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Monday, August 20, 2007

Sandra W. Seigel v. The New Jersey Department of Environmental Protection


In this opinion, we were called upon to interpret
regulations promulgated by the Department of Environmental
Protection (DEP) that define a "dune," N.J.A.C. 7:7E-3.16(a),
and a "primary frontal dune," N.J.A.C. 7:7-7.8(d)1ii.

Petitioner's applied for a coastal general permit under the
Coastal Area Facility Review Act (CAFRA) seeking permission to
construct a single-family oceanfront home. The agency concluded
that the entirety of petitioner's property was a "primary
frontal dune," and denied the permit.

We reversed. We interpreted the regulatory definitions and
concluded that petitioner's entire property was not a "primary
frontal dune" and determined that the proposed construction area
was not on a dune and, therefore, not subject to regulatory

We also concluded that DEP's interpretation of the
regulatory language resulted in a fundamental unfairness to
petitioner whose surrounding neighbors had constructed similar
homes on their adjacent properties. (*Approved for Publication

Department of Environmental Protection v. Johan Kafil

08-15-07 A-5364-05T2

We reverse the trial court's holding that, before DEP may
file a civil action seeking injunctive relief remediating
alleged Spill Act and USTA violations, it must first employ its
own extensive regulatory power in administrative proceedings.

Monday, August 13, 2007

OFP, L.L.C. v. State of New Jersey

08-10-07 A-3190-05T1

The Highlands Act's administrative hardship waiver remedy
must be exhausted before a property owner can assert a claim
that the Act's restrictions upon development in the preservation
area of the Highlands Region have resulted in a regulatory
taking. The retroactive application of the Highlands Act to
major development projects that received all required regulatory
approvals under other statutes during the period between the
Act's introduction and enactment is valid.

Essie Wilson v. Paradise Village Beach Resort and Spa

08-10-07 A-3055-05T5

A Mexican resort's participation in advertisements placed
by airlines and travel agencies in newspapers distributed in New
Jersey and the resort's maintenance of websites that can be
accessed by New Jersey residents do not constitute sufficient
contacts with New Jersey for our courts to exercise jurisdiction
over a claim that does not arise out of those contacts.

Roslyn Quarto. v. Maureen Adams

08-09-07 A-3904-06T1
The transitional issue presented in this appeal is whether
the Division of Taxation ("the Division") is compelled by Lewis
v. Harris, 188 N.J. 415 (2006), and the subsequent enactment of
New Jersey's civil union act, L. 2006, c. 103 ("the Civil Union
Act"), to permit a same-sex couple, married in another
jurisdiction before that statute's February 19, 2007 effective
date, to file a joint New Jersey gross income tax return for
income they earned in calendar year 2006.

Appellants, who are New Jersey residents, were united in a
same-sex marriage in Canada in 2003. Guided by the Attorney
General's Formal Opinion No. 3-2007 (regarding New Jersey's
recognition of same-sex unions from other jurisdictions), the
Acting Director of the Division denied appellants' request to
file a joint New Jersey tax return for their 2006 earnings.
Although appellants are entitled to declaratory relief
concerning future tax years, we hold that the Division is not
required to treat appellants' 2006 income as joint income. We
are satisfied that the Division may utilize a reasonable
transition period to conform its forms and procedures to the
constitutional and statutory principles espoused in Lewis v.
Harris, supra, and in the Civil Union Act. We also note that
the Acting Director's determination comports with established
administrative practices of looking to the familial status of
wage earners, for taxation purposes, during the calendar year
that their income was earned.

Judge Stern has filed a concurring opinion. The
concurrence expresses reservations about denying appellants, as
partners in a legally-recognized civil union, the right to file
a joint tax return after February 19, 2007, but defers to the
Supreme Court's remedial prerogatives.

Dennis Pryor v. Department of Corrections

08-09-07 A-1707-04T5

N.J.A.C. 10:18A-9.6 which permits the Administrator of the
Adult Diagnostic and Treatment Center to withhold from inmates
"material that is not sexually oriented" when it will "impede
the rehabilitation of the inmate(s)," is facially
constitutional, and N.J.A.C. 10A:16-4.4, concerning "inmatetherapist
confidentiality," does not violate the Eighth
Amendment, but may require a warning as to use in light of the
Sexual Violent Predator Act.

Fayette Fair Trade, Inc. t/a Club 41 v. Governing Body of the City of Perth Amboy

08-08-07 A-2429-06T5

Petitioner Fayette Fair Trade, Inc. appeals from a final
determination of the Director of the Division of Alcoholic
Beverage Control (ABC) suspending its license based on a finding
of an undisclosed business interest in the license, and the
licensee's failing to disclose that interest in the application,
or providing false, misleading or inaccurate information about
it. At issue in this appeal is whether a licensee's employee
who runs the day-to-day operations of the licensed premises with
little or no oversight from the owner of the corporation
licensee and who shares in the licensee's profits, but is not a
shareholder, holds an impermissible undisclosed beneficial
interest in the liquor license in violation of N.J.S.A. 33:1-25.
The ABC Director found unlawful conduct, and we affirm.

Monday, August 6, 2007

Tracey A. Johnson and Christopher Johnson v. Benedict A. Scaccetti

7-31-07 (A-36-06)

Chipped teeth are not “displaced fractures” under the lawsuit
threshold of the Automobile Insurance Cost Reduction Act
(AICRA), N.J.S.A. 39:6A-1.1 to -35. Once a plaintiff suffers a
single bodily injury that satisfies a threshold category under
AICRA, the jury may consider all other injuries in determining
noneconomic damages. As a matter of law, plaintiff’s spinal
injury in the within matter satisfied the limitation on lawsuit
threshold. Fnally, the trial court failed to articulate
sufficient reasons to justify a remittitur in this action.

Citizens United to Protect the Maurice River and Its Tributaries , Inc. v. City of Millville Planning Board

08-06-07 A-4204-05T2

The process by which a planning board determines whether a
general development plan (GDP) "will not have an unreasonably
adverse impact on the area in which it is proposed to be
established," see N.J.S.A. 40:55D-45d, is intended to be general
in nature and to provide the increased flexibility desirable to
promote mutual agreement between a developer and planning board regarding the basic scheme of a planned development. Consideration should be from the standpoint of probable feasibility, with more detailed presentation deferred until subsequent applications for preliminary site plan and subdivision approvals.

Applying this standard, the planning board had before it
sufficient evidence to support its determination that the
proposed GDP will not have an unreasonably adverse impact, and
we affirm the Law Division order upholding the board's approval.

In the Matter of Expungement Application of G.R.

08-03-07 A-0079-06T1

N.J.S.A. 2C:35-5a(1), criminalizes the knowing or
purposeful possession of a CDS "with intent to manufacture,
distribute or dispense" to another. The statute does not draw a
distinction between distributing or dispensing to another in
exchange for money and a gratuitous transfer of the narcotics.
Either conduct constitutes the crime as defined by N.J.S.A.
2C:35-5a(1). However, for purpose of expungement, it does make
a difference. A sale of CDS is a bar to expungement; but a
transfer for no consideration is not. Therefore, we hold that
the facts must be examined to determine if the underlying
possession of the CDS was with intent to sell, as opposed to
dispense or distribute without a sale.

A judgment of conviction for possession of a CDS "with
intent to dispense or distribute" contrary to N.J.S.A. 2C:35-
5a(1), by itself is not conclusive of intent to sell or intent
to dispense for no consideration. The description of the
offense in the judgment of conviction does not aid the judge in
deciding whether the statutory bar applies in a given situation.
To the extent that State v. P.L., 369 N.J. Super. 291 (App. Div.
2004) makes such a suggestion, we disagree with that opinion.

Danna Goldhaber v. Charles Kohlenberg

08-02-07 A-5114-05T2

New Jersey may exercise jurisdiction over defendant, a
California resident with no contacts in New Jersey, who
allegedly posted defamatory messages about plaintiffs, New
Jersey residents, on an on-line news group.

In re Adoption of N.J.A.C. 12:17-9.6 by the State of New Jersey Department of Labor

08-01-07 A-4026-05T3

This appeal challenges the facial validity of N.J.A.C.
12:17-9.6, a regulation promulgated by the Department of Labor
and Workforce Development, which provides that employees who
leave their employment to participate in "a written voluntary
layoff and/or early retirement incentive policy or program . . .
so that another employee may continue to work" are qualified to
receive unemployment compensation benefits. We hold the
regulation is invalid as a matter of law as it contravenes the
legislative policies underlying the Unemployment Compensation
Act, N.J.S.A. 43:21-1 to -71, and is inconsistent with the
Supreme Court's interpretation of N.J.S.A. 43:21-5(a) in Brady
v. Board of Review, 152 N.J. 197 (1997).

In re Vioxx Litigation

07-31-07 A-1731-06T1

We affirm the order of Judge Higbee dismissing the VIOXXrelated
claims of 98 plaintiffs residing in the U.K. on grounds
of forum non conveniens.

Ocean Seniors, L.L.C., v. Township of Ocean Sewerage Authority

07-31-07 A-6495-05T3

We affirm the decision by Judge Lehrer to reject a
challenge by the developer of age-restricted condominium
apartments to the method used to calculate the sewerage
connection fees applicable to the condominium development. In
our opinion, we rely on established precedent to hold that the
Authority's determination to impose the same connection fee both
upon single-family residences and upon age-restricted apartments
does not violate equal protection. We also reject the
developer's argument that the calculation of "service units"
should have taken into account customer communities that had
entered into contracts with the Authority for bulk treatment
services, basing our rejection principally on Judge Lehrer's
reasoning, as set forth in his opinion, which is published along
with ours.

Jeanne Klawitter and Dennis J. DeBonis v. City of Trenton

07-31-07 A-0208-05T5

This appeal by the City of Trenton presents two distinct
issues regarding employment-related claims by two members of the Trenton Police Department.

Klawitter's claim of reverse discrimination based on race
in the denial of a promotion resulted in a jury verdict in her
favor. We affirmed. We rejected the City's argument that it
was permissible to use race as a "plus" factor. The City
maintained at trial that race was not a factor in any respect.
It did not present evidence or argue that race was considered as
a plus factor. Further, race can be used as a plus factor only
pursuant to an established affirmative action plan. The City
did not establish the existence of such a plan.

DeBonis, a sergeant, filed for retirement but, within
thirty days of the effective date, sought to cancel his
retirement as authorized by a pension regulation, N.J.A.C. 17:4-
6.3, and requested to be rehired to a vacant sergeant position.
The City refused, informing DeBonis that, pursuant to civil
service regulations, his name could be placed on a reemployment
list. The trial court granted partial summary judgment on
liability in favor of DeBonis and a jury awarded him damages.
We reversed, holding that DeBonis' right to cancel his
retirement under pension regulations did not entitle him to
immediate reemployment, which, instead, was controlled by
priorities promulgated by civil service laws and regulations.