Bulletin Board Magazine 2020, Volume 2

The Appellate Division affirmed the trial court’s dismissal of the association’s claims related to the windows based on lack of standing. The court found that under the master deed, windows were unambiguously considered a part of a unit, and therefore, only the unit owners of the particular windows at issue had standing to sue for unit damages arising from the design or defect of the windows or their installation. However, the court found an exception that provided the association with limited standing. The historic preservation easement protected “all surfaces that are of historic significance,” and the exterior appearance of the windows was a surface that was subject to the easement. The association was bound by the easement, and thus, it had standing to sue a wrongdoer to ensure it remained compliant with its easement obligations. In addition, the court disagreed with the trial court’s finding that the association could only pursue a claim for damages to common elements against unit owners whose windows caused the damage. The court recognized that if the association asserted a claim against unit owners, the owners could then commence third-party actions, however, it determined that the association had a fiduciary duty to unit owners to seek relief for them and not from them. Based on this decision, builders should be aware they may, in certain limited circumstances, have exposure to claims from both unit owners and associations notwithstanding that the claims relate to damage to a unit, and not common elements, when the damaged building element is within the purview of an association’s easement rights and obligations. JACKSON SOIL IMPORT/REMOVAL ORDINANCE NJBA and SBA filed suit challenging an ordinance adopted on April 28, 2020 by Jackson Township which requires a permit

Bulletin Board | 44 | www.shorebuilders.org For new developments, the listings must be posted on the HRC, on or before the earlier of: (1) at least 60 days prior to conducting Effective November 1, 2020, affordable housing units in the State must be affirmatively marketed online through the New Jersey Housing Resource Center (“HRC”). This change was made pursuant to Senate Bill 2527, which supplemented the Fair Housing Act (“FHA”). The current rules that implement the FHA require a developer or an administrative agent of the affordable units to affirmatively market their units through advertising in a newspaper and radio or television, but it does not explicitly require any digital marketing. N.J.A.C. 5:80-26.15. The new legislation is intended to facilitate a more effective and streamlined search for affordable housing in New Jersey while still maintaining the existing marketing requirements. to be obtained for certain quantities of soil fill or excavated soil. The Ordinance is problematic for various reasons, including a lack of standards and unchecked discretion of Township officials in rendering permit decisions, the likelihood of inconsistent decision making, and excessive fees and bonding requirements. Several developers have also filed suit and the litigation remains pending. NJBA and SBA are represented by Giordano, Halleran & Ciesla. Jackson’s ordinance was based on a “model” published by DEP. In response to outreach by NJBA and environmental counsel, Giordano, Halleran & Ciesla, DEP published an updated model ordinance with several changes recommend by NJBA including among others: provisions to incorporate the permit as part of other project approvals from a Zoning and/ or Planning Board; limited timeframes for application review (30 days); exemption of class B recycling facilities; and provisions making a soil permit valid for the duration of the project. AFFORDABLE HOUSING – AFFIRMATIVE MARKETING

a lottery of the applicants; or (2) within 1 day following when the owner, developer, property manager, or other administrative entity provides any information regarding how to apply for units to prospective applicants or solicits any applications from potential applicants through any other means. For existing developments, listings regarding vacancies and waitlist openings for the affordable units must be posted on the HRC within 1 day of accepting applications. Each posting must include, at minimum: the expected date that the affordable housing units are to be completed or become available; the date of the lottery, if applicable; the number of affordable housing units; an accounting of how many of the affordable housing units will be available to very low-, low-, and moderate- income households; and each bedroom size that will be available. Evidence of the required listing on the HRC must be submitted to the municipality, and ultimately, the municipality is responsible for ensuring compliance with these affirmative marketing requirements. This legislation supplements the existing affirmative marketing requirements for affordable housing units and creates a more centralized location for people to search for affordable housing. Builders should be aware of this new marketing requirement and ensure compliance with the FHA. C-1WATERBODY APPEALS PENDING Effective April 6, 2020, the DEP adopted rule amendments to the Surface Water Quality Standards, N.J.A.C. 7:9B. The amendments upgraded the designation of approximately 600 miles of rivers and streams to “Category One” (“C-1”) waterways. EP identified 14 counties and 67 municipalities “potentially affected” by the C1 upgrades.