NJLM Position on Governor’s Proposed FY 2020 Budget

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The following letter was sent to the Chairs of the Senate and Assembly budget committees, with copies to all members. These are the League’s concerns with Governor Murphy’s proposed budget.

 

Dear Senator Sarlo and Assemblywoman Pintor Marin:

As you review the Governor’s proposed FY 2020 budget and put together a final Appropriations Act, please consider the impact that your decisions will have on New Jersey municipalities and local citizens and businesses. From our perspective, municipal property tax relief funding is of paramount importance.

We thank the Governor for an appropriate increase in Transitional Aid and appreciate the end of the  diversions from the Affordable Housing Trust Fund (a $59 million restoration), and on Clean Energy ($70 million) funding programs. More needs to be done to address the affordable housing crisis in New Jersey municipalities. But this is a welcome first step toward the State reentering the playing field to develop a statewide, rational housing policy.

Unfortunately, the proposed budget does not seek to end the diversion of Municipal Property Tax Relief, as well.

Regarding that, the Governor has proposed level funding for combined Energy Tax and Consolidated Municipal Property Tax Relief Assistance (CMPTRA) property tax relief. After 10 years of reduced relief, we had hoped to see these funding sources restored to their previous levels.  If the Governor’s proposal is not changed, FY 2020 funding for Energy Tax and CMPTRA property tax relief will be $190 million lower than it was before the Recession of 2008. And if the $71 million shift, which occurred between 2015-2018, from Transitional Aid to CMPTRA, is discounted, the statewide gap grows to over $260 million.

The Energy Tax and CMPTRA are all municipal revenue replacement programs. They are not, properly speaking, State aid. They were not meant to make things better for municipal property taxpayers. They were only intended to keep things from getting worse. But things have gotten worse, since the State slashed funding in the years after the 2008 financial collapse.

In 2007, NJ municipalities divided $1.63 billion in general property tax relief distributions. On average – and no town is average – that was about $2.9 million, per town. It worked out to about $188, per capita. For 2020, the Governor asks for only $1.44 billion in municipal property tax relief. $190 million less than was distributed before the Great Recession. On average, that would be about $2.5 million, per town, or about $161, per resident.

After over a decade of this failure to honor the State’s statutory promise to local taxpayers, the time has come to recognize the fact that there is a connection between property tax relief funding and property tax relief.

That connection is obscured by the continuation of last year’s decision to open the ETR ‘lock box,’ which has always been funded through taxes (Sales and Corporate) levied on energy suppling utilities. Instead, the budget would, again, deliver level funding with Income Tax dollars. This ‘accounting change’ shakes the foundations of the Energy Tax Receipts Property Tax Relief Fund (ETR), which, for more than twenty years, has delivered reliable and significant property tax relief to municipal home- and business-owners, all around our Garden State.

We want to commend a couple of other initiatives that the Governor mentioned in his speech or that are, otherwise, included in the proposed Budget. Negotiated public employee health benefit reforms are projected to provide a total of $400 million in savings, for local employers participating in the State Health Benefits Program or the School Employees’ Health benefits Program.  We are anxious to learn more about how these savings are to be achieved.

Further, we appreciate that the budget would allocate $2 million for outreach for the 2020 Census. And, in addition to $9.8 million in Federal funding, the State will put $10.8 million toward election access and security.

In addition to our advocacy on the matters already mentioned, League members must ask for a permanent fix to the telecommunications business personal property tax problem that costs more communities more tax revenues every year. The problem began in 2008, when Verizon informed a handful of municipalities that it had decided to exempt itself from payment of taxes on all of the cables and electronic equipment it houses in local switching stations. In the years that followed, similar decisions by Verizon have led to cases affecting taxpayers in hundreds of other New Jersey municipalities.

After a court case that dragged on for 10 years, Hopewell Borough finally prevailed over Verizon. But that win only required Verizon to meet its obligations to the citizens of Hopewell for one year. And we have recently learned that Verizon has appealed even that. Absent legislative action, every effected municipality will be faced with mounting legal bills in every year that Verizon claims an exemption.

A few years ago, Senator Smith and Assemblyman Caputo introduced legislation that would address this matter. We hope to see remedial bills again this year. And we hope, this time, to see them passed.

We would welcome the opportunity to meet with you, or any other members of the Senate Budget and Appropriations or the Assembly Budget Committee, to discuss our concerns with the proposed budget. Please ask your staff to contact Michael Cerra, the League’s Assistant Executive Director, to make the arrangements.

Thank you for your consideration.

Contacts: Jon Moran, Sr. Legislative Analyst, jmoran@njlm.org, 609-695-3481 x121.

Mike Cerra, Assistant Executive Director, mcerra@njlm.org, 609-695-3481 x120.

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Breaking Down the Cannabis Legislation, Part 3—Expungement

correct size blogThis is the 3rd in a series of posts which focus on particular sections and provisions of interest to local governments in S2703, legislation which will legalize the adult use of recreational cannabis.

In addition,  please see Part I on local taxation and Part II on Part II on Local Regulations and Ordinances.

On March 25, legislators were set to vote on S-2703, which would legalize the adult use of recreational cannabis. However, after it appeared that there were not enough votes to approve the bill, legislative leaders called off the vote.  While no vote took place as intended, Governor Murphy continues to make a push for marijuana legalization.  And, reports have the Governor setting a May deadline for a vote on recreational cannabis before he takes executive action to expand medical use.

With the recreational cannabis not going away though currently  stalled, we continue our examination of the proposed legislation.  In this 3rd installment of our series of posts the expungement provisions of the bill are reviewed. Please note that our review is based on the bills as currently drafted and are subject to change prior to being brought for a full vote.

Section 44 through 51, Expungement, Pages 123-134.

Link: https://www.njleg.state.nj.us/2018/Bills/S3000/2703_U1.PDF

Section 44 – Dismissal of Small Amount of Marijuana and Hashish Cases

This portion of the bill would dismiss all matters currently within the court pipeline, related to small amounts of marijuana or hashish.  This is achieved by removing all jurisdiction from all courts over any charge, including any charge of delinquency, based on a violation of the certain laws occurring prior to the passage of the bill.  These certain laws include:

1)      NJSA 2C:35-5(b)(12) – Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound.

 

2)      NJSA 2C:35-10(a)(4) – Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish.

 

3)      NJSA 2C:36-2 – Use or possession of drug paraphernalia related to marijuana or hashish

These non-prosecutable charges and cases shall be expeditiously dismissed, either by appropriate action by a law enforcement agency, or on a motion to the court with jurisdiction over the case, or the courts own motion, based upon guidelines or directives issued by the Attorney General and the Administrative Office of the Courts.

Section 45 – Arrests, charges, convictions, and adjudications of delinquency, deemed not to have occurred.

This provision of the bill provides for what has been termed, “virtual expungements.”   Since there is no automatic expungement provided for in the bill, this section is intended to provide an alternative.   It authorizes anyone convicted of marijuana related crimes the legal authority to act as though those matters never occurred.  This would include legal documents such as those for loans, job applications, and others.

This section requires that all previous, non-violent arrests, charges, convictions, and adjudication of delinquency that occurred prior to the effective date of the bill for:

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound,
  • Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish, or
  • Use or possession of drug paraphernalia related to marijuana or hashish,

shall be deemed not to have occurred and the person involved with that violation may answer any questions relating to their occurrence accordingly.  There is an exemption however which requires such information be revealed when seeking employment with the judicial branch or with a law enforcement or corrections agency.

Concerns have been raised about expungements for offenses up to 5 pounds.   It is our understanding that this is because a 3rd degree offense includes possession from anywhere from one ounce to five pounds.    So, an offense may not indicate the amount that was found on a person, but is rather identified as a 3rd degree offense.

Section 46 & 47 – Impact of previous convictions for now lawful activity on qualification to submit an application for expungement for indictable offenses; and disorderly persons or petty disorderly persons offenses.

An overview of the expungement process is necessary before fully understanding the impact S-2703 would have on applications for expungement.  Generally speaking an individual who has been convicted of an indictable offense can seek to have their record expunged after a period of six years from the time of their most recent conviction. The applicant for expungement must also have kept out of trouble with the law.  The person does not have to be perfect to seek expungement but having too many prior or subsequent convictions for crimes and/or disorderly or petty disorderly persons offenses may prohibit eligibility for expungement.

In essence, what S-2703 would do is redefine certain crimes to now to be considered disorderly person offenses, and would consider convictions for certain disorderly person offenses to no longer be considered a conviction.  This would in turn eliminate certain “strikes” for marijuana and hashish related offenses that would otherwise preclude an applicant from being eligible for expungement.

The following crimes or their equivalents in other jurisdiction shall no longer be considered a crime in NJ for purposes of seeking expungement; instead they are now downgraded to a disorderly persons offense.

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound, including when these actions occurred within 1000 feet of a school zone or 500 feet of a public housing, public park, or public building.
  • Possession of more than 50 grams of marijuana or more than 5 grams of hashish.

The following, instead of being disorderly persons offenses, now, shall not be considered a conviction.

  • Possession of 50 grams or less of marijuana or five grams or less of hashish, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish.

Section 48 – Expedited Expungement

This section creates an expedited expungement process that can be used immediately without having to wait out the six year period or other waiting period otherwise provided for the expungement process. Those eligible for expedited expungement include any person charged with, convicted of, or a minor adjudicated as a delinquent for:

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound including when these actions occurred within 1000 feet of a school zone or 500 feet of a public housing, public park, or public building.
  • Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish, or
  • Use or possession of drug paraphernalia related to marijuana or hashish in connections with any of the above.

There is no fee for those seeking an expedited expungement.

After review of the application for expedited expungements the court would be required to immediately grant the expungement.

Further, expedited expungements would eliminate certain procedural requirements currently needed for expungements, including; a statement, and serving of notice on the law enforcement agency (including municipal police) involved with the associated arrest.

The county prosecutor may file an action with the court seeking to vacate an expedited expungement if filed no later than 45 days after the expungement order is issued. The expedited expungement can only be vacated upon proof shown by the county prosecutor that the expungement was issued in error due to other statutory disqualifications for expungement.

S-2703 provides for immunity both criminally and civilly, in addition to other immunity (i.e. Torts Claims Act) to any public employee or entity that provides information or records for any action made in good faith when participating or assisting with an expedited expungement.

Section 49 – Administrative Office of the Courts (“AOC”) to provide information on expungement practices.

The AOC would be required to provide information to any person on the expungement process and provide them with information on legal service programs within the state and in each county which may assist with the expedited expungement process.

Section 50 – Public Awareness Campaign

The AOC would be required to develop and maintain a multilingual public awareness campaign to promote the expedited expungement program and the electronic expungement system which it is also mandated to create.

Section 51 – Development and maintenance of a System for submitting Petition for Expungement, Electronically.

Within 9 months after the effective date of the bill the AOC would be required to create and maintain a system for petitioners to electronically file expungement petitions.

Parties who are required to be noticed whenever an expungement petition is filed (municipal law enforcement that made the arrest) would now be able to receive notice electronically.

Within one year after the implementation of the e-filing system, the AOC would be required to issue a report with possible recommendations or suggestions for improvement to the e-filing system or the expedited expungement program itself.

Contact:  Michael F. Cerra, Assistant Executive Director, mcerra@njlm.org, or 609-695-3481 x120,  or

Frank Marshall, Esq., fmarshall@njlm.org; 609-695-3481 x137.

Breaking Down the Cannabis Legislation, Part 2 – Local Regulation

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correct size blogUpdate:   On March 25, these bills were HELD from a vote because of a lack of necessary support for passage.    The legislation could be rescheduled in May.

This is the 2nd in a series of posts which will focus on particular sections and provisions of interest to local governments in S2703, legislation which will legalize the adult use of recreational cannabis.   The legislation is scheduled for final votes by the Senate and Assembly on Monday, March 25, though the final outcome is far from certain.

 

 

Section 22, Local Government Entity Regulations or Ordinances, Pages 56-58.

Link: https://www.njleg.state.nj.us/2018/Bills/S3000/2703_U1.PDF

This section authorizes municipalities to enact regulations governing the time of operation, location, manner and the number of cannabis establishments, as well as establish civil penalties for the violation of such ordinances and regulations.

A municipality may prohibit any one or more classes of cannabis licenses throughout the municipality, even if the municipality is within regions such as the Highlands, the Meadowlands or the Pinelands. In other words, a municipality could adopt an ordinance prohibiting retail establishments but permit cultivation operations.

On page 57, lines 11-14 it reads, “Only an ordinance to prohibit one or more classes of cannabis establishment enacted pursuant to the specific authority to do so by this section shall be valid and enforceable.”

Thus, any existing ordinances banning commercial marijuana sales or transactions will be null and void and the municipality will need to adopt a new ordinance to do so, which should reflect and reference this section of the law.

Municipalities will have 180 days from the effective date of the Act to opt out, by ordinance, of any one or all licenses.     The League will prepare and make sample ordinance language that can be altered for your specific purposes.

To illustrate:

 

OPT-OUT Deadlines/Timeframe Consideration/Reconsideration
180 days to pass ordinance to opt out of any one or all class or classes of the business. Can “opt in” at any time.
After 5 years, need to act again, either to pass again the same ordinance or to amend accordingly.

 

 

OPT IN Deadlines/Timeframe Consideration/Reconsideration
Take no action within 180 days of the Act Permitted Use in all industrial zones:  growing, cultivating, processing and selling and reselling of cannabis and cannabis items by a grower, processor or wholesaler;

 

Conditional Use in commercial or retail zones, subject to meeting conditions set forth in local zoning ordinance or upon granting of a variance:   retails sales.

Cannot reconsider until 5 years, when municipality may choose to opt out of one or more licenses; existing license holders grandfathered.
Nothing in bill prevents municipality opt in by ordinance;   such action may be preferred to assess local conditions and opinions.

It is our understanding and that if you opt out within 180 days of the effective date of the Act, you may opt in later by ordinance.

When the State regulatory commission receives an application for initial licensing or a renewal for any cannabis establishment or an endorsement for a cannabis consumption area, it shall notify the municipality within 7 days of the application, unless the municipality has already prohibited the class of license.       In turn the municipality must determine and inform the Commission if the application complies with the local regulations regarding time, location, and manner of operations and number of establishments.

The bill language also clarifies that the municipality may impose a local license requirement or endorsement requirement.

If and when this legislation becomes law,  we would recommend a review of your zoning ordinance to make sure they comport with the opt-out/in provisions.

Section 82, Cannabis Consumption Area,  Pages 170-175

Link: https://www.njleg.state.nj.us/2018/Bills/S3000/2703_U1.PDF

A municipality may authorize, by ordinance, the operation of locally endorsed cannabis consumption areas by a cannabis retailer or an alternative treatment center for onsite consumption of personal/medical use cannabis.

Such an area may be indoor or outdoor, provided it meets the statutory criteria as defined through Section 82.

A local cannabis consumption area may not be allowed within 1,000 feet of a boundary with an adjoining jurisdiction that does not permit retail cannabis.

The State Commission may only issue an endorsement after receipt of written approval of the local government.

Contact:

Michael F. Cerra, Assistant Executive Director

mcerra@njlm.org; 609-695-3481 x120

Breaking Down the Cannabis Legislation, Part 1 – Local Cannabis Tax

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correct size blogUpdate:   On March 25, these bills were HELD from a vote because of a lack of necessary support for passage.    The legislation could be rescheduled in May.

This is the first in a series of posts which will focus on particular sections and provisions of interest to local governments in S2703, legislation which will legalize the adult use of recreational cannabis.   The legislation is scheduled for final votes in both the Assembly and Senate on Monday, March 25.

According to press accounts, however, final passage is far from certain.

 

Section 21.  Local Cannabis Taxation; Local Cannabis Transfer Tax and User Tax, Pages 54-56.

Link: https://www.njleg.state.nj.us/2018/Bills/S3000/2703_U1.PDF

This section authorizes municipalities to adopt ordinances imposing a “transfer tax” on cannabis sales on licensed cannabis establishments (see definition in Section 3, page 4, lines 13-16).

Municipalities may enact a local tax up to:

  • 2% of the receipts from each sale by a cannabis grower, cultivators (Class 1 license);
  • 2% of the receipts from each sale by a cannabis  processor (Class 2 license);
  • 1% of the receipts from each sale by a cannabis  wholesaler (Class 3 license);  and/or,
  • 3% of the receipts from each sale by a cannabis retailer (Class 4).

Thus, the municipality may enact the appropriate transfer tax on any of the licensed cannabis establishments located in the municipality.

These taxes are in addition to the State cannabis excise tax of $42 per ounce.  Please note that no local transfer/user tax can be imposed on medical marijuana.

Per Section 22 (starting on page 56, which will be subject of a later post), the municipality may prohibit any or all of the 4 licenses within 180 days of the effective date of the Act.

For those who do not opt out, the local tax ordinance shall also include provisions for imposing a user tax, at the equivalent rate(s) set by the municipality, on any “concurrent license holder…operating more than one cannabis establishment.”   This language clarifies earlier concerns about the tax on businesses that holds more than one license within the municipality, commonly referred to as a vertically integrated operation.

Receipts from the transfer and user taxes shall be remitted by the cannabis establishment directly to the Chief Financial Officer of the municipality, in a matter proscribed by the municipality.

If there is nonpayment of the transfer/user tax, then the unpaid balance and accrued interest shall be a lien in the same manner as other unpaid municipal taxes, fees and charges.

Contact:

Michael F. Cerra, Assistant Executive Director

mcerra@njlm.org; 609-695-3481 x120

Public Private Partnerships – P3s

As of February 10, 2019, municipalities are permitted to enter into public-private partnership (P3) agreements with a private entity to assume full financial and administrative responsibility for a project of or for the benefit of the local unit. P.L. 2018, c. 90 permits public-private partnership agreements with municipalities, counties, school districts, county colleges, state colleges, New Jersey Institute of Technology, and the State for roads, infrastructure and buildings. The law outlines a public process for P3 agreements and requires State review and approval process.

A P3 is a contractual agreement between a public agency and a private entity that allows for greater private sector participation in the delivery and financing of a project. P3’s are not privatization, as the public agency retains ownership of the assets.

The new law permits a P3 agreement for development, construction, reconstruction, repair, alteration, improvement, extension, operation, and maintenance of any building, local or county road, vertical structure, or facility constructed or acquired by a local government unit and to operate local government functions, including any infrastructure or facility used or to be used by the public or in support of a public purpose or activity.  The law also allows for a P3 agreement for a lease of a revenue-producing public building, road, structure, infrastructure, or facility in exchange for up-front or structured financing by the private entity for the project.

Any public-private partnership project, while not subject to the Local Public Contracts Law, will be subject to the Local Bond Law and will require a Project Labor Agreement and be subject to prevailing wages.

The law outlines two distinct methods in which a public agency may consider a P3 contract.  Either the municipality solicits proposals or qualifications from at least two private entities or receives an unsolicited proposal. For solicitation of proposals, the municipality must advertise at least 45 days on their website and at least one or more newspapers with statewide circulation.  The request for proposals must include relevant technical submissions, documents, and evaluation criteria. The State Treasurer, through rulemaking, will establish the minimum standards of the evaluation criteria.

For unsolicited proposals, if the municipality determines that the proposals meet the standards required by law, they must publish a notice of the receipt of the proposal on their website and in at least one or more newspapers with statewide circulation as well a notice at their next scheduled public meeting and to the State Treasurer. To qualify the unsolicited proposal must at a minimum include a description of the project, the estimated construction and life-cycle costs, a timeline for development, proposed plan of financing, including projected revenues, public or private debt, equity investment, description of how the project meets needs identified in existing plans, the permits and approvals needed to develop the project from local, state and federal agencies and a projected schedule for obtaining such permits and approvals, a statement of risks, liabilities and responsibilities to be assumed by the private entity.

Prior to submitting any proposal to the State Treasurer for review and approval, all projects must have a public hearing. The public hearing notice must prominently state the purpose and nature of the proposed project.  The notice must be no less than 14 days prior to the public hearing and be published on the municipal website and at least once in one or more newspapers with statewide circulation. At the public hearing the municipality must find that the project is in the best interest of the public by finding (i) it will cost less than the public sector option, or if it costs more there are factors that warrant the additional expense; (ii) there is a public need for the project and the project is consistent with existing long-term plans; (iii) there are specific significant benefits to the project; (iv) there are specific significant benefits to using the public-private partnership instead of other options including No-Build; (v) the private development will result in timely and efficient development and operation; and (vi) the risks, liabilities and responsibilities transferred to the private entity provide sufficient benefits to warrant not using other means of procurement.

After the proposal or proposals have been received, and any public notification period has expired, the public agency must rank the proposals in order of preference. In ranking the proposals, the public agency must rely upon, at the minimum, the evaluation criteria established by the State Treasurer.  In addition, the public agency may consider factors that include, but may not be limited to, professional qualifications, general business terms, innovative engineering, architectural services, or cost-reduction terms, finance plans, and the need for local government funds to deliver the project and discharge the agreement.

Please note that the public agency may require, upon receipt of one or more proposals, that the private entity assumes responsibility for all costs incurred by the local government unit before execution of the public-private partnership agreement, including costs of retaining independent experts to review, analyze, and advise the local government unit with respect to the proposal.

The League supported this new law as it provides a unique option for municipalities looking to develop, construct, repair, alter, improve, or maintain any public building, road or another municipal facility while providing appropriate oversight.

For more information please see recent NJ Municipalities magazine articles providing greater details on P3 generally (February) and Municipalities and P3 (March).

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njlm.org , 609-695-3481, x112.

Bill Requiring the Release of the Bidders’ List Advances

correct size blogOn Thursday the State Senate will be considering S-2947, which would require municipalities, counties and local authorities to release the names, upon request, of all parties who have received bid documents prior to the bid opening once three or more bid packets have been received by parties.  The release of the bidders’ list would have to be made available in a timely manner in accordance with the Open Public Records Act.  In addition, municipalities will have the option to post the list on their websites.  However, failure to release this information would prohibit a municipality from accepting the bids and require the re-advertisement for bids. The League strongly opposes S-2947.

First and foremost, we are concerned that the release of the bidders’ names prior to the receipt of bids could lead to collusion and bid rigging.  We agree with the Appellate Division’s decision in O’Neill Electric Co., Inc. v. the Board of Chosen Freeholders of the County of Warren, 297 N.J. Super. 473 (App. Div. 1997).  In that case, the Appellate Division stated that “access to a bidders list facilitates collusive or bid-rigging arrangements and that withholding disclosure makes this more difficult.”  Id. at 480.  The Court went on to say that bid-rigging is an “extremely serious problem which costs the public enormous sums of money.  The relatively insignificant interest of plaintiff and amici in obtaining bidders lists cannot overcome the grave danger to the public resulting from a failure to keep the door tightly closed to potential corruption in public bidding.”  Id.  We are concerned that potential bidders may be dissuaded from bidding on a project based on the bidders who have picked up bid specifications or may change their pricing based on who the competition is on the project versus what competitive bid price for the project.

Second, we are concerned that the bill as drafted requires a municipality to create and maintain a new record.  Presently, the Local Public Contracts Law does not require a municipality to create or maintain such a record.  In fact, the only reason a bidders’ list is maintained is to create a centralized list in case there are addenda to specifications for bids or proposals.  A municipality does not have to create a centralized list, if it so choose, it could collect the business cards of potential bidders or use the information on checks submitted to pay for the bid packets.

Finally, we are concerned with the benchmark of “three or more bids” before the release of the bidders’ list.  We believe that this arbitrary benchmark will lead to costly litigation.  For example, if a person only requests a copy of the bidders’ list but at that time only two bid packets have been released and twenty minutes later a third person obtains a bid packet, the legislation is unclear as to the municipality’s obligation to the person who first requested the list.   There are a number of other scenarios that we could cite that make this provision problematic.

Contractors have long argued that release of the bidders’ list may force contractors to “sharpen their pencils.” We question why can’t these “pencils be sharpened” regardless of the number of bidders or who is bidding on the project.  Shouldn’t potentially responsible bidders be submitting their lowest prices in all their bids?

Subcontractors have longed argued that the release of the bidders’ list before submission of the bids would provide them with an opportunity to solicit potential bidders to work with them on the project. While we do not disagree that subcontractors benefit from knowing who is bidding on a project we strongly question if a general contractor is going to hire a subcontractor for a government contract based on a “cold call”.  In our experience we have found that general contractors tend to have a long-standing relationship with the subcontractors that they use for public contracts. The release of the bidders’ list after the submission of bids provides the subcontractors the opportunity to develop those relationships with the general contractor.

We firmly believe that the public bidding process should be open and competitive.  The names of bidders are routinely released after a bid opening.  We are troubled with releasing the list prior to a bid opening because it has the potential to limit competition, which can drive up costs for taxpayers and create an environment that could possibly lead to bid rigging and collusion.

Contact: Lori Buckelew, Sr. Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

Senate to Vote on Bill Giving Control of Vegetation Management in ROW to Utilities

correct size blogFebruary 1 Update:  We are pleased to report that this bill was held and not voted on by the State Senate on January 31.    We will continue to advise of developments. 

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On Thursday (January 31), the Senate is scheduled to vote on S-2505, known as the, “Vegetation Management Response Act.”   S-2505  would provide electric utility companies completely unfettered authority to clear, move, cut, or destroy any dangerous vegetation. While we appreciate the sponsors’ intentions and appreciate amendments which now require notice of vegetation management work be made to municipal governments and property owners, the League remains opposed to this bill.

The approach taken in this legislation is unnecessarily broad and overreaching, and removes local governments’ ability to plan and manage vegetation in the right-of-way. While S-2505 seemingly limits what vegetation a public utility can address to only “dangerous vegetation,” that term is unnecessarily broad to the point of near total inclusion of all vegetation.

As defined within the bill, “dangerous vegetation” would include any “vegetation growing in, near, or adjacent to the electric public utility’s right of way, and the electric distribution and transmission system…which may fall into, touch, affect, or otherwise interfere with an electrical distribution line.” This would seemingly include any vegetation on either public or private property and gives public utilities sole discretion to determine what meets the criteria of “dangerous vegetation.” The utility is also under no requirement to receive any input from the public before the utility can unilaterally choose to clear, move, cut, and destroy to remove or replace the vegetation.

We need your assistance to ensure that state legislators hear the concerns of municipal leaders. We are asking that you please contact your state representatives to let them hear your concerns with allowing electric utilities to have total control of the vegetation in your municipal rights-of-way. Your legislator’s contact information can be found using the state’s website which breaks this information down by municipality.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695- 3481 x 137.

Bill Seeks to Impose Examination and Certification Requirements on Zoning Officers and Land Use Board Administrators

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correct size blogIn late November of last year, Assemblywoman Vainieri Huttle introduced A-4725 which has been referred to the Assembly State and Local Government Committee but not yet scheduled for a hearing.  This bill would establish an examination and certification program for zoning officers and land use board administrators and would create additional State oversight of the profession.  This bill is similar to those introduced in the past (A-2116 in 2006 and A-3462 in 2008) which the League opposed.

While the League endorses continuing education for appointed and elected officials, we have concerns that new requirements proposed in A-4725 are unnecessary, bureaucratic and infringe on local discretion.  We also believe that the bill may impede efforts to deliver this function via an interlocal service agreement.

The League is in discussion with the sponsor and other interested stakeholders in an effort to find common ground on amendments to address our concerns.  However, until appropriate amendments are made we must remain opposed to A-4725.

Among other things, A-4725 would do the following:

  • Provide the DCA with authority to review and possibly disallow municipal shared service agreements pertaining to zoning officers and land use board administrators,
  • Require the Department of Community Affairs (“DCA”) to establish a certification program for zoning officers and land use board administrators,
  • Prohibit anyone from being appointed, reappointed, or continuing employment as a zoning officer or land use board administrator unless that person holds a certificate issued by the DCA,
  • Make obtaining a certificate from the DCA a condition of employment for zoning officers and land use board administrators,
  • Require anyone seeking a certificate to be a zoning officer and/or land use board administrator to:
    • Be at least 21 years of age,
    • Have obtained a high school diploma or equivalent,
    • Have completed at least two years of education at a college of recognized standing (with possible exceptions based on experience),
    • Have completed the course of study in planning and zoning administration and enforcement developed by the DCA (40 hours for initial certification and 20 hours every 3 years for renewal),
    • Pay a $50 fee to the State.
  • Define land use board administrator to include the administrative secretary of a municipal planning board and zoning board of adjustment.

To be clear, A-4725 does not directly require municipalities to expend funds to cover costs associated with certification and continued education of zoning officers and land use board administrators, however, the practical reality is that this cost will be borne, one way or another, by municipalities.  The certification and continued education requirements as a condition of employment virtually insures this.  Working under a 2% levy cap means that every additional dollar municipalities are required to spend must be taken away from other necessary services.

Contacts:

Michael Cerra, Assistant Executive Director, MCerra@njslom.org or 609-695-3481 x 120.

Frank Marshall, League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x 137.

Court Rules Evidence of Necessity Required for Use of Eminent Domain in Redevelopment

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correct size blogRecently, the Appellate Division issued a ruling in Borough of Glassboro v. Grossman, et al. interpreting key provisions of the Local Redevelopment and Housing Law.  More specifically this published decision examined N.J.S.A. 40A:12A-8(c) which authorizes a municipality or a redevelopment agency to acquire by condemnation lands or buildings which are “necessary for the redevelopment project.”  The question before the court was what shows, if any, of necessity, must a condemning authority make in order to take property within a redevelopment zone?

Ultimately, the court ruled that whenever an attempted condemnation by a municipality or redeveloper is challenged, the condemning authority must articulate a definitive need for the property.  Further, the condemning authority claiming a need for the property must justify its need through supporting proof, the court finding it is not enough to establish necessity simply by stating it.

While acknowledging that evidential possibilities are open-ended, the court provided an illustrative list of ways that necessity could be proven through discrete facts or data, including; reports from a planner, engineer, or traffic consultant; architectural plans or drawings; or a market study or economic forecast.

Additionally, the court specifically rejected the argument that the condemning authority can satisfy the necessity requirement “by simply declaring that it wishes to stockpile a parcel for some possible future need in the redevelopment area.”  Ruling instead, that there must be a particular redevelopment project identified and tied to the proposed acquisition.  Perhaps recognizing that redevelopment projects take time and evolve over that period to include changes in plans, the court clarified that the particular project identified in the original acquisition can be changed after the acquisition occurs, so long as the original taking was justified and pursued in good faith.

You should review this ruling with your municipal attorney for more information on how it will impact your municipality’s potential and current redevelopment projects.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x 137.