Standardized Change Condition Clause in Public Construction Contracts Now Law

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As one town-crier_facebookof his last actions, on January 15, 2018, Governor Christie signed into law S-3409, which establishes standardized changed condition clauses on local public construction contracts.  This new law requires all construction contracts advertised after January 15 to include a change condition provision.

The law addresses four types of change conditions provisions – “differing site conditions”; “suspension of work”; “character of work”; and “change in quantity”.

“Differing Site Conditions”

The law defines “differing site conditions” as the physical conditions at the contract work site that are subsurface or otherwise concealed and which differ materially from those indicated in the contract documents or are of such an unusual nature that the conditions differ materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the contract.

All construction contracts must include the following differing site conditions provisions:

  • If the contractor encounters differing site conditions during the progress of the contract work, the contractor must promptly provide written notification to the contracting unit of the specific differing site conditions encountered before the site is further disturbed and before any additional work is performed in the impacted area
  • Upon receipt of differing site conditions written notice or upon the contracting unit otherwise learning of differing site conditions, the contracting unit must promptly undertake an investigation to determine whether differing site conditions are present.
  • If the contracting unit determines that different site conditions may result in additional cost or delays, the contracting unit shall provide prompt written notification to the contractor containing directions on how to proceed.
    • The contracting unit must make a fair and equitable adjustment to the contract price and contract completion date for increased costs and delays resulting from the agreed upon differing site conditions encountered by the contractor.
    • If both parties agree to the contracting unit’s investigation and directions decrease the contractor’s costs or time, the contracting unit is entitled to fair and equitable downward adjustment to the contract and price
    • If the contracting unit determines that there are no differing site conditions present that would result in additional costs or delays, the contracting unit must notify the contractor, in writing, and the contractor must resume performance of the contract, and be entitled to pursue a differing site conditions claim against the contracting unit for additional compensation or time attributable to the alleged differing site conditions.
  • Contract execution by the contractor constitutes a representation that the contractor has visited the site and has become generally familiar with the local conditions under which the work is to be performed.

Suspension of Work

Contract must include the following suspension of work provisions:

  • The contracting unit must provide advance written notice to the contractor of any suspension of work lasting more than 10 calendar days of the performance of all or any portion of the work of the contract.
  • If the performance of all or any portion of the work of the contract is suspended by the contracting unit for more than 10 calendar days due to no fault of the contractor or as a consequence of an occurrence beyond the contracting unit’s control, the contractor shall be entitled to compensation for any resultant delay to the project completion or additional contractor expenses, and to an extension of time, provided that, to the extent feasible, the contractor, within 10 calendar days following the conclusion of the suspension, notifies the contracting unit, in writing, of the nature and extent of the suspension of work.
    • The notice must include available supporting information, which information may thereafter be supplemented by the contractor as needed and as may be reasonably requested by the contracting unit.
    • Whenever a work suspension exceeds 60 days, upon seven days’ written notice, either party shall have the option to terminate the contract for cause and to be fairly and equitably compensated therefor.
  • Upon receipt of the contractor’s suspension of work notice, the contracting unit must promptly evaluate the contractor’s notice and promptly advise, in writing, the contractor of its determination on how to proceed.
    • If the contracting unit determines that the contractor is entitled to additional compensation or time, the contracting unit must make a fair and equitable upward adjustment to the contract price and contract completion date.
    • If the contracting unit determines that the contractor is not entitled to additional compensation or time, the contractor shall proceed with the performance of the contract work and is entitled to pursue a suspension of work claim against the contracting unit for additional compensation or time attributable to the suspension.
  • Failure of the contractor to provide timely notice of a suspension of work will result in a waiver of a claim if the contracting unit can prove by clear and convincing evidence that the lack of notice or delayed notice by the contractor actually prejudiced the contracting unit’s ability to adequately investigate and defend against the claim.

Change in Character of Work”

The law defines “material change” as a character change which increases or decreases the contractor’s cost of performing the work, increases or decreases the amount of time by which the contractor completes the work in relation to the contractually required completion date or both.

Contract must include the following material change provisions:

  • If the contractor believes that a change directive by the contracting unit results in a material change to the contract work, the contractor must notify the contracting unit in writing. The contractor must continue to perform all work on the project that is not the subject of the notice.
  • Upon receipt of the contractor’s change in character notice the contracting unit shall promptly evaluate the contractor’s notice and promptly advise the contractor of its determination on how to proceed in writing.
  • If the contracting unit determines that a change to the contractor’s work caused or directed by the contracting unit materially changes the character of any aspect of the contract work, the contracting unit must make a fair and equitable upward adjustment to the contract price and contract completion date.  The basis for any such price adjustment shall be the difference between the cost of performance of the work as planned at the time of contracting and the actual cost of such work as a result of its change in character, or as otherwise mutually agreed upon by the contractor and the contracting unit prior to the contractor performing the subject work.
  • If the contracting unit determines that the contractor is not entitled to additional compensation or time, the contractor must continue the performance of all contract work and is entitled to pursue a claim against the contracting unit for additional compensation or time attributable to the alleged material change.

Change in Quantity

The law defines “bid proposal quantity” as the quantity indicated in the bid proposal less the quantities designated in the project plans as “if and where directed.”

Contract must include the following change in quantity provisions:

  • Contracting unit may increase or decrease the quantity of work to be performed by the contractor
  • If the quantity of a pay item:
    • Is cumulatively increased or decreased by 20% or less from the bid proposal quantity, the quantity change is considered a minor change in quantity.
      • The contracting unit must make payment for the quantity of the pay item performed at the bid price for the pay item
    • Is cumulatively increased or decreased by more than 20% from the bid proposal quantity, the quantity change is considered a major change in quantity.
  • For major increase:
    • the contracting unit or the contractor may request to renegotiate the price for the quantity in excess of 120% of the bid proposal.
    • If mutual agreement cannot be reached the contracting unit must pay the actual cost plus an additional 10% for overhead and additional 10% for profit unless otherwise specified in the original bid.
  • For major decrease:
    • The contracting unit or the contractor may request to renegotiate the price for the quantity of work performed
    • If mutual agreement cannot be reached the contracting unit must pay the actual cost plus an additional 10% for overhead and additional 10% for profit unless otherwise specified in the original bid. Provided that the contracting unit does not make a payment in an amount that exceeds 80% of the value of the bid price multiplied by the bid proposal quantity.

The law requires the Division of Local Government Services to promulgate rules and regulations to standardize the forms and procedures for the change conditions process within 90 days.

We suggest you review this new law with your purchasing officials, municipal engineer, and municipal attorney.

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

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Governor Takes Action on Bills of Interest

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correct size blogOn January 8, Governor Christie took action on 42 bills; signing 40 of them into law and vetoing 2.  A recap and summary of action taken on bills of municipal interest are listed below.

Bills Signed Into Law

S-1732/A-2449, sponsored by Senators Cruz-Perez and Allen, Assemblymen Eustace, Gusciora, and Houghtalin, establishes the, “Adopt a Monarch Butterfly Waystation” program. The League supported this bill. Groups, organizations, businesses, and individuals will be permitted to “adopt” portions of State-owned lands to develop and maintain monarch butterfly waystations.  The law provides for a waiver to release all State and local government entities and employees from any liability for injury or damages caused or sustained while developing or maintaining a waystation. The law also permits the DEP, counties, municipalities, and school districts to accept donations of funds, supplies, or services for use in the program. The DEP is responsible for developing the criteria and coordinating the program.  P.L. 2017, c. 250,  took effect immediately. Previous versions of this bill would have allowed DEP to authorize these waystations on municipal property. At our request, the sponsors agreed to delete that provision.

 S-1986/A-2448, sponsored by Senators Cruz-Perez and Cunningham, Assembly representatives Eustace, Pinkin, Gusciora, Houghtaling, and Quijano, establishes the “Milkweed for Monarchs” program in the DEP. The League supported this bill.  Groups, organizations, businesses, and individuals will be permitted to “adopt” assigned state-owned stormwater management basins for the purpose of planting milkweed. The law also permits the DEP, counties, municipalities, and school districts to accept donations of funds, supplies, or services for use in the program.  The DEP is responsible for developing the criteria and coordinating the program.  P.L. 2017, c. 252,  took effect immediately. Previous versions of this bill would have allowed DEP to authorize these programs on municipal property. At our request, the sponsors agreed to delete that provision.

S-2226/A-2776,  sponsored by Senator Diegnan and Assemblymen  Holley, Kennedy, and Wimberly, permits municipalities, by ordinance, to authorize its parking authority to serve as a redevelopment entity. The league supported this permissive legislation. P.L. 2017, c. 253, took effect immediately.

A-856/S-1498,  sponsored by Assembly representatives Quijano, Dancer, Pinkin, Mukherji, McKnight and Senator Madden, requires the removal of equipment and markings on certain used emergency vehicles prior to the sale or transfer of an authorized emergency vehicle.   The League supported this bill.  The law does not apply to transfer or sale to another State or municipal agency.  The law also provides for an exemption for historic vehicles.  The Attorney General will be required to issue guidelines or directives for the enforcement of this law.  P.L. 2017, c. 259 will take effect May 1, 2018, but allows for the Attorney General to take anticipatory administrative action in advance of the effective date.

A-1427/S-2633, sponsored by Assembly representatives Johnson, Burzichelli, Danielsen, Benson, Vainieri Huttle, Jasey, and Senators Weinberg and Cruz-Perez, permits an increase in municipal free public library tax upon voter approval.  This law would permit an additional amount to be raised by taxation to supplement the annual statutory funding for the public library for a ten year period. This additional levy can only be authorized by voter approval of a public question at a general election. The public question can be submitted by either the governing body or petition of voters. At no time may the annual levy be less than one-third of a mill on every dollar of assessable property. Propositions to change the library’s annual levy may not be submitted to voters more than once in a 3 year election period. P.L. 2017, c 260 took effect immediately.

A-2294/S-2709, sponsored by Assembly representatives Vainier Huttle, Andrzejczak, Muoi, Lampitt, Mukherji, McKnight and Senators Weinberg, and Ruiz, expands certain civil rights protections under the “Law Against Discrimination” to include breastfeeding and expressing milk or related medical conditions. It will now be a civil rights violation for a working woman to be fired or otherwise discriminated against because of breastfeeding or expressing her milk during breaks. The law also requires employers to provide reasonable daily break times and location for an employee who is breastfeeding to express her milk in private. P.L. 2017, c. 263 took effect immediately.

A-2741/S-2875, sponsored by Assembly representative Coughlin, Holley, Johnson, Benson, Vainieri Huttle, Danielsen and Senators Vitale, and Greenstein, authorizes a municipal governing body to create and maintain list of municipal residents in need of special assistance in case of emergency for public safety purposes. By ordinance, a governing body may require the Municipal Clerk to maintain a list containing the names and addresses of municipal residents who identify themselves as being in need of special assistance in the event of an emergency and who request that this information be maintained on their behalf for public safety purposes. The law requires that the list be cross-indexed by name and address and identify the special circumstances of each individual. The list is solely and strictly for the police department, fire department, and rescue squad serving the municipality and they must be provided monthly updates. The law also requires that a notice of the program and how to be added to the list be included with the annual tax bill mailings. A similar notice must be provided to each landlord. The Department of Community Affairs is responsible for promulgating a model ordinance within 6 months.  The law also exempts the list from disclosure under the Open Public Records Act.  P.L. 2017, c. 266 took effect immediately.

A-4124/S-2907, sponsored by Assembly representatives Mosquera, Barclay, Jones, Vainieri Huttle, Lampitt, Downey, Mukherji and Senators Greenstein, and Cruz-Perez, requires public employers to implement certain policies for handling and responding to reports of domestic violence. This law requires the Civil Service Commission to develop a uniform domestic violence policy that all public employers, regardless if they are Civil Service, must adopt and distribute to their employees. The policy must include, among other things, a confidential method for employees to report domestic violence incidents to human resource officers as well as a requirement for public employers to develop a plan to identify, respond to, and correct employee performance issues that may be caused by a domestic violence incident. A public employer will be permitted to modify the uniform domestic violence plan but the modified plan cannot conflict with the specific requirements of the law. P.L. 2017, c. 272 took effect immediately.

A-4540/S-2873, sponsored by Assembly representatives Muoio, Eustace, Kennedy, Mukherji, Gusciora and Senators Smith and Bateman, requires municipal land use plan element of the master plan to address smart growth, storm resiliency, and environmental sustainability issues.   The League opposed this unnecessary legislation, which requires the land use element of a municipal master plan include “a statement of strategy” concerning:  smart growth, including consideration of potential locations for the installation of electric vehicle charging stations; storm resiliency with respect to energy supply, flood-prone areas, and environmental infrastructure; and environmental sustainability.   The League pointed out that, without appropriate tools and financing, all this bill will provide for is a statement of strategy.  P.L. 2017, c. 275 took effect immediately.

BILLS VETOED

S-3011/A-4708, sponsored by Senators Gordon and Weinberg and Assemblywoman Quijano , prohibits disclosure of certain religious affiliation by State or local government agencies.  Governor Christie conditionally vetoed this legislation. While the Governor agreed with the sponsors regarding the protection of religious freedom, he found that the approach in this legislation would imperil the state’s homeland security. The bill was returned to the sponsors with recommendation.   The Governor’s conditional veto was received in the Senate, which was the house of origin, but it was not acted on.   Thus, the bill died with the expiration of the legislative term. Please click here to read more.

A-5072/S-1396, sponsored by Assembly representatives Quijano, Muoio, Lampitt, Egan and Senators Weinberg and Greenstein, concerns the law proscribing failure to pay wages. Governor Christie conditionally vetoed this legislation stating that there is a better way to address this issue through an administrative process. To read more please click here.  The Governor’s conditional veto was received in the General Assembly, which was the house of origin, but it was not acted on.   Thus, the bill died with the expiration of the legislative term.

Contact: Ciara Bradley, Legislative Administrator,CBradley@njslom.org, 609-695-3481 x128.

 

Bills on the Governor’s Desk

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correct size blogThe waning days and hours of New Jersey’s 217th Session of the Legislature saw a flurry of activity as Legislators made one last push to get their bills onto the desk of the outgoing Governor before the start of the new session.  This legislative activity included many bills that the League has taken action on because of their potential impact on NJ municipalities.  Below, you will find a listing of bills, along with a brief description and the League’s position, that have recently been passed by the Legislature and are on the Governor’s desk waiting to be signed into law.

The Governor, in addition to his other courses of action, has the ability to, “pocket veto” these bills.  In short, a pocket veto is when the Governor takes no action.  Typically, no action on a bill after 45 days would result in the bill becoming law, but, because these bills were passed within the last 10 day of the legislative session, the pocket veto comes into play.

A-536/S-2107Provides that PERS and PFRS member who continues to be a volunteer firefighter or emergency services worker after retirement with employer from whom member retires has bona fide severance for compliance with State and federal law.

  • The League supports this bill and urges the Governor to sign it into law. Volunteers play an important role as they provide their expertise free of charge to municipalities.  Recent Division of Pension and Benefits guidance now prevents retiring public employee who also, volunteers, to collect retirement payments while they are still volunteering their services.  This bill would prevent this from happening and ensure the ability of retired public employees to continue serving, on a volunteer basis, while receiving their earned retirement benefits.

A-2220Authorizes local units of government subject to “Local Public Contracts Law” and “Public School Contracts Law to use electronic procurement technologies.

  • The League supports this bill and urges the Governor to sign it into law. This bill makes the use of technology for the procurement of goods, services, public works construction, and sale of surplus and real property much easier without the concern of litigation.  It provides municipalities with another option to use for public procurement while preserving the integrity and appropriate procedural protections of public procurement.

A-3612Jake’s Law; Incentivizes counties to design and construct completely inclusive playgrounds as a priority for State funding for recreational and conservation purposes.

  • The League worked closely with the sponsors, our counterparts at the Association of Counties and other stakeholders to address concerns. The sponsors concurred and amended the bill to address these concerns and the League now supports this bill.

A-4404/S-2978Permits local units and school districts to invest in local government investment pools managed in accordance with applicable Governmental Accounting Standards Board guidelines.

  • The League supports this bill and urges the Governor to sign it into law. This bill amends the current law governing the types of securities that may be purchased by local government units, to account for Federal regulatory changes that would have made it more difficult for local units to withdraw their funds from an investment pool.

A-5205/S-3370 Regulates and prohibits certain operation of drones.

  • The League supports this bill and urges the Governor to sign it into law. This bill addresses the operation of drones while under the influence.  Federal regulations do not address this issue and therefore this legislation is necessary.

A-5339/S-848Requires certain State oversight of budgets of regional sewerage authorities.

  • The League supports this bill and urges the Governor to sign it into law. This bill would provide the same state oversight of the annual budgets of regional sewerage authorities that municipalities are subject to.

AJR-47/SJR-23 Establishes task force to study and make recommendations concerning stabilization and growth of volunteer first responder community.

  • The League supports this bill and urges the Governor to sign it into law.

S-2180 New Jersey Rural Electric Cooperative Act.

  • The League supports this bill and urges the Governor to sign it into law.

A-3783/S2408 Allows county and municipal police departments to establish safe areas for Internet purchase transactions; establishes public awareness campaign.

  • The League supports this bill and urges the Governor to sign it into law. This permissive law provides municipal police departments with the authority to provide an important public safety function.

A-3150/S-1622 Authorizes veteran property tax exemption for total disabled veterans who did not serve in theater of war.

  • The League opposes this bill, though we appreciate the legislative intent. This bill would authorize 100% property tax exemption for totally disable veterans who became disabled as a result of serving in the military but said veterans did not serve for any period of time in any theater of war. This is a good bill with commendable intent except that it will result in loss of revenue and shifts the burden to other taxpayers in the municipality. The entire cost of the full property tax exemption for non-combat veterans who became totally disabled is borne by local governments, not the state or federal government. The most recent Fiscal Note prepared by the Office of Legislative Services demonstrates our concern. It estimates a revenue loss of $202.8 million to municipalities, counties, and school districts over the initial three years period.  As a result, the loss revenue would fall onto the remaining property taxpayers of the community. Because of the loss of property tax revenues without a replacement source of revenue from the State, the League must regretfully oppose this bill.

S-3558 Revises animal cruelty law enforcement in NJ.

  • The League remains neutral on this bill.   The sponsors of this legislation agreed to work with the League and other stakeholders to address any concerns, including costs that may emerge during implementation if the Governor chooses to sign this bill.

 

Contact: Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x137.

 

Rating agencies signal their concerns with expiration of the interest arbitration cap

Joint Statement from the League and the Association of Counties

For Immediate Release: January 5, 2018

(Trenton) Yesterday, Moody’s Investors Services, in a document titled, “Sunset of arbitration cap is credit negative for local governments” indicated that the expiration and failure to renew the 2% cap on interest arbitration awards is credit negative for New Jersey’s counties and municipalities.     This report echoed similar concerns raised by Fitch Ratings last week in its release “Expiration of Public Safety Arbitration Cap Could Pressure New Jersey Local Finances.”

While neither agency downgraded any credit rating for any local government, the implications of the Legislature’s failure to renew this cap are clear:

Moody’s:

Given that salary costs are among the largest of municipal expenditures, the cost implications are obvious and considerable.”

The effect of this is, in most cases, unlikely to be rapid, but ultimately, the loss of the arbitration cap is likely to cause the sector’s credit quality to deteriorate. “

Although the cap has expired, it may not be finished.   Numerous local governments and local government advocacy groups support the arbitration cap.   It is possible that the new governor and New Jersey state Legislature will revisit the matter.  Until and unless that occurs, there will be a potentially dangerous mismatch between revenue and expenditures.”

Fitch:

“…the arbitration cap is beneficial to local government credit quality as it helps to align revenue and spending measures and supports structural balance in the context of statutory caps on property tax growth.”

 “…bargaining groups may become more emboldened to pursue arbitration as opposed to voluntary settlement if the arbitration cap expires.    Arbitration awards were significantly higher prior to the cap, ranging from 2.50% to 5.65% from 1993-2010, according to a report of the New Jersey Public Employment Relations Commission (PERC.)”

 “…elimination of the arbitration cap could force local governments to reduce governmental services and/or rely on one-time resources to accommodate higher wage expenses.”

The New Jersey League of Municipalities (NJLM) and the New Jersey Association of Counties (NJAC) fully support the immediate reinstatement of the cap and further we call for the interest arbitration cap to be permanently linked to the 2% property tax levy cap.      We are joined by a coalition of other government groups, including the New Jersey Conference of Mayors and a long list of business groups.     Please click here for more on this coalition.  

“Moody’s and Fitch only confirm our concerns.    We have argued, backed by the facts and evidence in the numerous reports of the Interest Arbitration Task Force, that the expiration of the cap would have a serious, negative financial impact on local governments and our taxpayers. The cap has worked to contain tax increases and saved taxpayer dollars.    It should be immediately reinstated and made permanent.  There is no bigger issues faced by the State Legislature and the incoming Governor,” commented Gloucester County Freeholder and NJAC President Heather Simmons.

“The bipartisan concerns raised by local officials across the entire State are further validated by Fitch and now Moody’s.   The 2% cap on binding interest arbitration awards has proven to be a vital tool for containing property tax increases.   The failure to renew the cap will impact local services, property taxes, and now the credit worthiness of our local governments.    This is unacceptable and the renewal of the interest arbitration should be the first and top priority in the State Capital, said East Rutherford Mayor and NJLM President James Cassella.

For nearly a decade, the 2% cap on binding interest arbitration awards has kept public safety employee salaries and wages under control simply because parties have been closer to reaching an agreement from the onset of negotiations.  Moreover, the 2% cap on binding interest arbitration awards has established clear parameters for negotiating reasonable successor contracts that preserve the collective bargaining process and take into consideration the separate 2% tax levy cap on overall local government spending.  And the 2%cap on binding interest arbitration awards has not negatively impacted public safety services or recruitment. Failure to permanently extend the 2% cap on binding interest arbitration awards will inequitably alter the collective bargaining process in favor of labor at the expense of taxpayers.   In addition to raising taxes, county and municipal governments across the State will need to consider imposing employee furloughs; privatizing services; freezing salaries for non-affiliated employees; and, reducing or eliminating non-mandated services such as transportation for the aged and disabled, meals on wheels, mental health and addiction services, and more.

Contact:

Michael Cerra, Asst. Executive Director, NJLM, mcerra@njslom.org, 609-695-3481 x120.

John G. Donnadio, Executive Director, NJAC, 609-394-3467

 

 

The Buzz about Beekeeping Regulations

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town-crier_facebookIn 2015, the Governor signed into law, P.L. 2015, c.76, which preempted municipal authority to regulate beekeeping activity.  Meaning, municipal governments could no longer adopt ordinances to regulate beekeeping within their borders and all ordinances regulating such activity adopted prior to the law were now void.  As a “home rule state,” New Jersey’s municipalities are generally said to have broad power to enact local regulations for all activities, except where the Legislature has specifically preempted.  P.L. 2015, c.76 is a rare example of state preemption over local authority.  Instead of allowing for local control, the 2015 law vested exclusive authority to promulgate beekeeping regulations and standards with the State Department of Agriculture.  Unlike most other forms of preemption, however, P.L. 2015, c.76 allows municipalities to be delegated authority to monitor and enforce the standards promulgated by the Department.

Since the law’s signing, the Department of Agriculture has worked with the League and various beekeeping organizations to compose standards to regulate beekeeping.  On November 20, 2017, the Department published those proposed standards.  You can view these proposed regulations in their entirety, here.

Below is a brief overview of the Department’s proposed standards.  This is simply an overview, highlighting pertinent sections of the proposed regulations which have a direct municipal impact.  This overview should be read in conjunction with the proposed regulations in their entirety.  Comments on these proposed regulations are due by January 19, 2018.  If you have questions or concerns with these proposed regulations that you wish to be addressed you should submit written comments to the Department before the January 19, 2018 deadline.  For more details on how to submit comments please see the notice of proposed rulemaking, here.  Also, you may forward these concerns to the League so that they may be addressed in the comments the League plans to submit to the Department.

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

Hive Density

<1/4 Acre ¼ Acre to <5 Acres 5 Acres or More
Residential property where Agriculture is a Permitted Use *Not Addressed* 2 Hives per lot 40 Hives per lot
Residential property where agriculture is not a permitted use New (not already in existence) hives are not permitted. If hives were in existence prior to July 31, 2015, a waiver may be sought under N.J.A.C 2:24-76.3 None, without a waiver. Hobbyist may seek waiver for up to 2 hives per lot. None, without a waiver. Hobbyist may seek waiver for up to 10 hives per lot.
Commercial property where agriculture is not a permitted use New (not already in existence) hives are not permitted. If hives were in existence prior to July 31, 2015, a non-qualified commercial beekeeper may seek a waiver for up to 10 hives. Non-qualified commercial beekeeper may seek a waiver for up to 10 hives per lot. Non-qualified commercial beekeeper may seek a waiver for up to 20 hives per lot.
Farms or commercial farms Number of hives permitted is subject to N.J.A.C 2:76-2A.2 Number of hives permitted is subject to N.J.A.C 2:76-2A.2 Number of hives permitted is subject to N.J.A.C 2:76-2A.2
Undeveloped tract of land where agriculture is a permitted use *Not addressed* *Not Addressed* 40 Hives per lot

 

Waiver and Procedures for Requesting Waivers

The above-listed hive limitations may be extended through a request for a waiver.  A waiver is submitted by the beekeeper to the governing authority.  The governing authority can be the Department or a municipality if the municipality adopts through ordinance the Department’s apiary standards. (More on this below)  In order to obtain a waiver to own and maintain additional hives, the beekeeper must submit an application for hearing to the governing authority.  The request for a hearing must be made at least 10 days prior to a regularly scheduled meeting of a governing body, with public notice provided as required for regulatory actions of that governing body.  The applicant must also obtain from the municipality’s tax assessor’s office a certified list of all property owners within 200 feet of the applicant’s property and provide to all of those property owners written notice of the meeting where the waiver application will be heard.  The notice shall include the following:

  • The name and address of the applicant;
  • The address, lot and block number of the property at which the applicant intends to maintain the hive(s);
  • The nature of the waiver requested, setting forth the number of the proposed hives; and
  • The date, time, and place of the hearing before the governing body.

The governing authority may grant or deny an application for a waiver based upon a preponderance of evidence (roughly 51% or more) that the applicant has demonstrated good cause for granting such waiver.  Furthermore, an applicant seeking a waiver must certify that the hives are free of disease. When deciding to grant or deny a waiver the governing authority shall consider the following:

  • The size of the property where the applicant proposes to keep the hive(s);
  • The distance between the location of where the hive(s)is/are intended to be kept and the physical location of adjacent property owners’ homes or dwelling units;
  • Whether the property where the Hives are proposed to be kept is fenced to provide a particular type of flyway barrier;
  • Whether the hives for which the waiver is requested are the first hives or an addition to existing hives on the applicant’s property;
  • The prior history of complaints against the applicant for violations of the beekeeping standards;
  • The zoning district of the property where the hives are proposed to be kept;
  • Whether the hive(s) serve some business purpose or the hive(s) are to be kept as a hobby; and
  • Other such facts as the governing authority may believe appropriate to consider according to the case and circumstances presented at the time the application is heard.

A waiver can also be revoked upon the request of a resident or property owner of the municipality in which the hives are located.  In order to seek a waiver revocation, the applicant seeking revocation must address the same issues as someone seeking a waiver and be made by a person who certifies they reside or own property in the municipality in which the waiver applies.  Furthermore, notice must be given to the beekeeper through regular and certified mail that waiver revocation will be sought.

Location of Hives

All hives must be located a minimum of 10 feet from any property line and at least 25 feet from any roadside, sidewalk, or path.  Hives must also be 85 feet away from any public place including playgrounds, sports fields, schools, churches, or churches unless special permission is granted for educational or research purposes.  Entrance to the hives must be located away from adjacent residential property.

Other Requirements

A beekeeper must establish a flyway barrier at least six feet tall.  The flyway barrier must be made of a solid wall, fence, dense vegetation, or some combination thereof.   The flyway barrier must run parallel to the property line and extend 10 feet beyond the colony in each direction.  If the adjacent property is undeveloped or agriculturally utilized, then no flyway barrier is required.

Beekeepers are also required to register with the Department.  The proposed rules identify the information needed for registration and the process for doing such.  If you wish to examine these requirements please see the complete copy of the proposed rules found in the link above.

Along with registration, hobbyist beekeepers are required to certify that they have completed recurrent training every five years.  This training can be provided by the various entities including Rutgers University, the Department, or the NJ Beekeepers association.  Records of the completion of these programs must be submitted to the governing body overseeing these standards.

Administration of Standards and Authority Delegated to Municipalities

Without municipal action, administration of these proposed standards is provided by the Department of Agriculture.  A municipality, however, may take over administration if it passes an ordinance adopting by reference the apiary standards promulgated by the Department.  A municipality wishing to take over administration must designate the municipal office responsible for monitoring the standard and must also send a copy of any ordinance(s) adopting these standards at least two weeks in advance of formal consideration of such ordinance.

If a municipality which has adopted the Department’s standards finds a condition or circumstance is not sufficiently addressed by those standards the municipality shall request guidance from the Department.  This guidance can include making a request to the Department, allowing the municipality to adopt apiary standards that were in effect by ordinance prior to the passing of P.L. 2015 c.76, on July 31, 2015, if those prior standards would resolve the condition or circumstance.   The Department must provide guidance to a municipality no later than 90 days from the time such request is received.

If the Department fails to provide guidance within 90 days, the municipality may adopt by ordinance its own standards to address the condition or circumstance.  Prior to adopting its own standards, however, a municipality must first consult with the Department, the League, the NJ Beekeepers Association, and the Mid-Atlantic Apiculture Research and Extension Consortium.   Further, any standards the municipality chooses to adopt under this fashion must reflect consideration for population density, the density and intensity of development, type of land use, and honey bee biology and behavior.

For those municipalities which adopt the Department’s standards, reports must be provided to the Department covering the period between February 15 and October 15 annually.  Reports must be submitted by May 31, August 30, and October 30 and must contain the following:

  • The number of registration applications incorrectly sent to the municipality and forwarded to the Department;
  • The number and type of complaints from residents including complaints of swarms and/or disruptive contact of honey bees with swimming pools;
  • The number of monitoring inspections by the municipality;
  • The number of registrant reports of disease of bees to the municipality and forwarded to the Department; and
  • The number and type of enforcement actions taken.

 

Contact: Frank Marshall, Esq,  Staff Attorney,   fmarshall@njslom.org,609-695-3481  x137.

 

 

CY 2018 Budget Matters

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correct size blogAs you continue to prepare your 2018 municipal budget, we would like to bring to your attention Local Finance Notice 2017-26, recently issued by the Division, detailing CY 2018 Budget matters.  We would like to note that in 2018, the Division will automate the financial reporting process, which is explained below in further detail, resulting in a streamlined process, which will eliminate the need to file a separate User-Friendly Budget.

I.   CY 2018 Budget Deadlines

The Division of Local Government Services has extended the deadline to introduce your CY 2018 budget to March 16.  It is important to be mindful of these dates as you develop your budget.  First, in the past, the timely adoption of the municipal budget has been a best practices question.  Secondly, the Division has taken a harder line with municipalities that fail to timely adopt their budgets.  Governing body members who willfully fail or refuse to timely adopt their budgets can be subjected to a daily personal penalty of $25.

The proposed changes (absent referendum dates) are:

Introduction and Adoption of Budget – Non-Referendum Statutory Date Revised Date
Mayor/Council Faulkner Act (Executive) budget transmission to governing body 1/15 2/16
Municipal introduction and approval of budget 2/10 3/16
Municipal adoption 3/20 4/20

Notwithstanding the revised dates, a budget may be adopted anytime within 10 days of receiving the Director’s certification of approval of the budget. 

II.   FY 2019 State Aid

One of the unknowns you face when preparing your municipal budget is how much property tax relief funding the State Aid will provide to your town.  This number is not known until the Governor’s budget is presented.  At this time it unknown when incoming Governor Murphy is scheduled to deliver his State Budget address. As in the past with the first year of a new Governor, we expect the State Budget address to be late February or early March.   According to the Local Finance Notice, after the budget is proposed the Division will notify municipalities of the CMPTRA and Energy Tax Receipts amounts that can be anticipated in their budgets. For budgeting purposes, the Division is advising municipalities to use the 2017 funding amounts for the 2018 budget.

III.   Health Insurance Contribution and Waiver Accounting

The 2010 property tax levy cap law included an exception for health care cost.  The exception is based on the average State Health Benefits increase, which is 0.0% for 2018. Therefore, there will be no levy cap exception for Health Benefits.   The Division has also outlined how employee contributions for health insurance should be accounted and that the formal budget message must contain information or a schedule showing the amounts contributed from employees, the employer share, and total costs.  The disclosure may be broken down by employee group.

IV.   Financial Automation Submission Tracking (“FAST”)

The Division will be automating the budget process through their Financial Automation Submission Tracking system known as FAST.  All reports, documents, and information that was previously submitted on paper, email, or excel spreadsheets will be submitted through FAST.  Beginning January 1, 2018, all municipalities and counties must submit the following documents through FAST:

  • Annual Debt Statement/Supplementary Debt Statements
  • Annual Financial Statement
  • Budget/ User-Friendly Budget
  • Annual Audit/Corrective Action Plan
  • Budget amendments
  • Chapter 159
  • Dedication By Riders
  • All Emergencies

As a result of the FAST system, the Division will no longer require a separate submission of a User-Friendly Budget.  Instead, a separate User-Friendly Budget report will be generated through FAST.  Also, the CAP workbooks have been integrated into the FAST system and as such, municipalities will no longer be required to submit separate CAP workbooks.

In addition, all budgets submitted through FAST will be posted to the Division’s website upon introduction and adoption.  While it does not eliminate the requirement of N.J.S.A. 40A:4-10 to post your current and three prior year’s budgets on your municipal website you can satisfy this requirement by adding a link to the Division’s reports on your website.

The Division is providing training and information directly to your Chief Financial Officer, auditors, and financial professionals on FAST.

V.   Local Examination

If a municipality meets certain standards they are able to locally examine their budget in any 2 of 3 consecutive years.  This year the Division will be examining Group 3 budgets.  If your municipality is considered a Group 1 or 2 you can have the Division examine your budget but you first must pass a resolution prior to the introduction of the municipal budget.

VI.   Transitional Aid Application Process

Calendar Year municipalities in financial distress will have only one opportunity to apply for Transitional Aid.  For budgeting purposes, the municipalities that received Transitional Aid in CY 2017 may anticipate Transitional Aid in an amount equal to 85% of their CY 2017 aid allocation.  The due date for the application will be set shortly.

Local Finance Notice 2017-26  details issues that a municipality should consider when preparing their 2018 municipal budget.  We suggest you review the notice with your professional staff.

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

 

 

 

Act Now to Protect Local Budgets and Services

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correct size blogLast week in Washington, the House of Representatives passed a tax reform bill that would repeal the federal income tax deduction for state and local sales and income taxes, and cap the property tax deduction at $10,000. We thank Representatives Frelinghuysen, Gottheimer, Lance, LoBiondo, Norcross, Pallone, Pascrell, Payne, Sires, Smith and Watson Coleman for voting against the bill.

When the U.S. Senate returns to the Capitol, next week, they will be asked to vote on a proposal that eliminates the SALT (State And Local Taxes) deduction entirely. We are confident that Senators Menendez and Booker will oppose that bill.

On Monday, League Immediate Past President, Mayor Albert Kelly of Bridgeton, published an Opinion piece, “Outcome of these SALT Talks Critical for NJ”, which appeared in NJ.com outlets.

We wanted to let you know that our Federal Relations partner, the National League of Cities (NLC), has also been active on this and on other matters that will affect New Jersey municipal budgets. NLC has posted an action letter on tax reform and the FY18 budget. The letter has already received over 700 signatures, from municipalities all around the country.  Feel free to add your own signature at the bottom of the page: http://www.nlc.org/StandWithCities.

Further actions on the SALT deduction, on the deductibility of interest earned on Private Activity Bonds, and on the Federal Budget, which is set to expire in early December, are coming. We need to have our voices heard on these issues.

Contact: Jon Moran, Sr. Legislative Analyst.   609-695-3481 x121.

 

League Statement on the Oliver Appointment

November 9, 2017

Trenton, NJ

League Statement on the Oliver Appointment

The League of Municipalities congratulates Lieutenant-Governor Elect Sheila Oliver, first, on her recent election to that post, and second, on her designation as our next Commissioner of the Department of Community Affairs. And we commend Governor-Elect Murphy on making this appointment.

As Assembly Speaker, and throughout her tenure in the Assembly, she has shown her appreciation for the work done, and the challenges faced, by officials serving on the local level. She has always been open to discuss issues and concerns with local leaders, working through the League of Municipalities.

“We commend Governor-Elect Murphy for making this appointment,” said League President Mayor Albert Kelly of Bridgeton. “For as long as I have known her, she has always been willing to listen to the concerns of all of us, who work, every day, to better meet the needs of our fellow citizens. Those citizens are best served when all of their elected representatives cooperate to advance the general welfare. I promise Sheila that she can count on the League of Municipalities to work with her on many matters of mutual concern. And I know, from past experience, that we can count on her to consider our viewpoint on the many issues she will be asked to deal with at the Department of Community Affairs.  We offer our congratulations.”

 Contact: Michael Cerra, Assistant Executive Director at 609-695-3481 ext. 120 or mcerra@njslom.org

Deadline for First Local Action on 2020 Census Just Weeks Away

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correct size blogThe U.S. Constitution, in Article I, Section II, requires Congress to conduct a census every ten years. And while 2020 may seem like a long way off, the first deadline (December 15) for local governments to ensure a complete and accurate enumeration of their residents is just weeks away.

The Local Update of Census Addresses (LUCA) program is the once-a-decade opportunity for governments to add, correct, or delete addresses on the lists and maps used to conduct the decennial census. It represents the first step to ensuring an accurate and complete count in your municipality. But in order to participate in the Local Update of Census Addresses program, you will need to register, by December 15. The Census Bureau should have already mailed LUCA registration forms and instructions to every municipality. You can also access all the forms and information needed to register at the links available online at the LUCA Operations Page.

The 2020 Census will face a number of challenges. For the first time, the Census Bureau will primarily rely on the internet to conduct the enumeration, though in-person contacts and telephone responses will be allowed. The Bureau will encounter a heightened climate of fear, among both those who distrust any government program and agency, those who are concerned about internet security, the technologically challenged, and among those who might fear arrest or deportation. Inadequate funding means that there will be half the number of Regional Census Centers, half the number of local offices and half the number of census takers.  Finally, the Census Director’s recent, unexpected resignation has created a leadership vacuum at the agency.

A complete and accurate census is needed for a number of reasons. It will ensure equal representation in Congress. This is particularly important in New Jersey, as our State could lose, yet again, at least one seat in the House of Representatives if we are under-counted. It will also ensure a fair distribution of the $600 billion in Federal resources that are distributed, every year, based on population counts. It will similarly affect State redistricting and allocations of certain State aid. And it will help local governments, as they plan to address the needs of local populations.

Registering to participate in LUCA is an important opportunity that every New Jersey municipality should seize. As we move forward, we will work with our partners at the National League of Cities and advise you of educational opportunities and further steps that you can take to protect the interests of your communities. But for now, LUCA registration, by December 15, is a priority.

The New York Regional Census Center (NYRCC), in conjunction with the New Jersey State Data Center (NJSDC) is offering three webinars on the LUCA operation, with a focus on issues that are specific to New Jersey.

NJSDC LUCA Information Page:
http://lwd.dol.state.nj.us/labor/lpa/census/2020/luca_10_17.html

The webinar schedule:
Thurs. 30 Nov 2017, 1 PM. To register:
https://census.webex.com/census/k2/j.php?MTID=t2bb88ea3d2ac4eadcd3be8916f5bfc2e and register.

Thurs. 7 Dec 2017, 1 PM. To register:
https://census.webex.com/census/k2/j.php?MTID=t7cd3a9ff6fad51bd8f8304b03dc9d7e1 and register.

Tues. 12 Dec 2017, 10 AM. To register:
https://census.webex.com/census/k2/j.php?MTID=tcd417480e41baed89cf7ff95ca42bb05 and register.

Thanks for your attention to this matter and the upcoming December 15 deadline.

Contact: Jon Moran, Senior Legislative Analyst,jmoran@njslom.org,609-695-3481, x121.