BrachEichler LLC Blogs Feed Nov 2018firmwise Expands MLUL's Definition of "Interested Party" Aug 2018Blogs<p>In the case of <em>Cherokee LCP Land, LLC v. City of Linden Planning Board</em>, the NJ State Supreme Court has expanded the definition of &ldquo;interested party&rdquo; in the Municipal Land Use Law (MLUL) to include the holder of a tax sale certificate. The Court considered whether the holder of a tax sale certificate has standing as an &ldquo;interested party&rdquo; to challenge a planning board&rsquo;s approval of a land use application for a neighboring property. The Court ruled that tax lienholders can have standing to challenge a planning board&rsquo;s actions, however, this is &ldquo;not in and of itself determinative to standing.&rdquo; A tax lienholder must also show that its right to use, acquire, or enjoy property, is or may be affected by the planning board&rsquo;s action. While the ruling stops short of giving all tax lienholders automatic standing, it is significant as it still increases the potential pool of challengers to a planning board&rsquo;s decision. This arguably gives those with the most speculative of future interests in neighboring properties to use the MLUL to challenge the decisions of the municipal planning board.</p> Costs After Divorce: Agreement for Child to Take Out Loans Rendered Unenforceable Aug 2018Blogs<br /> Once again, New Jersey provides a conflicting remedy for a child of divorce attending college compared to a child in an intact family. In an unpublished (non-precedential) decision, the Appellate Court affirmed a trial court order finding that a child was not bound by a property settlement agreement requiring her to apply for college loans. Carl J. Soranno, Esq. of the Family Law Department previously wrote on this issue for the New Jersey Law Journal in January of 2015. Unfortunately, it appears that the situation for divorced parents has only gotten worse.<br /> <br /> The parents in <a href="" target="_blank">M.F.W. v. G.O.</a> were divorced in 2003. At the time their daughter was five years old. The parties entered into a property settlement agreement which required both parents to contribute toward college expenses. The Agreement also required their daughter to apply for all &ldquo;loans, grants, aid, and scholarships available to her, the proceeds of which shall be first applied to college costs.&rdquo; In 2016, the daughter was accepted at Georgetown University &ndash; a school with a first semester tuition of over $30,000. The parties then filed motions over the payment of the daughter&rsquo;s education costs and child support (among other issues not addressed in this post).<br /> <br /> On the issue of college costs, the trial court ruled that it was &ldquo;unfair and unjust&rdquo; to require the child to apply for and utilize &ldquo;loans, grants, aid, and scholarships&rdquo; before the parents would be required to contribute. The court also found a change in circumstances warranting a modification of the Agreement; i.e., both parents&rsquo; incomes and assets had increased since the divorce. Consequently, the court determined that the parties could afford to send their daughter to Georgetown University without requiring their daughter to apply for loans first. The Appellate Division affirmed the trial court&rsquo;s decision, which was reached without a plenary hearing. The Court wrote that &ldquo;because it was the parents&rsquo; obligation to pay for college and they had the ability to do so&rdquo; it was unfair for the daughter to obtain loans.<br /> <br /> The <a href="" target="_blank">M.F.W. v. G.O.</a> decision is another blow to divorced parents. While intact families can make the decision about whether and how they want to contribute to their child&rsquo;s college education, divorced parents are forced to abide by a judge&rsquo;s determination on how to finance college. The parents in <a href="" target="_blank">M.F.W. v. G.O.</a> tried to make their own decision in their settlement agreement on how to pay for college, only to have the court reject their agreement in favor of the child. The provision included in the parties&rsquo; settlement agreement was standard and is included in many settlements. Although the parents&rsquo; income had increased (from approximately $130,000 per year combined to $300,000 per year combined), it will still be difficult to pay tuition of over $30,000 per semester with no financial contribution from the daughter. It is discouraging that parties could enter into these terms only to find out years later that they are unenforceable. In sum, divorced parents who litigate over college costs have little to no control over the outcome.<br /> <br /> Although the bulk of the <a href="" target="_blank">M.F.W. v. G.O.</a> decision creates a legal headache for divorced parents and family law practitioners, the opinion did affirm the trial court&rsquo;s decision not to hold a plenary hearing on the issue of college costs and child support. Most prior decisions on similar issues confirmed the need for a plenary hearing &ndash; and thus created a significant cost to any litigant seeking the relief. Nevertheless, the <a href="" target="_blank">M.F.W. v. G.O.</a> decision confirms the risk for parents litigating college costs. Although avoiding a plenary hearing can save money for a client, the risk over what the judge will order regarding college costs outweighs any benefit.<br /> Updates Jun 2018Blogs<p>In a flurry of legislative activity in New Jersey and New York this year, several new laws have been recently adopted in each state. As a recap, here is a list:</p> <ul> <li> <p>New Jersey&rsquo;s new Equal Pay Act, effective July 1, 2018, amends the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;). This new law provides significant new money damages and extends the statute of limitations for aggrieved employees of any protected characteristic (not just gender) who claim a pay disparity. The new law also places the burden on the employer to justify any pay disparity that exists. Also, expect several more employment laws to be signed into law in calendar year 2018 in New Jersey.</p> </li> <li> <p>New York State amended its Human Rights Law to impose liability against employers who fail to prevent harassment against non-employees (contractors, vendors, consultants, etc.) in the workplace.</p> </li> <li> <p>New York State now bars the use of mandatory arbitration clauses to resolve sexual harassment claims. This new law is effective July 11, 2018 although, in light of the U.S. Supreme Court&rsquo;s recent decision affirming the use of employee arbitration agreements, this law may be the subject of litigation in the future.</p> </li> <li> <p>New York State, effective July 11, 2018, will prohibit, with an exception in some cases, the use of confidentiality and non-disclosure agreements relating to sexual harassment claims. This new law is effective July 11, 2018.</p> </li> <li> <p>New York State will require employers to have a written anti-harassment policy as well as annual training. Although these two best practices have historically been recommended to employers, they will now be required by law in New York State, effective October 9, 2018. The New York State Department of Labor will be publishing model policies and training programs and your company should customize those policies to fit the workplace.</p> </li> <li> <p>Similarly, New York City amended the New York City Human Rights Law to require anti-harassment training to most employers, expand the coverage of the law against sexual harassment claims, and lengthen the statute of limitations for those claims. The mandatory training component of the law will take effect April 1, 2019.</p> </li> <li> <p>New York City also amended its own Earned Sick Time Act to provide additional job-protected leave for absences relating to family offenses, sexual abuse, stalking, and human trafficking &ndash; known as &ldquo;safe&rdquo; time. This law contains another amendment, effective July 18, 2018, to require employers to grant schedule changes (temporarily) two times per calendar year for leave reasons covered by the Earned Safe and Sick Time Act.</p> </li> <li> <p>New York City expanded the definition of sexual orientation and gender under the New York City Human Rights Law</p> </li> <li> <p>Finally, effective October 15, 2018, the New York City Human Rights Law will require that employers engage in a cooperative dialogue in response to employee requests for reasonable accommodations relating to religious, disability, pregnancy, childbirth or related conditions, or victims of domestic violence needs. The employer&rsquo;s decision must be put in writing setting forth the accommodations granted or denied.</p> </li> </ul> Murphy Signs Clean Energy Legislation May 2018Blogs<p>On Wednesday, Governor Phil Murphy signed bills related to the environmental and energy pledges he made during his campaign. The Governor signed A-3723, a Renewable Energy Bill, which provides new renewable energy standards, implementation of energy efficiency measures along with reforms related to the State&rsquo;s solar programs and reinvigorating programs related to major offshore wind development. The Governor also signed into law S-2313 establishing a Zero Emissions Certificate program in order to maintain New Jersey&rsquo;s nuclear power supply. In addition, the Governor signed an executive order to update New Jersey&rsquo;s Master Energy Plan to provide for 100% clean energy by 2050. The Master Energy Plan is directed to be completed by June 1, 2019 and will incorporate the provisions of the new legislation.</p> Revises Regulated Medical Waste Storage and Disposal Regulations Apr 2018Blogs<p>The New York Department of Environmental Conservation (&ldquo;DEC&rdquo;) issued an enforcement discretion letter related to storage time limitation requirements for regulated medical waste containers, revising 6 NYCRR 365-1.2(b)(7) and 6 NYCRR 365-1.2(b)(8). Based upon concerns of small generators of regulated medical waste (&ldquo;RMW&rdquo;) such as dental offices, the DEC will revise provisions related to the removal of RMW and sharps from patient care or use areas to a room or area designated for RMW storage. The DEC will now require that RMW and sharps be removed when the container has reached the fill line indicated on the container, is otherwise filled, or the container generates odors or other evidence of putrefaction, whichever comes first. This allows small generators additional time as the regulations now provide specific hour and day requirements for the removal of these items.</p> New Jersey Equal Pay Law Has Plaintiff's Lawyers Licking Their Chops Mar 2018Blogs<p>Recently, both Houses of New Jersey&rsquo;s legislature overwhelmingly passed the &ldquo;Diane P. Allen Equal Pay Act&rdquo; which is now destined for the Governor&rsquo;s signature. This sweeping new equal pay legislation amends the New Jersey Law Against Discrimination (&ldquo;NJLAD&rdquo;), and makes it unlawful &ldquo;[f]or an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.&rdquo; It applies to all of New Jersey&rsquo;s already protected classes. While there are exceptions for bona fide differences in education and experience, this law will substantially increase the burden on your businesses to make sure these disparities either don&rsquo;t exist, or if they do &ndash; that they are defensible. While the NJLAD already provided for compensatory and punitive damages for employees who are the victims of unlawful employment practices, this amendment allows for treble damages. While this bill is not yet law, we will be watching this legislation closely.</p> Decision Likely to Have Impact On All NJ Municipalities Mar 2018Blogs<p>On Thursday, March 8, 2018 a judge in Mercer County, New Jersey ordered Princeton Township and West Windsor Township to plan for more low- and middle-income housing within their boundaries than they had argued they needed to provide for. This ruling has been long anticipated by experts and officials on all sides of the affordable housing issue. In her decision, Superior Court Judge Mary Jacobson favored the methodology endorsed by housing advocates when she concluded that the state should add 155,000 affordable housing units by 2025. While this number is less than housing advocates had sought, it is more than the towns wanted.</p> <p>While her decision applies to only the two Mercer County towns, other municipalities have been awaiting the ruling as they struggle with how much affordable housing they must provide under the New Jersey Supreme Court&rsquo;s longstanding Mount Laurel cases and where it can and should be built. Kevin Walsh, Esq., with the housing advocate group Fair Share Housing Center that has been driving the litigations, said his group has reached settlements with approximately 190 municipalities on the number of housing units and where they will be built, leaving approximately 140 more to go. This latest ruling may now encourage additional settlements.</p> Officers Held Individually Liable for Violation of Environmental Regulation Mar 2018Blogs<p>The Texas Supreme Court ruled that a corporate officer can be held liable for violating an environmental regulation if the regulation applies to a &ldquo;person&rdquo; and if he or she personally participated in the conduct. The defendant, the only member of the LLC that owned the property, failed to maintain and monitor a groundwater remediation system and violated the compliance plan associated with the property. Should this decision be adopted by other jurisdictions, it could have an effect on real estate transactions regarding contaminated property, as well as an effect on corporations and their officers. This decision, while in Texas state court, could signal an expansion of other state and Federal agencies that seek to hold corporate officers or members of an LLC personally liable for failure to comply with environmental regulations and compliance provisions.</p> Division Upholds the ExxonMobil Natural Resource Damage Settlement Feb 2018Blogs<p>The New Jersey Appellate Division rejected an appeal from Environmental Groups and a former State Legislator of the New Jersey Department of Environmental Protection&rsquo;s two administrative consent orders (ACOs) with ExxonMobil resolving a lawsuit over Natural Resource Damages (NRD) assessed at its facilities in Linden and Bayonne. The settlement was controversial as the $225 million was far less than what certain experts had originally estimated the damages to be. The Appellate Division upheld the ACOs, which had been approved by the trial judge. ExxonMobil still remains responsible for all clean-up and remedial costs related to contamination at those facilities.</p> Acquits Menendez On Some Charges; Prosecution Drops the Others Feb 2018Blogs<p>The prosecution of U.S. Senator Bob Menendez and Dr. Salomon Melgen, which ended in a deadlocked jury last November, was resolved by Judge William H. Walls, who granted a defense motion for acquittal of seven of the eighteen counts of the indictment on January 24, 2018. Those seven counts involved political contributions of $660,000 made by Melgen to benefit Sen. Menendez, in return for Sen. Menendez helping Melgen with Melgen&rsquo;s investments in the Dominican Republic and a Medicare dispute, according to the government. Judge Walls found no quid-pro-quo bribery, and acquitted defendants of those charges. Unfortunately for the government, bribery in the form of money is the most common form of corruption, and the most familiar to the public, including potential jurors. The only remaining counts for the trial would essentially have been non-monetary gifts such as flights and hotel stays, which may appear less as bribes and more as gifts and courtesies between friends. Moreover, the value of those &ldquo;gifts&rdquo; was a small fraction of the monetary payments. Accordingly, on January 31, the prosecution decided to drop the case altogether, despite announcing on January 19 that it would retry both Sen. Menendez and Melgen. <br /> <br /> The prosecution of Menendez is illustrative of most white collar crimes, which involve a significant paper trail, including documentation, billing, and correspondence. These cases turn on circumstantial evidence and inferences. Unlike non-financial cases that may involve fingerprints, eyewitnesses or DNA, the direct evidence is generally not in dispute. The prosecution and the defense are cooking with the same ingredients, and each is trying to make something that smells different to the jury. However, when Judge Wall removed $660,000 as a potential ingredient, there was little chance the prosecution could create a recipe that smelled like a crime.</p>