Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

There is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting.

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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If Courts Awarded Points For Creativity, These Defendants Might Have Received A Few!

by: Peter J. Gallagher (@pjsgallagher)

Tax sale foreclosures are rarely that interesting. This is purely my opinion, and I understand that buying tax sale certificates can be a lucrative trade, but I think I am probably not alone in saying that the field tends to be a bit dry. This is not always the case, however, and the best proof of this might be the recent decision in Lien Times, LLC v. Rader. (It is not what makes the case interesting, but Lien Times is a great name for an entity that buys tax liens.)

Lien Times started out with a fairly routine set of facts. Defendants fell behind on the taxes for their home, so the township issued a Certificate of Sale for unpaid municipal tax liens. Plaintiff purchased the Certificate of Sale. Plaintiff eventually foreclosed on the lien and the property was auctioned at a sheriff's sale . This is where it gets interesting.

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“All Animals Are Equal But Some Are More Equal Than Others”

by: Lawrence A. Calli

Owners of residential properties in New Jersey are no longer limiting themselves, in concept or use, to the idea that a person's home is a mere bastion of solitude and rest. Rather, many homeowners are expanding their use of residential lots. To be clear, we are not talking about simply adding a home office or mother/daughter suite. No, the newest trend appears to be raising livestock, and it’s not merely a trend in the southern and western counties of the State. The trend towards municipal ordinances permitting livestock on residential properties has already spread to urban areas (including Jersey City), and is regularly considered by mayors and councils throughout the State.

In a recent article, the Hopewell Valley News reported that the Hopewell Borough Council has been asked to consider an amendment to its land use ordinance that would allow residents to raise chickens in their backyards ("Hopewell: Backyard Chickens Are Council Topic"). The article notes that amendments in other parts of the State permit residents to keep as many as seven chickens within 25 feet of a neighbor’s property as long as the neighbor approves (larger flocks have to be kept 40 feet from the nearest neighbor).

Hopewell Township recently adopted an ordinance that permits residents to keep up to six chickens on their property. The ordinance gained some notoriety because it limits rooster visits to only 10 days per year, and requires that the roosters be disease-free before visiting with the hens. However, a spokesperson for Hopewell Township indicated that the amendment that Hopewell Borough adopts would not "in the slightest, possible way” mimic what occurred in Hopewell Township. In fact, "a majority of communities forbid roosters because some find the crowing noise they make a nuisance, especially if it occurs in the early morning hours."

Urban Development Incentives Under Attack

by: Katharine A. Muscalino

Revitalizing the downtowns of New Jersey’s poorest cities has always been an uphill battle, with cities struggling to find developers and businesses willing to invest in their most blighted areas. Urban facelifts and retail opportunities are in danger of becoming even more scarce, as New Jersey considers eliminating or diluting its urban enterprise zone legislation.

Under the current urban enterprise zone law, blighted cities can attract developers and businesses with special tax incentives and grants, and get a return on some of the urban enterprise zone revenues. Specifically, developers within the urban enterprise zone qualify for tax exemptions and abatements, and redevelopment bonding and grants. Businesses are permitted to charge half of standard sales taxes, attracting both new retailers and new customers to the downtowns. The result is a major overhaul for Main Street and an influx of new commerce.

Cities may be losing this tool for redevelopment as New Jersey state government considers reforms to the current legislation. Following a study that recommended terminating the 28-year old program, Governor Christie’s budget calls for the state to retain more than $90 million of the urban enterprise zone revenues. Anticipating that this retainage could undercut the urban enterprise zone program irretrievably, the New Jersey Assembly’s Commerce and Economic Development Committee is considering modifications to the urban enterprise zone statute as an alternative to the proposed budget provisions. The Assembly’s plan would maintain incentives for developers and businesses, but curb the benefits to municipalities significantly, phasing out the use of urban enterprise zone funds for police and fire services, capping municipal collection of urban enterprise zone revenues to one third of all funds through 2022, and imposing a moratorium on future urban enterprise zone funding to cities following 2022.

Coming Up Short: State Funds Insufficient to Build Projected Affordable Housing

by: Katharine A. Muscalino

Affordable housing in New Jersey has suffered its latest setback, as the New Jersey Department of Community Affairs has indicated that it will fall 8,000 units short in construction of affordable units funded by the Special Needs Housing Trust Fund. Despite its expenditure of $168 million, only 2,000 units for disabled and homeless people have been constructed. In response to inquiries from Senator Codey, the New Jersey Commissioner of Community Affairs Lori Grifa explained that “the reality is that $200 million does not produce 10,000 units, unless they can be produced for $20,000 per unit, which is an impossibility in New Jersey” according to the Star Ledger’s article, "N.J. Sen. Codey Calls On State To Explain How It Spent $168M From Special Needs Housing Fund." This may mean that the state and the New Jersey Supreme Court will look to developers more than ever to finance and construct affordable housing to assist municipalities in satisfying their fair share obligations. It may also mean that municipal Third Round Housing Element and Fair Share plans, now stayed pending the New Jersey Supreme Court’s consideration of the Third Round Rules, will come under additional challenge to extent that those plans relied on public or municipal funding.