A 2015 Amendment to the Unemployment Insurance Statute is Construed Favorably to a Claimant

McClain v. Board of Review, ___ N.J. Super. ___ (App. Div. 2017).  In general, employees who leave work voluntarily are disqualified from obtaining unemployment benefits.  In 2015, the unemployment statute, N.J.S.A. 43;21-5(a), was amended to exempt from disqualification “an individual who voluntarily leaves work  with one employer to accept from another employer employment which commences […]

The post A 2015 Amendment to the Unemployment Insurance Statute is Construed Favorably to a Claimant appeared first on Appellate Law NJ Blog.

from Appellate Law NJ Blog http://ift.tt/2vvsJW9
via IFTTT

Don’t Look Back In Anger, When It Comes to Estate Planning

You may believe that once you’ve completed a Will, it never again needs to cross your mind. Yet if Hurricane Harvey’s path of destruction has taught us anything, it’s that we may not get a say in our future life events. While not all sudden life changes can be avoided, there are always ways in which you can better protect yourself and your loved ones.

Can Anything Be Done to Stop the PennEast Pipeline?

What is the status of the PennEast Pipeline project?

With the recent confirmation of two new commissioners, a quorum has been restored in the Federal Energy Regulatory Commission (FERC). This likely means that FERC will soon begin addressing the approval of natural gas pipeline projects, including the PennEast Pipeline.

The PennEast Pipeline project received its final environmental impact statement from FERC in April 2017.

In the next step in the approval process, FERC will decide whether to issue a Certificate of Public Convenience and Necessity under Section 7 of the federal Natural Gas Act. Once a Certificate is issued, as is probable, FERC will convey the power of eminent domain to the PennEast Pipeline project owners. PennEast will then use the power of eminent domain to take private property to construct the pipeline along a right-of-way approved by FERC.

What is eminent domain?

Eminent Domain is the power of the government to take private property and convert it into public use. Condemnation is the process used to exercise the power of eminent domain. The Fifth Amendment requires that the government provide just compensation to the property owners if it takes property through eminent domain. This means if the government wants your land for public use, it must buy it from you at fair market rates. Usually, the government will try to buy your property before going through the condemnation process. The landowner’s consent is not required for the government to take property for public use.

PennEast is not a government agency – so how can it take my land?

Certain private companies and projects are granted the right to acquire property by eminent domain, including railroads, energy companies, and natural resource companies. If the PennEast Pipeline project receives a Certificate of Public Convenience and Necessity, the government will grant PennEast the ability to use eminent domain to enable it to take the property of private landowners to build its pipeline.

Once PennEast gets a Certificate of Public Convenience and Necessity from FERC, can PennEast come on my property and conduct surveys or tests?

Absolutely not. PennEast must either have the landowner’s consent to come on the property or a Court order.

How will PennEast proceed with taking my land through eminent domain?

Once PennEast obtains the Certificate of Public Convenience and Necessity, PennEast may attempt to negotiate the amount of “just compensation” to be paid with the landowners, or proceed immediately with filing a complaint in the United States District Court seeking a court order for possession of the property and confirming PennEast’s right to take property. Since PennEast needs to gain access to property to complete surveys and studies, it is likely that PennEast will immediately file suit.

Will I be penalized if I choose not to negotiate and force PennEast to go to court?

No. You have a right to contest the taking of your property and what PennEast must pay for your property.

Can I stop PennEast from taking my property?

• You can challenge FERC’s decision to issue the Certificate of Public Convenience and Necessity by first seeking a rehearing before FERC, followed by an appeal to the United States Court of Appeals. Some groups, like the Sierra Club, have succeeded in challenging the issuance of a FERC Certificate.
• You can oppose the taking when PennEast files its lawsuit against you to take your property. Many traditional defenses under state law are not applicable to pipeline cases that fall within the jurisdiction of FERC.
• You can contact the New Jersey Department of Environmental Protection and the Delaware River Basin Commission and voice your objection to the pipeline and describe the harm to you and your property. Although this is not a direct challenge to the right to take your property, PennEast cannot put a shovel in the ground and start construction until certain approvals are obtained from these two agencies. If approvals are not obtained and the pipeline is never built, property owners may be able to convince the Court to vacate the orders approving the taking of their property.

If PennEast prevails and the court determines it is authorized to exercise the power of eminent domain – you can continue to negotiate the amount of compensation to be paid. If no agreement is reached, the court will either hold a trial or appoint three commissioners to a panel to determine the amount of compensation. A trail or hearing will be held and evidence will be presented.

Do I need a lawyer? Can’t I just negotiate with PennEast on my own?

You can negotiate on your own, but, depending on your knowledge of eminent domain, it is probably advisable to have an attorney from the beginning this complicated process. PennEast is just a buyer in a real estate transaction–it is trying to get the most value at the lowest price — and it has all of the power in the negotiation. Anything you say or any information you reveal in the process may be used to decrease the value of your property. If you are not aware of all of the compensation options and all of your rights, you may not be able to prevent the condemnation or receive the most money for your property that is taken. PennEast not obligated to look out for the property owner’s best interest; it only has to make sure you are “fairly” compensated. Keep in mind that fair compensation could be at the bottom of market rates. A lawyer that is experienced in eminent domain can help you get the best price and ensure you are compensated to the full extent of the law and your rights.

Stark & Stark’s condemnation and eminent domain attorneys have substantial experience litigating the government’s right to take private property including negotiating and litigating gas pipeline cases. The Condemnation & Eminent Domain Group has extensive experience in real estate valuation and works closely with outside professionals such as appraisers, engineers and planners in order to present compelling expert testimony to the jury or judge.

from New Jersey Law Blog http://ift.tt/2xMkS2V
via IFTTT

Addressing Harassment Issues in Community Associations

Community Association Board of Directors Powers:

As is well understood, Community Association Boards are elected to manage the property, affairs, and business of the Association. The Board has the power to enforce obligations of the unit owners and do what is necessary and proper for the management of the community. This includes enforcing the Association’s Governing Documents. If a violation occurs, the Board generally has the power to assess penalties.

Typical violations concern parking issues, storage of property in common areas, failure to comply with fireplace and dryer vent cleaning requirements, violation of pet restrictions, and similar issues.

However, sometimes unexpected egregious behavior, in the form of harassment, occurs. While unit owners and residents may express their opinions and communicate with Board members and Association representatives about community business, harassment has become a growing problem in community associations, with owners offensively addressing managers, board members, vendors, and other residents and owners. As a result, boards are more frequently establishing policies to address communications that constitute harassment. That policy can require that:

1. Communications are conducted in a manner that does not constitute harassment of the Association’s employees, property managers, vendors, directors, and related individuals.
2. Unit owners and residents do not exhibit conduct against Association representatives that constitute harassment whether at meetings, on site offices, on common property, or otherwise.

Boards should consider adopting or amending a Policy Resolution to address harassment. Such Resolution should address untoward, disruptive, and inappropriate communications between residents, unit owners and board members. Harassment can be defined so as to substantially mirror N.J.S.A. 2C:33-4 as follows:

A person commits a petty disorderly person’s offense if, with the purpose to harass another, he does any of the following:

1. Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm. Such communications may be deemed to have been made either at the place where it originated or at the place where it was received.
2. Subjects another to striking, kicking shoving or other offensive touching, or threatens to do so.
3. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
4. Acts with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity.

Additionally, a unit owner or resident commits harassment by failing to come to order when requested at a Board or member meeting.

Certainly, the specifics of any policy, rules or regulations promulgated by an Association must comply with applicable federal, state, and local laws and regulations.

Additionally, procedures should be established to verify the incident and describe the steps to be taken to address alleged violations. The owner must be provided notice of the alleged violation as well as the consequences arising therefrom. Additionally, the alleged violator must be offered the opportunity to participate in the Association’s Alternative Dispute Resolution Procedure.

Lastly, Associations have frequently determined that harassment violations can, and often do, affect the health and safety of the Association as a whole. As such, Boards have been authorized to impose enhanced fines and sanctions, with such fines oftentimes far exceeding the fines levied for more routine violations. Sanctions have included suspension of membership privileges, restricting forms of communications by the resident to the Association, as well as the enhanced monetary sanctions mentioned above.

Of course, Boards should consider seeking legal advice in drafting an effective policy regarding harassment and establishing the procedures and consequences when addressing harassment allegations.

from New Jersey Law Blog http://ift.tt/2wQ0kdq
via IFTTT

Recent Lawsuit Shows Importance of Knowing Your Miranda Rights

It is a near certainty that you have heard the Miranda Rights being read before. It’s in almost every crime procedural that fills up primetime TV. It starts with “You have the right to remain silent, anything you say can and will be used against you in a court of law.” It’s part of the basic foundation on which all police interaction is based. Understanding the Miranda Rights is an incredibly important part of protecting yourself and your family. It means choosing what and when you say to help your cause. Often it means not saying anything until you have found legal representation. 

A Retreat From the Third Circuit’s Misguided Class Action Ascertainability Doctrine, and a Wise Concurrence by Judge Fuentes

City Select Auto Sales, Inc. v. BMW Bank of North America Inc., ___ F.3d ___ (3d Cir. 2017).  Judge Scirica, who wrote the Hayes and Carrera opinions that form the backbone of the Third Circuit’s ascertainability doctrine in class action cases, authored this opinion for the Third Circuit.  The case arose under the Telephone Consumer […]

The post A Retreat From the Third Circuit’s Misguided Class Action Ascertainability Doctrine, and a Wise Concurrence by Judge Fuentes appeared first on Appellate Law NJ Blog.

from Appellate Law NJ Blog http://ift.tt/2v9JTZ5
via IFTTT

Municipal Planning and Zoning Boards Lack Power Over State University Development Proposals

Montclair State University v. County of Passaic, ___ N.J. Super. ___ (App. Div. 2017).  The Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., places responsibility for development applications within a particular municipality in the hands of a Planning Board and/or a Zoning Board of Adjustment.  There can also be a role for a County Planning […]

The post Municipal Planning and Zoning Boards Lack Power Over State University Development Proposals appeared first on Appellate Law NJ Blog.

from Appellate Law NJ Blog http://ift.tt/2xdt0dy
via IFTTT