Stop-Work Order for Violations of Prevailing Wage Act

On July 9 Governor Murphy signed into law P.L. 2019, c. 158, which permits the Commissioner of Labor and Workforce Development to immediately issue a stop-work order if an employer has violated the Prevailing Wage Act by paying wages at rates less than the rates required under the act. The stop work order would cease all business operations at every site where a violation has occurred. The stop-work order can only be issued against the employer found to be in violation or non-compliance. The Commissioner can assess a civil penalty of $5,000 per day against the employer for each day that they conduct business operations in violation of the stop-work order. Please note that if the stop-work order is issued against a subcontractor, the general contractor has the right to terminate the subcontractor from the project.

 The Commissioner must issue an order releasing the stop-work order. However, the stop-work order remains in effect until the employer has agreed to pay the required wages, any wages due and any penalty. The Commissioner may also require the employer to file periodic reports for a probationary period, which cannot exceed two years, demonstrating the employer’s continued compliance with the Prevailing Wage Act. 

 The new law also authorizes the Department Labor and Workforce to enter the place of business or employment during regular business hours to determine compliance with wage and hour laws, based upon a receipt of a compliant or routine investigation. To that end, they may examine payroll records, other records, and interview employees, call hearings, administer oaths, take testimony under oath and take depositions to determine compliance with wage and hour laws. The Commissioner may also issue subpoenas for the attendance of witnesses and production of books and records. The Commissioner may issue a stop-work order at all business operations at specific places of business or employment where a violation has occurred.

In addition, any employer or agent of the employer who willfully fails to furnish time and wage record or who refuses to admit the Department into the place or who hinders or delays the Department in the performance of duties may be fined not less than $1,000 and will be guilty of a disorderly person offense. Each day will constitute a separate offense.

 An employer who is subject to a stop-work order has the right to appeal to the Commissioner by written notification to the Director of Division of Wage and Hour Compliance within 72 hours of receipt of the notification of the stop-work order. The Director has seven business days to hold a hearing. A written decision, including the grounds for the decision, must be issued within five business days of the hearing either upholding or reversing the stop-work order. If the hearing is not held in the appropriate timeframe, an administrative law judge has the authority to release the stop-work order.

 This new law took effect immediately.

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

 

Governor Freezes Most Transitional Aid

Upon signing the FY 2020 State budget, Governor Murphy issued Executive Order 73, which impounds up to $235 million in spending, and is not subject to a potential override. Specifically, EO 73 directs the Department of Treasury, Office of Management and Budget (OMB) to reserve $235 million in discretionary spending. The OMB will monitor and release this funding if sufficient resources and when anticipated savings are realized.  A full list of frozen spending is available.

We learned today that among the $235 million which is reserved is almost $105 million in transitional aid.   For background, the Governor’s proposed budget included this nearly $105 million, which was then increased by $10 million by the Legislature.

For background, Governor Christie took similar action in 2016 following his signing of the State FY 2017 budget.    Governor Christie Executive Order 209 held state funds in reserve, including Transition Aid and some transportation funding,  and called for agreement on State Health Benefits to be achieved by the “Plan Design Committee.”    In that circumstance, the Plan Design Committee took the appropriate action and the funding was eventually released.

Also for background, Transitional Aid is, according to the Office of Legislative Services, (OLS), “…the State’s only discretionary municipal financial assistance program.   Transitional aid is awarded to help municipalities in serious fiscal distress meet immediate budgetary needs.”   (Emphasis added.)

Lastly, according to the “Individual Certifications of Municipal State Aid,” which are available on the DCA’s website, the following municipalities received Transitional Aid in

Calendar Year 2018/Fiscal Year 2019:

Atlantic City, $3.9 million;

Camden, $22.3 million;

Nutley, $4.1 million;

Paterson, $33 million;

Penns Grove, $0.45 million;

Salem, $1.4 million;

Seaside Heights, $1.19 million;

Trenton, $6 million; and

Union City, $20 million.

These awards total $92.34 million.    The current list of municipalities seeking transition aid is not available as this time as the State is in the middle of the application process.

The League has been in contact with the Administration seeking guidance.   In particular, we are concerned with the impacted municipalities which operate on a calendar year budget, as the budget was likely certified assuming these revenues and we are now just over halfway through the budget year.

We will advise you of developments.

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

Process for Global Settlement of Opioid Cases Proposed

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Opioids

As the opioid epidemic continues to grip the country more and more state and local governments have turned to the courts in an effort to stem the tide of addiction.  These efforts include seeking monetary damages to help recover the tremendous costs already expended and future costs, necessary to adequately respond to this public health crisis.  The current court battle can be compared to that of the “big-tobacco” lawsuits and subsequent settlement made in the 1990s.  And, many are hoping the opioid lawsuits end with a result similar to the big-tobacco lawsuits where a settlement trust fund will be set up and funded by those responsible for this public health crisis.

While states and local governments are free to file their own claims in state courts and proceed individually, over 1,900 opioid cases filed in the federal courts have been included in a legal procedure known as Multidistrict Litigation (“MDL”).

The MDL is designed to speed the process of handling complex civil actions involving one or more common questions of fact in cases pending in different districts.  Cases subject to MDL have all pretrial proceedings and discovery handled by a single judge in one court.  Typically the goal of MDL is to create some kind of global settlement for all cases, thus eliminating the costly and burdensome need of trying each case individually.

Opioid lawsuits brought by states and local governments across the country have been centralized with Judge Polster in the Northern District of Ohio and are collectively known as “MDL 2804.”  Staying true to the purpose of MDL, Judge Polster from the very beginning has urged all parties to come to a swift and comprehensive global settlement agreement.  To that end, attorneys’ representing local governments have offered a novel plan of creating a Negotiating Class to help expedite settlement talks.

While many local governments support the idea of the Negotiation Class proposal for fear settlement funds will be mismanaged by state legislators, much like the big-tobacco settlement, some state Attorneys General and defendants have opposed the idea.  And, on June 25, 2019, Judge Polster held a hearing to listen to some of those concerns.

The outcome of that hearing was to allow Plaintiff representatives until July 9, 2019, to amend the proposal to take into consideration comments and suggestions received from all interested parties.  A response to the amendments is due July 23, 2019, with a hearing on the matter scheduled for August 6, 2019, at 10 a.m., where Judge Polster will likely make a decision on the proposed Negotiation Class.

Below is a short overview of the proposal in its current form.  Should this proposal be approved there will be timelines placed on your municipality to take certain actions that could limit your rights to recovery, including opting-out of the proposed agreement.

Creation of a single “Negotiating Class”

Under the plaintiff’s proposed plan, all 24,500 local governments across the country would be automatically included in a single Class, termed the Negotiating Class.  Any government entity, however, would have the ability to opt-out of the class designation and be free to file their own suit or pursue their own claim, much like any class action suit.  However, those who opt-out will be ineligible to participate in any negotiation or vote on any proposed settlements.

Negotiating Class Representatives

The Negotiating Class members would be represented at settlement negotiations by a handful of local governments currently involved with the MDL, and which include some of the largest municipalities and counties in the country.  As currently proposed, there are 39 members in the Negotiation Class Representatives.  Four of those members are New Jersey Local governments, including; Bergen County, Camden County, Essex County, and Jersey City.

The benefit of Negotiation Class Representatives for defendants is that it allows them to negotiate with a smaller cohesive group representing all of the country’s local governments, rather than needing to negotiate with individually with each local government or smaller classes.  Plaintiffs – local governments – benefit from this type of plan as it allows them to better pool their negotiation power and provides a way for local governments to recover without having to hire their own representation to bring their own claims; a much more cost efficient alternative.

Negotiating Class Approval of Proposed Settlements

Any time a proposed settlement has been reached between a defendant and Negotiation Class Representatives, the proposed settlement would need to be voted and approved by a supermajority of the Negotiation Class before it could be presented to the court for approval.  Prior to voting on any proposed settlement, all members of the Negotiating Class would be able to see the number of funds that would be allocated to their county.

To be binding, 75% of each of the following categories must approve a proposed settlement:

• 75% of the total number of municipalities and counties that have filed suit as of June 14, 2019 (“litigating entities”). This number is based on all individual Class members who had suits on file regardless of size so that each voting entity has one vote;
• 75% of the total population of all municipalities and counties that have filed suit as of June 14, 2019. For this computation, the vote of the municipality or county is weighted according to its population, with each person in a voting municipality and each person in a voting county equal to one vote. Thus, by way of example, if a county votes yes and has a population of 20,000, and a municipality within the county votes yes and has a population of 10,000, the county’s vote is weighted as 20,000 votes in favor, and the municipality’s vote is recorded as 10,000 votes in favor. The population for each jurisdiction is drawn from the 2010 Census data and is presented on the litigation website, Opioidsnegotiationclass.com. The data will be updated once the 2020 Census figures become available. Many individual residents in this category will be counted twice, once as a resident of a municipality, and once as a resident of a county;
• 75% of the total population of all cities and counties that have not filed suit as of June 14, 2019. For this computation, the vote of the municipality or county is weighted according to its population, with each person in a voting municipality and each person in a voting county equal to one vote. Thus, by way of example, if a county votes yes and has a population of 20,000, and a municipality within the county votes yes and has a population of 10,000, the county’s vote is weighted as 20,000 votes in favor, and the municipality’s vote is recorded as 10,000 votes in favor;
• 75% of the total population of all cities and counties that have not filed suit as of June 14, 2019. For this computation, each person in a voting municipality and each person in a voting county is the equivalent of one vote. The population for each jurisdiction is drawn from the 2010 Census data and is presented on the litigation website, com. The data will be updated once the 2020 Census figures become available. Many individual residents in this category may be counted twice, once as a resident of a municipality, and once as a resident of a county;
• 75% of the litigating entities, weighted by their settlement fund allocations as shown on the Allocation Lookup Tool to be posted at Opioidsnegotiationclass.com; and,
• 75% of the non-litigating entities, weighted by their settlement fund allocations as shown on the Allocation Lookup Tool to be posted at Opioidsnegotiationclass.com.

Allocation of Settlement Funds

When a settlement with any defendant is reached funds are allocated to counties based on a prescribed formula using three factors – (1) the number of persons suffering opioid use disorder in the county, (2) the number of opioid overdose death that occurred in the county, and (3) the amount of opioids distributed within the county.   Once allocated to counties is it left up to the county and each municipality within that county to reach an agreement on how the funds will be shared.

The proposal also provides for a mechanism to be used in the case of a county and municipality failing to come to some agreement to how funds will be shared.  If there is no agreement a Special Master will divide the funds based on historical data of how counties and municipalities have split funding of government functions potentially relevant to opioid abatement.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njlm.org or 609-695-3481 x137.

 

Path to Progress’ Pension Hybrid Plan

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Pension Hybrid Plan

This is the first of a series of blog posts on recently introduced legislation designed to implement the recommendations of the “Path to Progress” report.

As noted in the Path to Progress Report, “the State’s combined pension and retiree health benefit liabilities of $151.5 billion are four times the size of the State’s annual budget; and more than three times the size of the State’s bonded debt. That public employer debt represents $16,772 for every one of New Jersey’s nine million residents. It will continue to grow every year. Without changes to the pension and benefit structure, the cost of pensions and benefits will rise by $4.1billion over the next four years and eat up 26 percent of the state budget.”

To address the strain of rising pension and benefits cost, Senate President Sweeney and Senators Oroho and O’Scanlon have introduced S-3753, which establishes cash balance plans in PERS and TPAF for new public employees and employees with less than five years of service and makes various changes to PERS and TPAF retirement eligibility. The bill is part of the Path to Progress bill package. In announcing the bill package Senate President Sweeney noted that “without pension & benefits reform we cannot invest in higher education or improving infrastructure. We cannot invest in the future of our state until we make long-overdue reforms.” S-3753 could lead to lower pension costs for local employers.

The bill makes various changes to the Public Employee Retirement System (PERS) and Teacher’s Pension Annuity Fund (TPAF) for employees hired on or after July 1, 2020, or for those employees with five years or less as of July 1, 2020. Employees who have more than five years of creditable service as of July 1, 2020, will not be impacted by the changes proposed in S-3753.

Besides increasing the retirement age to 67 years of age and increasing the years of creditable service from 25 years to 30 years, S-3753 creates a hybrid pension system for those employees hired on or after July 1, 2020, or for those with five years or less of creditable service as of July 1, 2020.

Under the bill, the first $40,000 of compensation will be in the defined benefit plan (the existing pension fund) while the remaining compensation will be in a defined contribution plan.  For the funds in the defined contribution plan, the member will have an account that will be credited with the member’s mandatory contributions, but not the employer’s contribution, plus a minimum interest credit, which is statutorily 4% on the contributions, as well as an alternate interest credit on those contributions. Statutorily the alternate interest credit is 75% of the rate of the return on the asset investments for a fiscal year, as that rate of return is certified by the actuary in the actuarial valuation when the valuation is adopted by the board of trustees.  To be eligible for an interest credit or alternate interest credit, the member must have an account balance at the time the interest is credited to the account. Please note the bill allows the legislature to change the minimum interest credit and alternate interest credit prospectively.

Unlike the defined benefit plan, a member is vested with the member’s mandatory contributions to the account from the date the member is enrolled in the plan. Upon employment termination, the cash balance account will remain active at the discretion of the employee and does not expire.  While the closing of the account and the withdrawal of funds is at the discretion of the member, the member will cease to be a member of the defined benefit plan. A member is not required to withdraw funds after any specified time period. If the member leaves with less than 10 years of service, the cash balance account will be credited with the minimum interest but not the alternate interest credit. If the member leaves with 10 plus years of service the cash balance account will be credited with the minimum interest and alternate interest credit.

If a member leaves with less than 10 years of creditable service and elects to take a refund of the member’s accumulated contributions to the account they will receive the member’s contributions. But the minimum and alternate interest credit added to members account for the first two years is forfeit. The minimum interest and alternate interest is recalculated for the third and each subsequent year. For year three, 30% of the minimum and alternate interest is added to the member’s account. For each subsequent year of membership, an additional 10% is added until 90%. The member will receive the greater of the members’ accumulated contributions with the recalculated minimum interest credit or the member’s accumulated contributions with the recalculated alternate interest credit.

If a member leaves with more than 10 years of creditable service and elects to take a refund of the member’s accumulated contributions to the account, then the member shall receive the greater of the accumulated contributions with the recalculated minimum interest credit or the accumulated contributions with the alternate interest credit.

The retirement payout will include the portion in the defined benefit plan plus the portion in the defined contribution plan. For the portion in the defined contribution plan, it will be the greater of accumulated contributions with the minimum interest credit or the accumulated contributions with the alternate interest credit.   The member has options on how to take accumulated account balance for the defined contribution plan. They can take it as (1) a lump sum, (2) in the form of a direct rollover to a qualified plan, (3) as a payment directly to a qualified individual retirement account or (4) any other method permitted by Board of Trustees’ regulations and applicable federal and State laws.

Upon member’s death, their beneficiary or estate must receive the member’s accumulated contributions in the account with minimum interest credit or the accumulated contributions with alternate interest credit, whichever is greater, regardless of the member’s years of service and even if the beneficiary is eligible for accidental death pension.

The current Board of Trustees for PERS and TPAF will serve as trustees for the new defined contribution plan for their respective retirement system.  The Board must determine the manner and method of distribution by regulations ensuring they comply with federal and state laws. The Board may also specify minimum account balances for purposes of allowing benefit payment options and rollovers or transfers. The Division of Investments will be authorized to control the investments or reinvestments and to acquire for or on behalf of the TPAF and PERS cash balance plans.

S-3753 also requires that any savings realized by a local unit and school board as a result of the new hybrid pension system must be used solely and exclusively for the purpose of reducing the amount that is required to be raised by the local property tax levy by that local unit or school district. The bill authorizes the Department of Community Affairs and the Department of Education to prescribe the calculations of the savings.

S-3753 would take effect the first day of the fifth month following enactment.  For members in PERS and TPAF with less than 5 years of service on July 1, 2020, the Board of Trustees and the Division of Pension must within 90 days following the establishment of a cash balance plan make adjustments to the member’s accounts and records to comply with the provisions for membership in the cash balance plan for the member for any year prior to July 1, 2020, provided that such retroactive membership and adjustment is permitted by law.

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

Bills Will Prevent Endless Litigation and Clarify Corporate Tax Responsibilities

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Corporate Tax

Recently introduced legislation will clarify telecommunications industry corporate tax responsibilities, and shield local taxpayers from the costs of endless tax court litigation. The League fully supports the companion bills, A-5450/S-3827, and we thank the sponsors.

Based on a misreading of a 1997 law, Verizon decided that it could exempt itself from the payment of business personal property taxes (BPPT), in any year and in any municipality, when and where it, unilaterally and without documentation, determined that it provided less than 51% of dial tone service.

The dispute 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.

Earlier this year, Hopewell Borough in Mercer County prevailed over Verizon in a Tax Court case involving the corporation’s claimed exemption for 2008. It took one municipality ten years to ensure that Verizon would pay its 2008 taxes.  Further litigation will be needed for Hopewell to secure BPPT payments for each subsequent year in which the exemption was claimed. Every other municipality faces the same prospect of costly annual tax court filings, which, as we have seen, can drag on for over a decade. But even that might not end the problem, as Verizon has appealed the final Tax Court decision, forcing Hopewell Borough to put even more time and treasure into the fight.

A-5450/S-3827 would put an end to the travail. They will clarify the Legislature’s intent to permanently apply the business personal property tax on local exchange telephone companies that were subject to the tax as of April 1, 1997.

A-5450, sponsored by Assemblymen Burzichelli, Schaer and Karabinchak, has been referred to the Assembly State and Local Government Committee. S-3827, sponsored by Senator Turner, awaits referral in the Senate.

Please contact the Members of the Assembly State and Local Government Committee and your State representatives, and urge them to advance A-5450, as soon as possible.

Assembly State and Local Government Committee

Hon. Mazzeo, Vincent – Chair Assemblyman, District 2 2312 New Road Suite 102 Northfield, NJ 08225 Phone: 609-383-1388 AsmMazzeo@njleg.org   Hon. Sumter, Shavonda E. – Vice-Chair Assemblywoman, District 35 191 Market Street Paterson, NJ 07505 Phone: 973-925-7063 AswSumter@njleg.org   Hon. Carroll, Michael Patrick  Assemblyman, District 25 146 Speedwell Avenue Morris Plains, NJ 07950 Phone: 973-539-8113 AsmCarroll@njleg.org   Hon. McKnight, Angela V.  Assemblywoman, District 31 2324 John F. Kennedy Blvd. Jersey City, NJ 07304 Phone: 201-360-2502 AswMcKnight@njleg.org   Hon. Peters, Ryan E.  Assemblyman, District 8 668 Main Street Lumberton, NJ 08048 Phone 609-667-7360 AsmRyan@njleg.org   Hon. Reynolds-Jackson, Verlina  Assemblywoman, District 15 144 West State Street Trenton, NJ 08608 Phone: 609-571-9638 AswReynoldsJackson@njleg.org

Contacts:

• Jon Moran, Senior Legislative Analyst, jmoran@njlm.org, 609-695-3481 x121.
• Frank Marshall, Esq., League Staff Attorney, fmarshall@njlm.org, 609-695-3481 x 137.

 

 

House Makes Progress on Infrastructure

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Federal Infrastructure

On Thursday, in Washington, the House Appropriations Committee’s Subcommittee on Transportation, Housing and Urban Development, and Related Agencies approved by voice vote its fiscal year 2020 bill. In total, the legislation provides $137.1 billion in budgetary resources, an increase of $6 billion above the 2019 enacted level and $17.3 billion above the President’s budget request. The bill next heads to the full Committee for markup.

Specifically, the bill provides a total of $86.6 billion in total budgetary resources for the Federal Department of Transportation (DOT) – $167 million above the 2019 enacted level and $3.7 billion above the President’s budget request.  Of this amount, the bill includes:

• $1 billion for National Infrastructure Investments (TIGER/BUILD), $100 million above the 2019 enacted level and equal to the President’s budget request.
• $10 million to start a new Highly Automated Systems Safety Center of Excellence. This program was not in the 2019 enacted bill or the President’s budget request.
• $17.7 billion for the Federal Aviation Administration (FAA), $267 million above the 2019 enacted level and $614 above the President’s budget request.

• $48.9 billion for the Federal Highway Administration, $404 million below the 2019 enacted level and $1.7 billion above the President’s budget request.

• $677 million for the Federal Motor Carrier Safety Administration, $10 million above the 2019 enacted level and $1 million above the President’s budget request.
• $1 billion for the National Highway Traffic Safety Administration, $44 million above the 2019 enacted level and $81 million above the President’s budget request.
• $3 billion for the Federal Railroad Administration, $96 million above the 2019 enacted level and $877 million above the President’s budget request.
  • $350 million for Consolidated Rail Infrastructure and Safety Improvements, $95 million above the 2019 enacted level and $20 million above the President’s budget request.
  • $350 million for Federal-State Partnership for State of Good Repair, $50 million below the 2019 enacted level. The President’s budget request proposed eliminating this program.
  • $2 billion for Amtrak, $50 million above the 2019 enacted level and $1.1 billion above the President’s budget request.
    • $700 million for Northeast Corridor Grants, $50 million above the 2019 enacted level and $375 million above the President’s budget request.
    • $1.3 billion for National Network Grants, equal to the 2019 enacted level and $681 million above the President’s budget request.
• $13.5 billion for the Federal Transit Administration, $60 million above the 2019 enacted level and $1.1 billion above the President’s budget request.

Once approved by the full Appropriations Committee, the bill would advance for a House Floor vote. We will keep you posted on further actions, if any, on this crucial infrastructure initiative.

Jon Moran, Senior Legislative Analyst, jmoran@njlm.org, 609-695-3481 x121.

Communities Will Feel Sting of NJ Dept. of Agriculture’s Inadequate Beekeeping Rules

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Beekeeping

In 2015, then Governor Christie 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 first published proposed standards.  The initially proposed rules, however, received a tremendous amount of highly critical feedback from both the League and beekeepers, leading the Department to issue a Notice of Proposed Substantial Changes.

The substantial changes, in the League’s opinion, did not do enough to address the very real nuisance that could be caused by having an area too densely populated by honeybees.  In fact, the substantial changes increased the originally proposed hive density levels.  Not only could this pose a nuisance to those residents within the area but it also poses a risk to New Jersey’s native pollinators that will now be in competition with honeybees for scarce food sources.

On May 6, 2019, the Department adopted final regulations which became effective that same day.  Below is a brief overview of the Department’s adopted beekeeping standards.  This is simply an overview, highlighting pertinent sections of the regulations which have a direct municipal impact.  This overview should be read in conjunction with the regulations in their entirety.

Colony Density

Tract of Land Size	Number of Colonies Allowed
Up to ¼ Acre	3
½ Acre	6
¾ Acre	9
1 Acre	12
Over 1 Acre	3 per ¼ acre not to exceed 40

 

Waiver and Procedures for Requesting Waivers

The above-listed colony-density limitations may be extended through a request made by a beekeeper for a waiver.  An application for 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)

The request for a hearing must be made at least 10 days prior to a regularly scheduled meeting of a governing authority.  The applicant must mail via certified and regular mail a copy of the application to all property owners within 200 feet of the apiary site.  The application 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 the 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 municipal resident or landowner with a particularized interest in the hives located within 200 feet of the hives.  In order to seek a waiver revocation, the applicant seeking revocation must address the same issues as a beekeeper 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.

Only one petition for revocation per year can be made on each waiver.  Meaning, if one landowner seeks to have the beekeeper’s waiver revoked they would be precluded from doing so if another landowner had previously within that year sought a revocation.

Location of Hives

All hives must be located a minimum of 10 feet from any property line and at least 20 feet from any roadside, sidewalk, or path.

When hives are located on rooftops they may not be less than 20 feet away from any area used for outdoor human activity.   Additionally, hives are not permitted on balconies of multistory, multifamily dwelling unit buildings.

Other Requirements

When a colony is less than 20 feet from a property line, 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.   All flyaway barriers must comply with any federal, state, or local law, rules, regulations, and/or ordinances.

Beekeepers are also required to register with the Department.  The regulations 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 final rules found in the link above.

The rules as first introduced, required beekeepers to complete recurrent training every five years in order to allow the beekeeper to stay up to date on the most recent beekeeping standards and potential for disease.  However, in the final rule proposal, this continued education requirement has been removed.

Administration of Standards and Authority Delegated to Municipalities

Without municipal action, the 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 officer responsible for monitoring the standards and must also send a copy of any ordinance(s) adopting these standards to the Department 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, then the municipality shall request guidance from the Department.     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.

Previous rule proposal would have allowed a municipality to seek approval by the department to adopt beekeeping standards in place prior to the passage of the law preempting municipal authority.  This ability, however, has been removed from the final rules.

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 and type of enforcement actions taken.

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

NJLM Position on Governor’s Proposed FY 2020 Budget

Tags

Business Personal Property Tax, Energy Tax, ETR, Property Taxes, State Budget

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.

Breaking Down the Cannabis Legislation, Part 3—Expungement

This 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 3^rd 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 3^rd 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.