Archive for October, 2009

The Deadline for filing tax appeals applies to a Challenge to a Partial Reassessment. Condo Association cannot file a tax appeal on behalf of its member owners.

SteveK October 29th, 2009

In Bear’s Nest Condominium Association v. Bergen County Board of Taxation, the Tax Court ruled that an appeal to contest the partial reassessment of properties in a municipality must comply with the statute of limitations for filing any tax appeal. That is, the appeal must be filed within 45 days of the taxpayer receiving notice of a change in assessment or by April 1st, whichever date is later. In this instance, the appeal was filed beyond the deadline and was dismissed. The Plaintiff in this case was the condominium association and not the taxpayers. The Court therefore also addressed the issue of standing in dicta, stating, “…there is no authority for associational standing or for class actions to contest tax assessments in bulk.” The plaintiff, a condominium association, therefore did not have standing to contest the assessments.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq. 

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Tax appeal may proceed even though Owner has delinquent taxes on another property.

SteveK October 29th, 2009

In John Trebour Trustees v. Randolph Township, the Tax Court denied a municipality’s motion to dismiss a tax appeal because the taxpayer owed taxes on a property that was no longer the subject matter of the tax appeal. This was a case of first impression by the Court. The taxpayer filed a complaint contesting its assessments on two lots. The taxpayer failed to pay the requisite taxes through the first quarter of the year under appeal on one of the lots. The taxpayer withdrew its appeal on the lot with delinquent taxes, but proceeded with its appeal on the remaining lot on which taxes had been paid. The Tax Court ruled that the taxpayer is only required to pay the taxes on the lot under appeal. Real estate taxes are not personal to the owner – - they relate to the property and therefore a taxpayer can proceed with a tax appeal on a property with taxes paid through the first quarter of the year under appeal, even if the same person owns other properties with delinquent taxes. 

 We have successfully argued for dismissal of cases where other fees and charges (e.g., developers’ fees, building permit charges, land development escrow deficiencies) are due from a taxpayer, through the first quarter of the year, on the property which is the subject of the appeal.  The decision of the court does not appear to reach a contrary result, so long as the delinquent fees or charges relate to the property under appeal.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq. 

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NJ Appellate Division rules on Farm Bureau’s challenges to re-adopted regulations to Water Supply Management Act.

SteveK October 26th, 2009

On October 21, 2009, the New Jersey Appellate Division rule on the NJDEP’s re-adoption of rules under the Water Supply Management Act in the case of In re Agricultural, Acquacultural, and Horticultural Water Usage Certification Rules, N.J.A.C. 7:20A-1.1. Et. Seq.. The Bureau challenged many aspects of the re-adopted regulations that implement and enforce the Act. The Court upheld the validity of most of the regulations which had been challenged; however, invalidated certain provisions as being ultra vires. Some of the significant determinations included that one provision of regulations was determined to have inappropriately changed the role of the county agent from a person who makes decisions on applications to one who is only consulted by the department in making decisions. This change was found to be contrary to the specific provisions of the enabling statute and, therefore, was stricken. Another provision which the Court concluded could be read to authorize a permitted water user to to be required to mitigate adverse effects of their permitted use on others to be ultra vires as being too broad and beyond the scope of the Department’s statutory mandate. The Court required this regulation to be rewritten. The Court noted, however, that they do not intend this ruling to mean that the holder of an agricultural certification would be immune from liability under common law or specific statutory based remedies. The portion of the regulations which were in contradiction to the Wetlands Act and its regulations was also voided as being outside the specific legislative authority of the Water Planning Act.

 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental Department.

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‘The Right to Privacy Versus the Right to Access Public Records

SteveK October 21st, 2009

In the recent article published in New Jersey Municipalities magazine entitled ‘The Right to Privacy Versus the Right to Access Public Records,” Todd Ruback, Esq. discusses the recent decision of the New Jersey Supreme Court that provides guidance to local governments on how to balance a citizen’s right to privacy with requests for documents under the Open Public Records Act (OPRA). Mr. Ruback concludes that the Court may have created an implied right to privacy under the New Jersey State Constitution.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in technology and privacy matters. For additional information about the matters in this bulletin or in the technology and privacy practive group, please contact Todd Ruback Esq.

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Tax Appeal Strategies in a Real Estate Down-turn

SteveK October 21st, 2009

In the recent article published in New Jersey Municipalities magazine entitled “Tax Appeal Strategies in a Real Estate Down-turn,” Martin Allen, Esq. discusses the issues faced by municipalities in tax appeals now that the real estate bubble has burst. Local governments in New Jersey generate most of their revenue from real estate taxation. In a distressed market, towns must address new concerns in the areas of budgeting, bonding and the defense of assessments. In this article, Mr. Allen sets out to introduce some of the solutions. These issues will be further examined by him as a member of the panel at the Joint Session of The New Jersey State League of Municipalities, the Association of Municipal Assessors and the New Jersey Institute of Local Government Attorneys, entitled, “Tax Appeals in a Real Estate Recession – Strategies for Defending the Tax Base without Wiping Out your Budget” scheduled for Thursday, November 19, 2009 at 10:45 in the morning at the Atlantic City Convention Center.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in real estate tax appeals. For additional information about the matters in this bulletin or in the firm’s real estate tax appeal group, please contact Martin Allen, Esq. 

EPA evaluating revised Preliminary Remediation Goals (PRGs) for Dioxin

SteveK October 20th, 2009

In May of 2009 the EPA Administrator, Lisa P. Jackson, determined that the agency should reassess the risks presented from human exposure to dioxin. This assessment is planned to be completed by the end of 2010. The Office of Solid Waste Emergency Response (OSWER) will be reviewing the current dioxin cleanup guidance which was developed in 1985 in light of current scientific knowledge with the goal to develop interim PRGs with a full review, including public comment. The interim PRGs will be based upon a review of current soil cleanup levels and toxicity values use by the states, the Agency for Toxic Substances and Disease Registry, as well as standards developed in other countries. The OSWER will give consideration to the currently recommended PRGs for Superfund, Federal Facilities, Brownfields and RCRA sites which are 1ppb for residential soil and in the range of 5ppb to 20 ppb in commercial/industrial soil where exposure is due to direct contact. The interim PRGs are intended to be used to evaluate pending cleanup decisions although they will not necessarily be employed as site specific clean-up levels. The PRG levels will be considered as a starting point for sites, but site specific factors, such as exposure frequency or acceptable cancer risk, will be taken into account to develop the site’s baseline risk assessment. The current schedule for the development of the interim recommended PRGs includes the opening of a public comment period this month, October 2009, with the interim recommended PRGs available for public comment in the Federal Register on December 31, 2009. The public comment period is to end in February 2010 and the guidance is to be issued in June 2010 depending on the extent of public comments received.

More information can be found at :www.epa.gov/superfund/policy/remedy/sfremedy/remedies/dioxininterimplan.html

 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contact Steven A. Kunzman, Esq. who heads our Environmental Department. 

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NJ Supreme Court Rejects Award of Counsel Fees to Employer in CEPA Case

SteveK October 19th, 2009

On October 15, 2009, the New Jersey Supreme Court broke new ground in Best v. C&M Door Controls, Inc. holding that a Defendant, employer is never entitled to an award of counsel fees pursuant to the “offer of judgment rules” in a case involving either the Conscientious Employer Protection Act (CEPA) or the Prevailing Wage Act (PWA), two New Jersey statutes protecting employees from retaliation if they engage in certain defined protected activity.

 

Plaintiff, Thomas Best sued his former employer, C&M Door Controls, for violations of the PWA and CEPA, claiming that he was underpaid for certain work covered by the PWA and  that when he complained his employer retaliated.  At some time prior to trial Best made an offer of Judgment, which included fees and costs, in the amount of $100,000; the defendants made counter offers of judgment in the amounts of $15,000 and $25,000 for the respective claims. All offers were rejected. The trial resulted in a defense verdict on the CEPA claim and a jury award of $2600 on the PWA claim.  Plaintiff applied to recover fees pursuant to the fee shifting provisions of the PWA in the amount of $122,000.

 

 The trial court granted plaintiff fees, but reduced the fee award by 40% based on plaintiff’s “limited success” and also awarded fees to the employer on the failed CEPA claim in accordance with the offer of Judgment rule. The Appellate Division affirmed the fees awarded to the defendants; however, the Supreme Court reversed. The Supreme Court held that a trial judge might consider the offer of judgment made by the employer and unjustifiably rejected by the plaintiff in determining the amount of fees to be awarded to a prevailing plaintiff, if “under all the circumstances” the offer of judgment was reasonable.  The Court ruled, however, that there is no basis to shift the fees to a defendant in such a case.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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Claims Investigator’s Report Not Protected by Work-Product Doctrine

SteveK October 19th, 2009

On October 7, 2009, in the case of American Home Assurance Company v. United States Magistrate Judge Falk ,in the District Court of New Jersey, ruled that a report of an accident prepared by an investigator was not protected by the work product doctrine even though attorneys for the insurer were also present. The issue arose in a subrogation claim asserted by American Home against the U.S. arising from a collision between an aircraft that American Home insured and a paving roller on the runway at the Teterboro Airport. American Home dispatched an investigator immediately after the accident. At the same time counsel for the insurer also went to the site of the accident. While at the scene, counsel requested the investigator to send them the report.  During the course of the subrogation claim, the U.S. sought disclosure of the report. After an in camera review, Magistrate Judge Falk ruled that the document was to be disclosed. Te Judge reasoned that the report was not prepared in anticipation of litigation, but in the course of the usual routine of the business of insurance claims.  Even though a subrogation claim was always a possibility, the Court determined that the investigation was the ordinary course of business and, therefore, did not create a basis to protect the document from disclosure. Further, since the investigator was not hired by counsel, but by the insurer in accordance with the usual process, the presence of the attorney, or the request that the report be sent to the attorney, did not alter the character of the report. Finally, the Court noted that the report could not be considered to be in anticipation of litigation where the report itself states that the subrogation claim was “to be determined.” The Court stated that work-product protection is not ordinarily afforded to a document prepared prior to the decision regarding whether a subrogation claim will exist. This further demonstrated to the Court that the report was done in the ordinary course of business. This decision provides some guidance in what can be done to attempt to protect such reports from disclosure, or the need of the investigator to consider the content of report since it is subject o disclosure in discovery.

 

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC ( http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of insurance companies in coverage matters. For additional information about the matters in this bulletin or in the firm’s Insurance Coverage Practice, please contact Steven A. Kunzman, Esq.