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UPCOMING EVENTS
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SAVE THE DATE:
December 7-8, 2009
International Council of Shopping Centers (ICSC) New York National Conference & Deal-Making Idea Exchange
The Gibbons Real Property & Environmental Department will exhibit at this year's International Council of Shopping Centers (ICSC) New York show, which will be held December 7-8, at the New York Hilton & Towers/Sheraton New York & Tower, New York. If you are attending the event, please stop by the Gibbons exhibit, Booth #491 in Americas Hall II at the Hilton.
In addition, Gibbons will once again host our annual ICSC cocktail reception, on Tuesday, December 8 from 4 p.m. to 9 p.m. at McCormick & Schmick's, 1285 Avenue of the Americas (the corner of 52nd Street and 6th Avenue, one block from the Hilton). We look forward to seeing you!
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TABLE OF CONTENTS
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Articles
Media Commentary
Recent Activities
Department News
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ARTICLES
Accounting for Greenhouse Gases and Global Warming in Financial Disclosures
By: John H. Klock
A troika of decisions should send chills through the halls of many utilities and corporations. The first horse of the troika is the decision by the U.S. Supreme Court that says that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouses gases (GHG) under the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., and can be compelled to do so. The second horse is the decision by the Second Circuit granting states the power to abate GHG under the federal common law of public nuisance. The third horse is the decision by the Fifth Circuit that takes the final step and states that private citizens affected by global warming have the right to bring private nuisance suits.
Click here for full article
Changing the Climate for Greenhouse Gas Regulation: Decisions by Appellate Court and EPA May Help to Pave the Way for Comprehensive Federal Legislation
By: Paul M. Hauge
Since late June, when the House narrowly passed the American Clean Energy and Security Act of 2009, the loud and rancorous debate over health care may have obscured another critical issue being considered by Congress: climate change and the regulation of greenhouse gas emissions. Decisions made public on successive days in September by a federal appellate court and the U.S. Environmental Protection Agency (EPA), however, may go a long way toward making wide-ranging federal controls over greenhouse gas emissions a reality.
Click here for full article
EPA Proposes to Limit Greenhouse Gas Emissions from Largest Sources
By: Paul M. Hauge
On September 30, just days after finalizing its new rule on mandatory reporting of greenhouse gas (GHG) emissions, EPA announced that it is proposing to use existing Clean Air Act provisions to limits such emissions from the largest sources of such emissions. The proposed rule, which focuses on sources that emit more than 25,000 tons of GHGs per year, would subject hundreds of new sources and modifications to existing sources to EPA review each year. In total, according to EPA, some 14,000 large sources would come under the proposed rule, which requires them to obtain operating permits that include limits on GHG emissions.
Click here for the EPA’s announcement.
Click here for Administrator Lisa Jackson’s statement.
Click here for information on the proposed rule.
US EPA Sets National Limits on Construction Site Runoff
By: Susanne Peticolas
On November 23, 2009, the U.S. Environmental Protection Agency announced its final rule governing sediment and soil runoff from construction sites. The rule will take effect 60 days after publication in the Federal Register. The rule establishes enforceable numeric limitations on storm water discharges from construction sites. In a planned phase-in, the rule will initially apply to construction sites that disturb 20 acres or more at one time and require monitoring and compliance 18 months after the effective date in February 2010. Four years after the effective date, the rule will extend to construction sites disturbing 10 acres or more. Once fully implemented, the rule is expected to reduce 4 billion pounds of runoff pollutants and save approximately $369 billion dollars per year.
According to EPA, uncontrolled runoff from construction sites contributes to aquatic ecosystem degradation, increased drinking water treatment costs and impairment of the the recreational and aesthetic value of impacted waters. Although existing national stormwater regulations require construction site dischargers to obtain NPDES permit coverage and to implement control measures, 40CFR 122.26, this is the first time EPA has set nationwide performance or monitoring standards for construction site stormwater runoff. A copy of the final rule is available on EPA's website.
Acquisition of Bad Debt Loans
By: Shepard A. Federgreen
Lenders, as we all know, continue to be saddled with under-performing and non-performing commercial real estate mortgage loans. A quick internet search will reveal that many are predicting future defaults on billions and billions of dollars of loans. Amongst many other implications for both the lending institutions and the economy at large, carrying these loans impacts reserve requirements and, in turn, available capital. Potentially, we have the makings of a classic “vicious cycle."
Click here for full article
DEP Issues New Rules Governing Site Cleanups
By: Paul M. Hauge
On November 4, the New Jersey Department of Environmental Protection (DEP) issued its new Administrative Requirements for the Remediation of Contaminated Sites (ARRCS). The new rules, which will be codified at N.J.A.C. 7:26C, were mandated by Section 29 of the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-29.
Click here for full article
200 Feet Is Not Enough
By: Howard D. Geneslaw
Land use practitioners in New Jersey must pay close attention to public notice requirements, since the courts have long held that notice is a jurisdictional requirement. If the applicant fails to serve notice as required by law, any land use approval granted will, if challenged, likely be overturned. Accordingly, this necessitates a consistent, uniform set of notice requirements. The Municipal Land Use Law (MLUL) contains just such a framework and, in most instances, the courts have held firm in limiting notice to that which expressly is required by statute. There have, however, been certain court decisions that require notice in situations where the MLUL does not expressly require it (e.g., certification of a nonconforming use). A recent unpublished decision of the Appellate Division, GF Princeton, LLC v. Ewing Township Planning Board, 2009 WL 2045170 ( N.J. Super. Ct. App. Div. July 16, 2009), is the latest to go beyond the four corners of the MLUL.
Click here for full article
Sometimes It's Okay to Be Different: Nonconforming Uses in an Evolving Land Use Climate
By: Alfred R. Fuscaldo
There are 2,566 separate municipalities in the commonwealth of Pennsylvania, each with challenges relating to population, infrastructure, generation of tax revenue and the attraction of a successful and sustainable mix of land uses; each grappling with those issues as they relate solely to it and within the larger construct of its interrelationship with neighboring municipalities; each simultaneously dealing with the reality of today and the creation and implementation of its vision of tomorrow.
Click here for full article
Mechanics Liens in New York State - Is Time on Your Side?
By: Vivek Singh and Marc D. Fitapelli
Mechanics liens are a quick and relatively inexpensive remedy for contractors who are wrongfully denied payment for labor or materials furnished to an owner of real property. Powerful and effective, they interfere with an owner's ability to sell or refinance property and will often trigger a default under an owner's mortgage. Due to the ease with which mechanics liens are filed and the significant burden they may create, contractors and owners in New York should seek legal counsel early.
Click here for full article
MEDIA COMMENTARY
The Real Deal with Commercial Real Estate Transactions
By: Michele Alperin for U.S.1, 10/21/2009
Buying distressed commercial mortgage debt is not for the faint of heart. Nor is it for the inexperienced, the risk-averse, or those with shallow pockets. At the same time, the current economic disturbances have created a treasure trove of potential investment opportunities. Russell B. Bershad provides commentary for this article, which appeared in a recent edition of U.S.1, the business and entertainment publication for the Princeton, New Jersey area.
Click here for full article
Lenders Face Steep 'Learning Curve' with Site Cleanup Program
By: Evelyn Lee for NJBIZ, 11/9/2009
With the Licensed Site Remediation Professional program now in effect, some industry insiders are concerned that lenders' lack of familiarity with the new regulations may create obstacles in financing the acquisition or redevelopment of polluted sites. Banks, meanwhile, are trying to get updated on the changes, but said such an adjustment will take time. Edward F. McTiernan provides commentary for this article, which appeared in a recent edition of NJBIZ, the weekly business newspaper for New Jersey.
Click here for full article
RECENT ACTIVITIES
Gibbons Director John Klock Authors Comprehensive Guide to New Jersey's Evidence Rules and Statutes
Thomson West has published the third edition of Evidence Rules Annotated, written by John H. Klock, a Director in the Real Property & Environmental Department, as part of its "New Jersey Practice Series." Evidence Rules Annotated incorporates the full text of all New Jersey state and federal court evidence rules and statutes, arranged chronologically for ease of reference. Mr. Klock includes practice commentary, court decision summaries, and citations to the cases that interpret these rules, and he examines the differences between New Jersey state and federal rules. The book contains the text of the Committee Notes of the Commissions on New Jersey Evidence Rules, as well as an index and tables to cases.
Click here for full news release
Howard Geneslaw Speaks at Annual Planning Conference
Howard D. Geneslaw, a Department Director, spoke at the 2009 Annual Planning Conference on November 5-6 at the Hyatt Regency in New Brunswick, New Jersey. The conference was sponsored by the New Jersey Chapter of the American Planning Association and the Edward J. Bloustein School of Planning and Public Policy at Rutgers, the State University of New Jersey. Mr. Geneslaw was one of the leading speakers for a session called, "Testifying Effectively and Building a Record for Appeal," which featured a panel of planners, lawyers, and board members offering practical ideas on how to present a solid case when giving expert planning testimony.
Russ Bershad Presents at NJICLE Event
Russell B. Bershad, Co-Chair of the Real Property & Environmental Department, served as a speaker at NJICLE’s October 21 program on commercial real estate transactions in New Jersey. He presented on two topics: Acquiring Distressed Debt--Anatomy of a Mortgage Acquisition Transaction, and Mortgage Loan Financing in 2009 and Beyond--Loan Negotiation Issues. Mr. Bershad's presentation on acquiring distressed debt included an outline of the loan purchase process, typical provisions in a Loan Purchase Agreement, negotiation suggestions and a discussion of due diligence in acquiring distressed mortgage debt.
Click here for full program materials
Al Fuscaldo Presents CLE Program in Philadelphia
Philadelphia office Director Alfred R. Fuscaldo presented a CLE program on September 11 titled, "The ABCs of the ZBA: How to Prepare and Present a Case Before the Philadelphia Zoning Board of Adjustment," co-sponsored by the Philadelphia Bar Association's Real Property Section (for which Mr. Fuscaldo is the incoming chair) and Philadelphia V.I.P. (Volunteers for the Indigent Program). His co-presenter was Cheryl Gaston from the City of Philadelphia Law Department. The program addressed the roles of L&I and the ZBA in the zoning approval process; due diligence and information gathering in a zoning case; preparation and filing of a zoning application; preparation of exhibits and witness for a zoning hearing, presentation of a zoning hearing; and post-hearing and appellate procedure. Approximately 70 people attended this successful presentation, including attorneys from solo, mid-size, and large firms.
DEPARTMENT NEWS
Six Department Attorneys Ranked in Best Lawyers 2010 NJ Edition, with Natural Resources Practice Ranked #1 in the State
Among the 38 Gibbons attorneys that have been named to the 2010 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession, are six from the Real Property & Environmental Department. In addition, our Natural Resources practice was one of six firm practice areas receiving the top ranking in their respective categories in New Jersey, The firm itself was ranked #1 in Newark. First published in 1983, Best Lawyers is based on an exhaustive annual peer-review survey. For the new U.S. edition, more than 24,000 leading attorneys cast more than 2.8 million votes on the legal abilities of other lawyers in the same and related specialties. Top RPE Department rankings include:
- #1 in New Jersey in Natural Resources Law (full practice)
Russell B. Bershad
Real Estate
Peter J. Carton
Real Estate
Douglas J. Janacek
Land Use & Zoning
John H. Klock
Environmental
Edward F. McTiernan
Environmental
Natural Resources
Susanne Peticolas
Environmental
New Honor for Department Co-Chair
Russell Bershad has been elected a Fellow of the American College of Real Estate Lawyers, one of 28 members in the State of New Jersey. Mr. Bershad joins Shepard Federgreen as an ACREL Fellow. ACREL is a by-invitation organization of leading national real estate lawyers.
Gibbons Director Named Section Chair of Philadelphia Bar Association
Alfred R. Fuscaldo, who heads the firm's Real Property & Environmental Department's practice in Philadelphia, has been named Chair of the Real Property Section of the Philadelphia Bar Association for 2010.
Click here for full news release
2009 Fall Associate Class Includes New RPE Department Attorney
Gibbons announced its 2009 class of fall associates in October. Christina C. Fullam joined the firm as an associate in the Real Property & Environmental Department, where she will concentrate her practice in the environmental area. She recently completed consecutive clerkships with the Honorable Peter G. Sheridan, in the United States District Court for the District of New Jersey and the Honorable Jack L. Lintner, in the Superior Court of New Jersey, Appellate Division. Ms. Fullam received her law degree, cum laude, from Seton Hall University School of Law, where she received the Presidential Scholarship and was a member of Seton Hall Law Review. She received her Master of Arts in Theology from the Georgian Court University and her Bachelor of Science, magna cum laude, from St. Peter's College.
Click here for full news release
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