SteveK February 24th, 2010

On January 19, the District Court in the Northern District of Texas ruled in American International Surplus Lines Insurance Co. v. 7-Eleven that the determination of whether there is an “imminent and substantial endangerment to human health or the environment” sufficient to sustain a private cost recovery claim under the Resource Conservation and Recovery Act (RCRA) is determined at the time the suit is commenced, not after subsequent cleanup efforts.

The case involved a dispute for the cost of cleanup between neighboring gasoline stations. American International Surplus Lines Insurance Co. (AISLIC), the insurer of a former Diamond Shamrock station, conducted a remediation under the direction of the Texas Commission on Environmental Quality (TCEQ). During the course of the investigation, it was determined that some of the contamination had migrated from the adjacent 7-Eleven property. AISLIC commenced an action against 7-Eleven under RCRA for injunctive relief to compel 7-Eleven to remediate the contamination, and for recovery of counsel fees, costs, as well as response costs under the Texas Solid Waste Disposal Act. In response to a motion for summary judgment filed over a year later, 7-Eleven argued that there was no imminent and substantial threat to human health or the environment based upon a report from AISLIC’s consultant prepared after initial work had been undertaken.

The right to bring such an action under RCRA requires that it be demonstrated that 1) the defendant is a “person” as defined by the Act, 2) that the defendant contributed to the handling, storage, treatment, transportation or disposal of any solid or hazardous waste, and 3) that the waste poses an imminent and substantial endangerment to human health or the environment. The third prong was the only issue to be determined. The Court found that the contamination at the Diamond property exceeded the Texas cleanup levels before the suit was filed and that the contamination may continue to migrate from the 7-Eleven property onto the Diamond property. The Court, however, found that there were questions of material fact as to whether the contamination at that time constituted an imminent and substantial threat to humans or the environment at that time, and therefore denied the motion.

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 February 19th, 2010

Martin Allen recently argued before the NJ Appellate Division in the case of Hunterdon Medical Center v. Readington. In that case, the N J Supreme Court reversed in part and remanded the matter to the Tax Court to determine if the physical therapy services provided at the off site heath and wellness center owed by the hospital are exempt from taxing under N.J.S.A. 54:4-3.6. On remand the Tax Court agreed with the argument that in the particular facts of the case, the portion of the property where the physical therapy was conducted is taxable. The hospital has appealed that decision which was recently presented to the Appellate Division.

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

Tags: Local Government Law, Tax Appeals

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SteveK February 19th, 2010

Mr. Allen appeared on February 4 as a speaker at the Monmouth County Assessor’s 4th Annual Conference. The topic of his talk was the “Legal Pathway through the Appeal Process” in which he discussed the procedural defenses and technical issues that may be employed by a municipality in a tax appeal. Mr. Allen will be speaking at the New Jersey Assessor’s Association Conference at Forsgate Country Club in Monroe Township on March 18th.

Tags: Local Government Law, Tax Appeals

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SteveK February 19th, 2010

Martin Allen of the firm recent obtained a decision from the Tax Court in Kolvites v Manville (unreported), which has become a case frequently cited for its holdings. The Court held that a case cannot be dismissed at the County Board for lack of prosecution if the taxpayer’s attorney on the day of the hearing faxes a proposed stipulation of settlement to the Tax Board because that action is not “deliberate and contumacious.” Also important was the Court’s finding that the taxpayer’s attorney’s actions may have implicated the “long standing rule that an attorney may not communicate directly with parties represented by counsel without the permission of that counsel. R.P.C. 4.2.” The Presiding Judge of the Tax Court, in his decision, stated:

“While it may be common,   . . . , for taxpayers’ counsel to discuss settlement with tax assessor, the court doubts that such negotiations are conducted without the prior approval of municipal counsel. If the court is mistaken in this regard, taxpayers’ counsel would be wise to modify this practice. Direct communication with a party who is represented by counsel with out first obtaining the consent of that counsel runs contrary to the rules of professional conduct applicable to all attorneys.”

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

Tags: Local Government Law, Tax Appeals

• Municipal Law , Real Estate , Tax Appeals
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SteveK February 19th, 2010

Martin Allen recently argued before the New Jersey Supreme Court in Davanne v. Edison.  The issue of the case is whether the dismissal of a tax appeal pursuant to Chapter 91 (N.J.S.A.54:4-34) is unconstitutional pursuant to the 8th Amendment of the U S Constitution and its N.J. equivalent as an “excessive fine.” N.J.S.A.54:4-34 provides that a tax assessor may request income and expense information from income producing property owners. If the owner fails to respond, it is precluded, by the Chapter 91 amendment to that law, from filing a tax appeal for the next tax year, subject to its testing the resulting assessment’s reasonableness in a hearing. The taxpayer in this case argued that any difference between the assessments put on the property by the assessor and its opinion of the correct assessment would result in overpayment of taxes that are unconstitutional excessive fines. Mr. Allen argued that taxes are not fines, that the law in question was a procedural mechanism for calculating a tax, that the law provided a due process mechanism for testing the reasonableness of the resulting assessment and therefore the law was constitutional. He also argued that the taxpayer failed to take advantage of a reasonableness hearing, and therefore waived any constitutional argument.

The argument can be seen at http://www.judiciary.state.nj.us/webcast/archive.htm

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

Tags: Local Government Law, Tax Appeals

• Municipal Law , Real Estate , Tax Appeals
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