In re Adoption of Monroe Tp. Housing Element and Fair Share Plan, ___ N.J. Super. ___ (App. Div. 2015).  Many intermediate appellate courts frequently issue opinions that affirm on the basis of rulings by trial level judges.  New Jersey’s Appellate Division, despite being one of the busiest intermediate appellate courts in the United States, does so only infrequently.  Today, in a Mount Laurel case, an Appellate Division panel consisting of Judges Fisher, Espinosa, and Rothstadt did just that, affirming “substantially for the reasons set forth in Judge Douglas K. Wolfson’s well-reasoned and comprehensive opinion.”  The opinion of Judge Wolfson [Disclosure:  Judge Wolfson and I were partners at Greenbaum Rowe, my former firm] was also designated for publication, and is available here. read more

Freedman v. Sufrin, ___ N.J. Super. ___ (App. Div. 2015).  This opinion by Judge Fisher today involved the proper interpretation of a restrictive covenant that purported to restrict the removal of trees from plaintiffs’ property.  The covenant, one of several contained in a deed from defendants to a developer of the property who long preceded plaintiffs in the chain of title, stated that “[a]ny home constructed on the property shall retain as many trees, shrubs, understory plant life as possible.”  That covenant (and others not relevant here) were to “continue until such time as the sellers, Murray N. Sufrin and Ellen Sufrin, reside at [the abutting property].” read more

Sixty-five years ago today, on November 20, 1950, the Supreme Court decided Fischer v. Bedminster Tp., 5 N.J. 534 (1950).  That opinion, written by Justice Heher, contains one of the earliest and best post-1947 Constitution expositions of the action in lieu of prerogative writs, which is a staple in municipal land use and other types of cases. read more

Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., ___ F.3d ___ (3d Cir. 2015).  The number of different issues that judicial opinions present never ceases to amaze.  This appeal, which involved questions of antitrust standing and Noerr-Pennington immunity, presented what is known as the “voting paradox.”  Judges Fuentes, Ambro, and Greenberg were so divided on the issues that, depending on which issues were addressed in what order, the result would be entirely different, with plaintiff winning under one scenario (the path that the panel ultimately took) and defendant prevailing under the other scenario.  The judges could not even achieve unanimity as to how to unravel that paradox, which results from the difference between “issue voting” and “outcome voting.” read more

Sheet Metal Workers Local Union 22 v. Kavanagh, ___ N.J. Super. ___ (App. Div. 2015).  This opinion by Judge Currier today addressed an appeal by defendant, a former member of the plaintiff labor union, of a $115,000 fine for violations of the union’s constitution.  The Law Division had granted summary judgment to the union, upholding the fine and rejecting numerous arguments by defendant.  On appeal, Judge Currier upheld the finding below that defendant had violated the constitution, rejected most of defendant’s contentions as unworthy of discussion, disagreed with two arguments that were worth of being addressed, but remanded for reconsideration of the amount of the fine. read more

In re Implementation of L. 2012, c. 24, ___ N.J. Super. ___ (App. Div. 2015).  The Solar Act of 2012 (“the Act”), chapter 24 of the Laws of 2012, amended prior legislation to encourage the installation of solar energy projects on contaminated sites (known as “brownfields”) that might otherwise remain unproductive, while discouraging such development on farmland and open space.  Millenium Land Development, the contract purchaser of land most recently used as an apple orchard, applied to the Board of Public Utilities (“BPU”) under subsection (t) of the Act to develop a solar power generation project on the property.  Subsection (t) affords subsidies and other benefits to applicants who seek to build solar facilities on brownfields, and Millenium claimed that its property was a brownfield because agricultural pesticides had been used there, allegedly leaving lead and arsenic in the soil. read more

Ippolito v. Ippolito, ___ N.J. Super. ___ (App. Div. 2015).  This opinion by Judge Fisher today involved an appeal from a summary contempt proceeding.  Counsel for plaintiff in this matrimonial case wrote a letter to the Family Part judge handling the matter and accused defendant of violating a court order that prevented defendant from “threatening or intimidating any expert in this matter.” read more

Bacon v. New Jersey State Dep’t of Education, ___ N.J. Super. ___ (App. Div. 2015).  Many of us know about so-called “Abbott school districts,” districts in economically distressed urban areas that are named for the Abbott v. Burke cases, which have challenged New Jersey’s method of school funding as unconstitutionally insufficient as applied to those urban districts.  But there is another group of “rural and property-poor” school districts, the Bacon districts, which have likewise asserted that their students have been deprived of a “thorough and efficient” education in violation of the constitution. read more