In Farmland Dairies, Inc. v. Borough of Wallington, N.J. Super. App. Div. (per curiam) (unpublished decision) (35-2-7909), the Appellate Division upheld the decision of the Tax Court in denying an unrelated neighboring property owner’s efforts at intervening in a pending local property tax appeal between the property owner and the Borough.  The court concluded that the intervention application of the putative intervenor was out of time and barred by the statute of limitations.  Although all residents of municipalities have standing and maintain the right to pursue tax appeals as “aggrieved” parties under the statute, including those related to their neighbor’s properties, any such contests must nonetheless comply with the statutory filing deadline.

The New Jersey Supreme Court has consistently recognized the necessity of complying with filing deadlines in the area of taxation.  The statutory scheme establishing the court’s jurisdiction in this area is “one with which continuing strict and unerring compliance must be observed.” See McMahon v. City of Newark, 195 N.J. 526, 546 (2008).  Indeed, our Supreme Court has declared that the “failure to file a timely appeal is a fatal jurisdictional defect.”  F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 425 (1985).  The Supreme Court has also explained that strict adherence to statutory filing deadlines is of particular concern in tax matters, given “the exigencies of taxation and the administration of local government.”  F.M.C. Stores, 100 N.J. at 424.  The Legislature “has attempted to set out a well-organized time-table for the purpose of enabling a municipality to ascertain the amount of taxable ratables within the jurisdiction in order that it might adopt a responsible and fairly accurate budget.”  Id. at 425.  “By incorporating a strict deadline in [the statute], the Legislature intended to ensure that municipalities receive timely notice that a particular property’s valuation is subject to challenge.”  Prime Accounting Dept. v. Township of Carney’s Point, 2013 N.J. Lexis at *31.

After previously remanding the matter to the Tax Court for further proceedings concerning the timeliness and propriety of the putative intervenor’s application for permissive intervention, the Appellate Division made it plain, mindful of the above-referenced well-settled jurisprudence, that any effort to intervene must, in the first instance, be timely pursued and that the annual tax appeal filing deadline will effectively wait for no one.

Although as demonstrated above, the inviolate nature of this statutory deadline is plain, the court’s decision here may have been made easier by the attendant distasteful nature of a case involving an unrelated party’s efforts at meddling with pending litigation between the real parties in interest (the actual owner of the property in question and the municipality).

New Jersey’s Appellate Division has once again served a stark reminder to prospective construction lien claimants regarding who may validly sign a construction lien claim.  The consequences of failing to properly execute a construction lien claim are dire – not only because the lien claim is subject to discharge, but along with that discharge may come an order requiring the payment of the attorneys’ fees and costs of the party making application for such discharge.

In Diamond Beach, LLC v. March Associates, Inc., Docket No. A-1704-17T1 (N.J. App. Div. December 24, 2018) (approved for publication), the court determined that the 2011 revisions to the Construction Lien Law did not serve to clarify or limit the then-existing construction lien signatory requirements, and therefore the 2011 revisions did not apply retroactively to lien claims filed prior to 2011.  Before the 2011 revisions, Lien Law Section 6 explicitly required that a lien be executed by a corporation’s “duly authorized officer.”  The 2011 revisions to Section 6 removed the “duly authorized officer” language, and instead stated that the lien claim form, provided in Section 8, “be signed, acknowledged and verified by oath of the claimant[.]”  The form in Section 8, however, requires that an “officer/member” sign the form, and the suggested notary form provides that the notary be satisfied that the signatory is the “Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company)” with “authority to act on behalf of the Corporation (partnership or limited liability company) and who, by virtue of its Bylaws, or Resolution of its Board of Directors (or partnership or operating agreement) executed the [lien claim] on its behalf.”

The trial court in Diamond Beach had ordered that the subject lien claim be discharged because it had been signed by the subcontractor lien claimant’s Accounting & Information Systems Manager, and there was insufficient evidence to support the claimant’s contention that that manager had been expressly authorized to execute lien claims by the claimant’s Board of Directors.  Thus, the court found, under the pre-2011 Lien Law, that the lien claim had not been executed by a “duly authorized officer” of the lien claimant.  The trial court further awarded attorneys’ fees to the project owner, which had sought the discharge of the lien.  The Appellate Division affirmed the trial court’s determinations, including the award of fees, reading broadly Lien Law Section 15’s language regarding the circumstances under which lien rights are forfeited and an affected party is entitled to a fee award for obtaining such a determination.

Even under the post-2011 Lien Law, the court signaled that the results would have been the same for essentially the same reasons.  In last year’s published decision, NRG REMA LLC v. Creative Environmental Solutions Corp., 454 N.J. Super. 578 (App. Div.), certif. denied, 234 N.J. 577 (2018), the court conducted much the same analysis under the current law, and held a lien claim unenforceable that had been signed by the claimant’s “financial director” without any written evidence presented that such “financial director” was a corporate officer or designated by the Board of Directors to execute such documents on behalf of the claimant.  In doing so, the court noted that the Lien Law’s “procedural requirements were intended to be stringently applied.”

The critical lesson from the foregoing cases is that any business entity, however formed, that seeks to file a New Jersey construction lien claim, must ensure that the person signing that lien claim, is authorized to do so by the governing documents of that business entity – or by a written resolution or authorization duly executed by the appropriate board, officer, member or partner of that business entity – as that entity’s business form dictates.  The failure to have a properly-authorized individual execute the lien claim will, if challenged, prove fatal to the lien claim and extremely costly to the lien claimant.

 

A New Jersey appellate court ruled in Lopez v. Palin Enterprises, Associated, No. A-0886-17T4 (N.J. App. Div. December 5, 2018) that a tenant’s insurance policy was not the primary coverage for an injury to its employee which occurred within its leased premises.

The defendant in the case, Palin Enterprises, Associated (“Palin”) owned a commercial building and leased a portion of it to Agile Trade-Show Furnishings, Inc. (“Agile”).  Agile employed the plaintiff, Teodoro Lopez (“Lopez”).  Lopez was injured using a freight elevator located within the leased premises and sued Palin for damages.  Palin tendered the defense to Agile’s insurance company, Wausau Insurance (“Wausau”), arguing that the Wausau policy was the primary insurance coverage for Lopez’s claim.  Palin was named as an additional insured under the Wausau policy.  The Wausau policy provided “[t]his insurance shall be excess over any other insurance available to the additional insured whether such insurance is on an excess, contingent or primary basis, unless you are obligated under a written agreement to provide liability insurance for that additional insured on any other basis. In that event, this policy will apply solely on the basis required by such written agreement.”

The lease between Palin and Agile required Agile to procure “a comprehensive policy of liability insurance protecting [Palin] . . . against any liability whatsoever, occasioned by any occurrence on or about the Demised Premises.”  The lease did not require such policy to be the primary liability coverage for such occurrences.   The Court found that Wausau was not required to defend the Lopez lawsuit as its coverage is not to all claims, only as to all liability.  The Court ruled that due to the failure of the lease to specify that Agile’s liability insurance policy must be primary, per the terms of the Wausau policy it provides excess coverage and Palin’s liability insurance policy provides the primary coverage.

This case underscores the necessity of carefully drafting indemnity and insurance provisions in contracts to properly allocate risks between the parties thereto, specify the types of insurance each party must carry to cover such risks, and designate the insurance which is primary or excess.

 

 

Developers often employ the “time of application” rule (“TOA Rule”) to avoid having to comply with certain legal requirements enacted after an application has been submitted to a local planning or zoning board.  More specifically, the TOA Rule provides that “notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application….”  See N.J.S.A. 40:55D-10.5 (emphasis added).  Notwithstanding this statutory provision, developers must still comply with any new laws that specifically relate to health and public safety.

The TOA Rule replaced the “time of decision” rule, which allowed municipalities to apply new or amended ordinances to pending development applications.  As a result, applicants were often compelled to incur significant costs and delays associated with altering their applications in an effort to meet the new legal requirements.  The TOA Rule only applies, however, once a development application has been “submitted” to a municipality.  Until that time, a developer remains responsible for complying with all legal requirements regardless of when they took effect.

While the term “submission” is not expressly defined under the statute, the New Jersey Supreme Court squarely addressed the issue in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township, 233 N.J. 546 (2018).  In Dunbar Homes, the developer filed an application to construct 55 garden apartments on a site where garden apartments were considered a permitted conditional use.  The next day, the Township enacted an ordinance that prohibited garden apartments in the zone where the site was located. The zoning official subsequently determined that the developer had not submitted all documents required by the zoning board’s development application checklist.  The developer was then notified that the TOA Rule was inapplicable and that it would need to file a new application with the zoning board seeking a “use” variance pursuant to the more stringent standards implicated by N.J.S.A. 40:55D-70(d)(1).

The zoning board sided with the zoning official and the developer appealed to the Law Division.  The Law Division judge disagreed and concluded that the application was deemed “submitted” because it provided the board with “sufficient information to begin its review” and, therefore, the TOA Rule applied.  The Township appealed and the Appellate Division reversed that decision after finding that the relevant statute defining the term “application for development” included all documents prescribed by the board’s checklist for development.  Applying this bright-line rule, the Appellate Division concluded that the failure to submit even one of the items on the board’s checklist precluded application of the TOA rule.  The Supreme Court ultimately agreed with the Appellate Division, noting that N.J.S.A. 40:55D-3 expressly defined an “application for development” to include:  “the application form and all accompanying documents required by ordinance.”  Because it was undisputed that the developer failed to submit all required documentation and neither sought nor obtained a waiver regarding any requirements, the Court found that the application was never submitted and the TOA Rule did not apply.

Accordingly, developers must be certain to submit all documents identified in the municipal development application checklist or seek and obtain a waiver.  Only by vigorously complying with the requirements of the municipal checklist can a developer expect to avail itself of the protections afforded by the TOA Rule.

On June 21, 2018, the U.S. Supreme Court held that internet retailers may be required to collect sales taxes in states where they have no physical presence. The decision, South Dakota v. Wayfair, No. 17-494 (June 21, 2018), overturned a 1992 Supreme Court precedent which held that a retailer must have a physical presence in a state in order to be obligated to collect sales taxes.

Many in the retail industry have argued that the physical presence rule has given out-of-state on-line sellers an unfair advantage over brick-and-mortar competitors. The Court’s decision concurs.  Writing for the majority, Justice Kennedy stated that the rule, “has come to serve as a judicially created tax shelter” for online and out-of-state businesses.  The Court estimated that this “tax shelter” has caused states to lose between $8 and $33 billion in potential tax revenue every year.

The majority grappled with redefining “presence” in light of modern technology.  The opinion states that “a business may be present in a state in a meaningful way without that presence being physical in the traditional sense of the term.” In support, the Supreme Court considered evidence of the necessary presence for taxing purposes to be: a website accessible in the state, a website that leaves cookies saved to the customer’s hard drive, apps available for download, storing data in servers located in the state, and targeted advertisements.

The majority also addressed compliance burdens small businesses may face when selling a small volume to customers in many states. The Court’s majority stated that they expect software developers and congressional legislation to provide assistance and guidance with respect to compliance.

About twenty states are already encouraging uniformity by adopting the Streamlined Sales and Use Tax Agreement. In addition to providing sales tax administration software paid for by the participating states, this agreement requires single, state level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules.

This high court decision is a major victory for “brick and mortar” retailers as well as State Treasuries.  There will be much to follow as states move to impose and enforce sales tax collection obligations on on-line sellers.  We will also be monitoring any legislation proposed in Congress to address this decision.