Act provides...

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