SteveK November 18th, 2009

In Beverly Square Association, Inc. vs. Zoning Board of Adjust of the City of Trenton et al., the New Jersey Appellate Division held that a property owner, applicant for permit to renovate a prior non-conforming use, has the ultimate burden of proof that the prior use had not been abandoned. In the case, the defendant was issued a permit to renovate 20 residential apartments deemed by the Trenton zoning officer to be a preexisting non-conforming use.  Beverly Square Association appealed the decision to the Trenton Zoning Board of Adjustment, arguing that the defendant’s nonconforming use had been abandoned (i) after a tax foreclosure on the property, and (ii) as a result of the 18-month vacancy and state of disrepair. The Board affirmed the decision of the zoning officer, which was appealed to the Superior Court. The Court reversed finding that the property owner failed to prove that the use had not been abandoned.

 The Appellate Court determined that the objector must initially come forward with sufficient evidence of temporal or physical abandonment; however the property owner had the ultimate burden of proof as to the intent to resume the prior non-conforming use of the property within the 18-month period provided in the municipal ordinance. The Court remanded the case to trial court for the matter to be considered in with the clarification on the burden of proof.

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 zoning, land use and local government matters. For additional information about the matters in this bulletin or in the firm’s land use, zoning and municipal please contact Jeffrey B. Lehrer, Esq.

Tags: Land Use Law, Local Government Law

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SteveK November 13th, 2009

The NJDEP has recently issued documents to provide direction and guidance for remediation of contaminated sites by Licensed Site Remediation Professionals (LSRPs) including Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) Rules and the Guidance for the Issuance of Response Action Outcomes (RAO) under Site Remediation Reform Act, N.J.S.A. 58:10C-1 et seq. (summarized in a prior posting NJ Governor signs law addressing remediation of contaminated properties ). The Guidance for Issuance of the RAO provides direction to the regulated public and the LSRPs in the structure and requirements for the appropriate issuance of an RAO, which, in essence, replaces the No Further Action letter (NFA).  Under the SRRA an RAO constitutes the LSRP’s professional opinion that there are either a) no longer discharged hazardous substances or wastes present at the site or in the area that requires remediation (area of concern or AOC), or b) that are no discharged contaminants at the site, AOC, or migrating from the site above the regulatory limits for such substances, and the remedial action taken was “protective of public health, safety and the environment.” 

The two primary factors to determine which RAO is to be issued:

The scope of the remediation: whether the remediation will involve the entire site or just particular areas of concern; and

Whether the remedy will involve institutional or engineering controls.

The Guidance suggests that reporting obligations can be streamlined when the scope of the remediation involves the entire site as opposed to submissions on each AOC.  Institutional controls can be employed where they “protect the public health and safety and the environment.”  The LSRP is to designate each RAO according to the following categories:

An Unrestricted Use RAO: where there are no contaminants found or where all contaminants are remediated to the most stringent standards.

A Limited Use RAO: where a) the soil is remediated at a non-residential site to the more restrictive standard of either non-residential direct contact or the impact to ground water soil standard, and there is a remedial action permit issued by the NJDEP for a deed notice, or b) contaminants exist above applicable remediation standards for ground water, no engineering controls are employed, and the NJDEP has issued a ground water remedial action permit.

A Restricted RAO: where an engineering control, in combination with an institutional control, has been issued by the NJDEP to ensure that the remedy will provide protection for the long-term.

The Guidance sets forth when it is appropriate for an LSRP to issue an RAO, including when contaminants remain on site. The NJDEP identifies 9 scenarios where it is permissible to issue an RAO when contaminants remain on site.  Some the scenarios include: where the contamination is migrating onto the subject property and the actions on the site did not contribute to the contamination; where there are naturally occurring contaminants; where contamination has been remediated and a remedial action permit with engineering controls has been issued; where groundwater contamination is found on-site that has not triggered a ground water remedial investigation and has not otherwise been investigated; where the remediation has been completed under an approved RAW but the standards have changed in the interim.  RAOs involving ground water remedies can be issued where the ground water is remediated to Ground Water Remediation Standards, which allows an unrestricted RAO; where ground water remains above the Standards where a limited use restriction is employed (which requires that the LSRP demonstrate a decreasing trend of contaminants), or that contaminants remain above Standards due to the technical impracticability of achieving the Standards (requiring engineering controls and remedial action permit.)

The Guidance includes a shell RAO to be followed by the LSRP. The shell document presents language to be used by the LSRP for the various remedial options.  The LSRP is prohibited from modifying the language of the shell RAO unless specifically permitted by the Guidance.

The regulated community, their counsel and consultants have been eagerly awaiting direction from the NJDEP on the new program with the hope that the process will be more efficient, that site closure can be effectuated more quickly and that the costs will also be decreased without compromising the health and safety of the public and the environment. The Rules and Guidance documents that have been issued have begun to provide the framework for the new program; hopefully the expectations of the public will be realized.

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.

Tags: Environmental Law

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SteveK November 11th, 2009

In Kanafani v. Lucent Technologies, plaintiff, a former employee of a subsidiary of Lucent Technologies, asserted violations of the New Jersey Conscientious Employee Protection Act (CEPA), in addition to claims pursuant to the New Jersey Wage and Hour Law. Plaintiff’s whistleblower claims were based on both his initial June 2006 termination and the decision of defendant not to rehire him in September 2006. Two months prior to his termination, plaintiff sent an email to Lucent executive outlining what he saw as an improper inflation of reported revenues and violations of the Foreign Corrupt Practices Act in connection with sales efforts in the United Arab Emirates. After  the close of discovery, Defendants sought dismissal of all claims. The District Court dismissed plaintiff’s the Wage and Hour Law violation clams, as well as all claims related to the September 2006 refusal to rehire; the did not dismiss the claims related to the June 2006 termination.

One of the primary arguments presented by Lucent related to a release that was entered into by the plaintiff upon termination, which defendant argued barred the claims.

The Court rejected defendant’s argument regarding the absence of a causal nexus between the activity and the termination, finding questions of fact required a trial.  In addition, the Court noted that the language in the release that plaintiff had “no further rights or claims to any past or future payments or reimbursements from the Company” was not an unambiguous waiver of his rights under CEPA, and that this ambiguity should be read against the Defendants and would be subject to further consideration at trial. The ruling is consistent with other decisions in New Jersey that requires any release of certain forms of claims should be specified.

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.

Tags: Environmental Law

• Employment Law
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SteveK November 11th, 2009

On November 4, 2009, in Taylor v. Amcor Flexibles, Inc., the United States District Court, dismissed the claim of a plaintiff asserting that the disclosure of negative employment evaluations to a prospective employer is not inherently discriminatory.

Plaintiff Alonzo Taylor, an African American, began his employment with defendant Amcor Flexibles in early 2005. By November of that year, defendant became displeased with plaintiff’s performance and placed him on a Performance Improvement Plan. After his performance failed to improve, plaintiff was terminated. Over a year later, defendants responded to an inquiry from a prospective employer for the plaintiff indicating that he was released for performance issues. Plaintiff thereafter filed suit for racial discrimination pursuant to Title VII, the New Jersey Law Against Discrimination (NJLAD) and for retaliation under the Conscientious Employee Protection Act (CEPA), as well as common law defamation. The Court employed the McDonnell-Douglas test and concluded  that although plaintiff made out a prima facie case of discrimination, defendant was able to articulate a nondiscriminatory reason for dismissal. The Court stated that it did not wish to second guess that criteria used to evaluate employees, absent a showing that the criteria utilized was inherently discriminatory. The Court, therefore, granted Summary Judgment to the defendant.

 Finally, although defendants did release unfavorable information regarding plaintiff to a possible subsequent employer, the Court found that since plaintiff signed an authorization for the release of the information, the qualified privilege of course of legitimate business functions attached. The Court therefore dismissed plaintiff’s defamation claims.

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.

Tags: Employment Law

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