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PQA’s Waldron wins judgment against defendant under the Uniform Fraudulent Transfer Act

On August 25, 2010, the Honorable Mary C. Jacobson, Presiding Judge of the Superior Court for Mercer County, entered an order finding that the transfer of a home by a chiropractor to his mother, constituted a fraudulent transaction under the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20, et seq (the “UFTA”). The Court also ordered that PQA may file a new application for relief under the UFTA, and may apply for a final judgment up to the $525,000 amount of the value of the home that the defendant unlawfully conveyed, as well as its attorneys’ fees and costs, once the amount of the damages the defendant owes to PQA’s client is established at the conclusion of parallel proceedings that are pending in another court pursuant to the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1, et seq.

The UFTA motion was successfully briefed and argued by PQA Associate Kathleen Waldron. Discovery in this litigation, which included a series of third-party subpoenas to obtain the bank accounts of the defendant and his mother, and the records of the mortgage lender and broker involved in the transaction, was handled by PQA Associate Denise O’Hara.

PQA Teams Up With LifeSize to Link its Offices Via Video

In July 2010, PQA joined the videoconferencing revolution. The firm’s LifeSize high definition videoconferencing system will enable the attorneys and staff in PQA’s Belmar, Morristown and Trenton offices to better communicate and collaborate with each other, and with the firm’s clients. The system will make it easier to arrange meetings and cut down on travel time and costs for both the firm and its clients, all while reducing the firm’s carbon footprint.

The Belmar office has installed the LifeSize HD Team system, which enables simultaneous video participation from four locations. The other offices are equipped with the LifeSize Express product. The system’s dual-screen capabilities enable documents and other media to be broadcast and displayed alongside the teleconferencing screen, making it easier for the firm’s lawyers and clients to collaborate from a distance.

In addition to enable real-time PQA is using the LifeSize VideoCenter appliance to stream live video presentations, updates and training sessions to its staff, clients and invited guests. The VideoCenter also enables presentations to be easily archived, so they can be accessed from the firm’s secure video library.

PQA purchased its LifeSize system through eTribeca, LLC.

PQA wins important CAFRA rule change that will promote Smart Growth development

On June 7, 2010 the Department of Environmental Protection adopted an important CAFRA rule change that will promote Smart Growth development in New Jersey’s coastal communities. For decades New Jersey’s Coastal Area Facilities Review Act (“CAFRA”) regulations have required that developments in the CAFRA zone involving 24 residential units or more provide at least 2 on-site parking spaces for each residential unit. See N.J.A.C. 7:7E-8.14(e). While the purpose of this regulation — namely, to ensure that multi-family development near the beachfront did not displace on-street parking used by beachgoers — was well-intentioned when originally adopted, the regulation was more broadly written than necessary to achieve this purpose. In Monmouth County, for example, the CAFRA zone extends from the beach more than three miles inland to the Garden State Parkway, far from where even the most fervent sun worshiper is willing to park his car and trek to the beach.

The regulation’s unintended impact became apparent to PQA partner and Belmar Mayor Ken Pringle in 2007, when redevelopers involved with Belmar’s Seaport Village Redevelopment Plan attempted to obtain CAFRA approval for their projects. Belmar’s redevelopment plan, which won the Smart Growth Planning Award from New Jersey Future in 2007, permitted redevelopers to calculate parking requirements based on a shared parking formula that took into account off-setting peak parking demands from residential and commercial uses in a mixed-use project. The approach was designed to achieve both environmental and economic goals by minimizing the amount of on-site space that had to be dedicated to parking. But Belmar’s redevelopers found that no matter how efficiently they designed the mix of uses on their projects, or the sizes of the residential units they proposed, NJDEP insisted that there had to be at least two on-site parking spaces for each residential unit. To make matters worse, one CAFRA permit issued by NJDEP staff provided that that the only alternative to meeting this requirement would be for the Borough to make up any shortfall by dedicating on-street parking spaces for the exclusive use of residents of the development — exactly the outcome the regulation was designed to prevent!

In the spring of 2007, Pringle wrote to then NJDEP Commissioner Lisa Jackson to explain the problem, and pointed out that the DEP’s interpretation of N.J.A.C. 7:7E-8.14(e) was inconsistent with the both its original purpose, and four of the eight basic coastal policies underlying the Coastal Area Facilities Review Act. Most notably, these policies include a mandate to “[c]oncentrate rather than disperse the pattern of coastal residential, commercial, industrial, and resort development,” and to “[e]ncourage residential, commercial, and recreational mixed-use redevelopment of the developed waterfront.” Pringle pointed out that the NJDEP’s inflexible interpretation of N.J.A.C. 7:7E-8.14(e), was not only inconsistent with these policies, but with Smart Growth principles in general. Indeed, the effect of the NJDEP staff’s interpretation of this regulation was to effectively bar coastal municipalities from adopting shared parking strategies that were designed to make the most efficient use of precious — and expensive — coastal land. See, e.g., Shared Parking, Urban Land Institute (2nd Ed., 2005).

In addition to requesting that N.J.A.C. 7:7E-8.14(e) be amended to encourage mixed-use Smart Growth projects, Pringle also requested that NJDEP consider amending the regulation to make it easier for coastal municipalities to provide affordable housing within such projects. Pringle pointed out that although N.J.A.C. 7:7E-8.14 contained an exemption for nursing home and assisted living facility uses, and provided a mechanism for reducing the two-space per residential unit parking requirement for senior citizen housing, it did not contain a similar provision for affordable housing units.

After several meetings with NJDEP’s CAFRA staff during late 2007 and 2008, and an internal review of the issue led by Acting Commissioner Mark Mauriello, a proposed amendment to the regulation was published in January 2009 that limited the two-space per residential unit parking requirement to developments located within one-half mile of the beach. The amendment also provides that residential units of 650 feet or less would require only one off-street parking space. Although the amendment was signed by Mauriello in January, 20010 during the waning days of the Corzine Administration, the publication of the regulation was delayed by Executive Order 1 issued by Governor Christie, which required that all pending regulations undergo review by a “Red Tape” commission before being finally adopted. The amendment to N.J.A.C. 7:7E-8.14(e) was cleared for publication on June 7, 2010.

The effect of this amendment is to eliminate the single biggest regulatory hurdle to Smart Growth development in New Jersey’s coastal communities, and to give municipal officials and local developers the flexibility to craft parking strategies designed to make the most efficient use of limited downtown real estate. Because many New Jersey coastal communities in Monmouth and Ocean County are served by New Jersey Transit’s Coast Line, this amendment will also encourage transit-oriented development all along the New Jersey Transit Coast Line corridor.

PQA’s land use attorneys represent both commercial and residential developers on projects of all sizes, from small-scale residential development to 300-lot subdivisions to large-scale shopping center and mixed-use projects. PQA attorneys are actively engaged in statewide efforts to promote sustainable design and Smart Growth and transit-oriented development, and represent a number of municipalities and municipal land use boards ranging from the Boroughs of Red Bank and Spring Lake, to the City of Trenton.

George McGill appointed Bradley Beach Borough Attorney

PQA Partner George D. McGill was appointed Bradley Beach Borough Attorney by Mayor Julie Schreck at the Borough’s annual reorganization meeting on July 1, 2010, and confirmed by a unanimous Borough Council. This will be McGill’s second tenure as Bradley Beach Borough Attorney. He previously served as Borough Attorney from 2001 through 2002, and had served from 1994 to 2001 as the Assistant Borough Attorney, in the absence of then Borough Attorney Joseph Quinn.

George McGill has a wide range of experience in municipal law, including land use matters, tax appeals and municipal litigation, including local public contract law, Title 59 matters and Alcoholic Beverage Licensing. He also is experienced in a number of other practice areas which touch on municipal law, including workers compensation, the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, and has appeared before numerous courts, boards and administrative tribunals.

In addition to the Borough of Bradley Beach, Mr. McGill’s public entity clients include the Board of Adjustment of the City of Trenton; the Planning Board of the Borough of Spring Lake; and the Planning Board of the Borough of Spring Lake Heights.

PQA Wins Victory for Borough of Red Bank

PQA attorney Tom Hall recently won an important victory for the Borough of Red Bank and its children in the matter of General Sports Venue, L.L.C. d/b/a Astroturf v. Borough of Red Bank and Precise Construction Inc., Docket No., MON-L-2411-10. The Borough advertised bids to install a synthetic turf sports field. In the bid specifications, Red Bank reserved the right to choose the specific type of turf to be used within ten days of bid award. Precise Construction was the low bidder and specified that it would perform all preparatory and site work and use synthetic turf manufactured and installed by Astroturf. After the bid opening and at the municipality’s request, Precise agreed to substitute higher grade Field Turf brand synthetic turf at no additional cost. Astroturf sued both the Borough and Precise. Astroturf argued that because it had a subcontractor relationship with Precise, Red Bank violated the public bidding laws by improperly switching subcontractors and that the ten-day review process effectively created a sole source bid that only Field Turf could win. PQA successfully defended the Borough by proving to the Court’s satisfaction that Astroturf was not a subcontractor, but a mere supplier that had no standing to challenge the bid specifications. PQA also successfully argued that the prohibitions against “contractor shopping” and “sole source specifications” in the Local Public Contract Law were not violated under the facts of this case. Most significantly, PQA discovered emails that Astroturf’s sales manager sent to the Borough which proved that Astroturf willingly participated in Red Bank’s ten day turf review process, even going so far as to invite a contingent of Red Bank officials on a fully paid visit to Astroturf’s Georgia factory. Given this evidence, the Court ruled that Astroturf was prohibited from challenging the legality of the ten day turf review process when it unsuccessfully participated in that very same process, instead of challenging that process prior to the receipt of bids as required by the public bidding laws.