Opinion Summaries

     This matter involves a defendant sex offender's motion to modify his judgment of conviction (JOC) and Sex Offender Restraining Order (SORO) issued pursuant to Nicole's Law, N.J.S.A. 2C:14-2 and 2C:44-8.  The SORO prohibited defendant from having any contact with the two victims—his step-daughters—his ex-wife, and their two minor biological children.  Defendant moved to modify the JOC and SORO to allow him to have contact and parenting time with his two minor biological children through a third party.

     Applying the framework established in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), this court concludes that based on similarities between a SORO and a final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the factors set forth in Carfagno are applicable to use in considering an application to modify or vacate a SORO, determining the continued necessity of a SORO.

The ambiguous indemnification provision at issue here must be construed against the indemnitee, and the Court therefore reverses the Appellate Division’s judgment. Prospectively, parties to a contract intending to extend indemnification to first parties should include express language to achieve such an agreement.

The family court does not have the authority under N.J.S.A. 30:4C-12 to dismiss a Title 30 action -- and with it, a parent’s appointed counsel -- but continue restraints on a parent’s conduct. If the family court finds that it is in the best interests of the child to continue the restraints on a parent’s conduct, it must keep the case open to facilitate judicial oversight of the Division’s continued involvement, while safeguarding a parent’s right to counsel.

     In this interlocutory appeal, defendants Blue Ocean Waters, LLC and its members Piyush Viradia and Jiten Parikh seek to vacate two orders of the Chancery court.  First, its January 18, 2023 order granting partial summary judgment to plaintiff AC Ocean Walk, LLC to judicially dissociate Blue Ocean Waters and dissolve the parties' partnership agreement under the Uniform Partnership Act (UPA), N.J.S.A. 42:1A-1 to -56.  Second, its March 13, 2023 order denying defendants' motion for reconsideration and amending the partial summary judgment order to reflect that the partnership had dissolved on October 10, 2020.

     We affirm the January 18, 2023 order granting judicial dissociation and dissolution of the parties' partnership agreement.  Defendants' failure to respond to AC Ocean Walk's September 30, 2020 notice of breach of the agreement is a clear indication that judicial dissociation was appropriate under N.J.S.A. 42:1A-31(e) as "it [was] not reasonably practicable to carry on the business in partnership with the partner."  Although no case law in our State has interpreted the "not reasonably practicable" standard for judicial dissociation of a partner, our conclusion is supported by the interpretation of like statutes in other jurisdictions.

     We, however, reverse the March 13, 2023 order by amending the effective date of the dissociation and dissolution to coincide with the date of January 18, 2023 order.  Based on the record before us and the plain language of N.J.S.A. 42:1a-39(e)(3), judicial dissolution occurs when there "is a judicial determination that . . . it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement."  Again, in the absence of our State's case law defining the effective date of dissociation and dissolution under N.J.S.A. 42:1A-39(e)(3), our conclusion is supported by the interpretation of like statutes in other jurisdictions.

This dispute involves whether a party to a contract waived its right to compel arbitration by its conduct in a lawsuit it initiated.

Plaintiffs appeal from the trial court's denial of their motion to compel arbitration of claims against defendants for nonpayment of residential construction services they rendered.  The parties' contract, which was drafted by plaintiffs, contained a provision calling for disputes to be resolved through binding arbitration.

The motion judge ruled that plaintiffs waived their contractual right to arbitrate.  Among other things indicative of such a waiver, the record shows that: (1) plaintiffs filed claims in the Law Division beyond those necessary to assert a lien under the Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38; (2) asserted in their Rule 4:5-1(b)(2) certification accompanying their complaint that no arbitration was contemplated; and (3) waited to move to compel arbitration after receiving the benefit of significant discovery, while failing to comply reciprocally with defendants' discovery demands.

Applying the multifactor test prescribed in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), this court concludes that plaintiffs waived their right to compel arbitration.  In the course of doing so, however, the court rejects defendants' contention that the United States Supreme Court's opinion in Morgan v. Sundance, Inc., 596 U.S. 411, 417-19 (2022), eradicates the Cole factor that considers whether the party opposing arbitration was prejudiced by the movant's delay.  Prejudice remains one of the pertinent, but not individually dispositive, Cole factors after Morgan.  However, that particular factor is not controlling in this case, given the totality of the circumstances that otherwise, on balance, further establish waiver.

P.S.: Please note that the court is simultaneously issuing with Marmo two unpublished opinions applying the Cole waiver factors and citing Marmo. 

The Court finds no evidence in University Hospital’s enabling statute that the Legislature intended the Hospital to be a “state administrative agency” under Rule 2:2-3(a)(2). University Hospital’s decisions and actions may not be directly appealed to the Appellate Division.

The TPAF Board acted arbitrarily, capriciously, and unreasonably when it denied Seago’s interfund transfer application. Under the unique facts of this case, equity requires that the TPAF Board grant Seago’s interfund transfer application. Seago’s reasonable and good-faith attempts to ensure that her interfund transfer application was timely filed, coupled with the absence of apparent harm to the pension fund, necessitate this outcome.

Although Beth left the hospital and did not return, Beth left Mia in a hospital where she was undoubtedly well taken care of and her needs were met.  Nothing in the facts suggest that Beth’s actions impaired Mia or put Mia in imminent danger of being impaired while she remained in the safety of the hospital’s care.  The Division therefore failed to meet its burden of establishing abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). 

     In this case of first impression, the court considers the limitations on property owners' liability under N.J.S.A. 39:3C-18, when certain classes of motor vehicles are operated on their premises.  Plaintiff in this matter claimed he sustained severe personal injuries when he struck a steel cable while riding his dirt bike on the quarry grounds owned by defendant property owners.  The cable was part of the machinery used in dredging the quarry.  The incident occurred on a Sunday afternoon, while the business was closed. 

     The motion judge dismissed plaintiff's complaint on summary judgment, concluding defendants were immune from liability under N.J.S.A. 39:3C-18 because plaintiff lacked express consent to operate his dirt bike on their property.  The judge summarily denied as moot plaintiff's motion for leave to file an amended complaint to assert allegations of willful and wanton misconduct. 

     Comparing N.J.S.A. 39:3C-18 to a similar statute under the Landowner's Liability Act, N.J.S.A. 2A:42A-1 to -10, the court concludes defendants did not act willfully to create a hazardous condition on their property by failing to lower the steel cable, within the meaning of N.J.S.A. 39:3C-18.  Because the court holds summary judgment was warranted under N.J.S.A. 39:3C-18, the court concludes the motion judge properly denied plaintiff's motion for leave to amend his complaint.

Chapter 212 is to be applied prospectively to conduct that occurred on or after August 6, 2019 -- Chapter 212’s effective date -- not retroactively to conduct that occurred before that date.  The trial judge properly dismissed the portions of the complaint relying on Chapter 212 but arising from conduct prior to its effective date.

An LSES rider does not fall within the definition of “pedestrian” for purposes of the No-Fault Act. Goyco is not entitled to PIP benefits.

The parties’ agreement to enter into an independent contractor business affiliation is enforceable under N.J.S.A. 45:15-3.2, and Kennedy, as an independent contractor, was not subject to the WPL pursuant to N.J.S.A. 34:11-4.1(b). The trial court therefore erred when it denied Weichert’s motion to dismiss the complaint

           This appeal presents a novel issue requiring the court to determine whether the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law right of public access, mandates disclosure of an attorney's identity when the attorney renders legal advice to a colleague or friend about an ongoing prosecution.  In the present matter, a municipal prosecutor sought counsel from an attorney who, in turn, rendered advice via email to the prosecutor's personal account.  The prosecutor, in turn, disclosed the contents of the email in open court and provided a printed copy of the email to the defense, but redacted the sender's name and email address.  The municipality thereafter denied a government records request for the unredacted email.

          Plaintiff Association for Governmental Responsibility, Ethics, and Transparency (AGREAT) appeals from the March 3, 2023 Law Division order denying its order to show cause to compel production of the email requested from defendants Borough of Mantoloking, its clerk, and its custodian of records.  The motion judge concluded the email did not fall within OPRA's definition of a government record.  The court affirms the order under review and further holds the email is not subject to disclosure under the common law.  The court also concludes, even if the email were a government record, the work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-9(b) weigh against disclosure.

          Smith, J.A.D., filed a dissenting opinion, concluding:  the redacted email was a public record under OPRA; the redacted email was privileged pursuant to the work-product privilege, but an attorney waived that privilege in court; a balancing of the public's access to government records with the email sender's reasonable expectation of privacy under Doe v. Poritz, 142 N.J. 1 (1995), justifies disclosure of the name and email address of the sender.

Subsection (c) of the definition of “portray a child in a sexually suggestive manner” in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of “portray a child in a sexually suggestive manner,” and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections.
1. Narrow categories of speech that are historically unprotected by the First Amendment include fighting words, obscenity, child pornography, incitement, defamation, true threats, and speech integral to criminal conduct. Child erotica is not on the list, but both obscenity and child pornography are relevant to this case. Under Miller v. California, something is obscene if (1) “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest”; (2) “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24 (1973). Whereas states may constitutionally proscribe the distribution of obscene material, possession of obscene material by the individual in the privacy of his own home is constitutionally protected. (pp. 13-14)
2. In New York v. Ferber, the Court recognized a separate exception to the First Amendment for child pornography. 458 U.S. 747, 764 (1982). The Court has upheld statutes that define child pornography as the portrayal of “sexual conduct” or “sexual acts” by children, which includes the lewd or lascivious exhibition of, or graphic focus on, a child’s genitals or pubic area. Id. at 751-53, 762. Child pornography need not meet the Miller obscenity standard to be proscribed; it is a separate type of speech that is categorically unprotected by the First Amendment. And unlike obscenity, states may constitutionally proscribe the possession and viewing of child pornography in the privacy of one’s home. But laws that ban images that “do not involve, let alone harm, any children in the production process,” violate the First Amendment unless they conform to the Miller obscenity standard. Ashcroft v. Free Speech Coal., 535 U.S. 234, 240-41 (2002).
(pp. 14-17)
3. A court may hold a law facially overbroad under the First Amendment “[i]f the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep.’” United States v. Hansen, 599 U.S. 762, 770 (2023). “[A] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.” Ibid. (pp. 17-18)
4. “[A]n item depicting the sexual exploitation or abuse of a child” was formerly defined as an image that “depicts a child engaging in a prohibited sexual act or in the simulation of such an act.” N.J.S.A. 2C:24-4(b)(1) (2017). In 2017, the Legislature amended N.J.S.A. 2C:24-4 to expand the definition to include an image that “portrays a child in a sexually suggestive manner,” which is defined in three ways in subsections (a) through (c). Subsections (a) and (b) use nearly identical language to criminalize any depiction of “a child’s less than completely and opaquely covered intimate parts” or “any form of contact with a child’s intimate parts,” whereas subsection (c) uses different language to criminalize other depictions of children “for the purpose of sexual stimulation or gratification of any person.” (pp. 19-21)
5. The first step in any overbreadth analysis is to construe the challenged statute to determine what it covers. Subsection (c) says nothing about obscenity. Although it incorporates Miller’s third prong by requiring that “the depiction does not have serious literary, artistic, political, or scientific value,” it says nothing about Miller’s first or second prongs. Subsection (c) therefore criminalizes a substantial amount of speech that does not legally constitute obscenity. Subsection (c) also strays far beyond the definition of child pornography set forth in Ferber. Where the criminalization depends only on whether “any person who may view the depiction” can use it “for the purpose of sexual stimulation or gratification,” and where the only limit is that the depiction lacks “serious literary, artistic, political, or scientific value,” large swaths of protected material are conceivably ensnared. Indeed, depictions of something other than sexual contact and less than completely covered intimate parts appear to be the only thing that subsection (c) can actually reach that subsections (a) and (b) do not. On its face, subsection (c) criminalizes only materials that do not constitute child pornography. Because the application of subsection (c) to images that constitute neither obscenity nor child pornography is realistic, not fanciful, and is substantially disproportionate to subsection (c)’s lawful sweep, subsection (c) is substantially overbroad. (pp. 23-27)
6. The Court explains why it rejects the State’s suggestion that limiting language from subsections (a) and (b) of the definition of “portray a child in a sexually suggestive manner” could be understood to apply to subsection (c) as well, noting that (a), (b), and (c) are disjunctive, that subsection (c) is not reasonably susceptible to the State’s limiting construction, and that the Court cannot re-write a plainly written legislative enactment. The Court also rejects the State’s claim that “everything that subsection (c) covers . . . fits within” the Supreme Court’s most recent definition of child pornography in United States v. Williams, 553 U.S. 285 (2008). In Williams, the Supreme Court proscribed “obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct.” Id. at 293. But subsection (c) proscribes far more than that. (pp. 27-34)
7. Because subsection (c) can be excised without impacting subsections (a) or (b), the Court holds that subsection (c) alone of the definition of “portray a child in a sexually suggestive manner” contained in N.J.S.A. 2C:24-4(b)(1) is unconstitutional. Defendant can be constitutionally prosecuted under New Jersey’s obscenity law but not under a different law that is unconstitutionally overbroad. (pp. 35-36)

          The case at issue arises out of a homicide which was captured on a home surveillance system that took place during daylight hours in the City of Trenton.  The suspect can be seen on the video walking down the sidewalk seconds before he/she reaches the victim and shoots him in the head, causing his death.  The question presented was whether a proposed expert in the field of digital forensics should be permitted to testify and proffer an opinion at trial regarding the estimated height of the individual captured on the surveillance video based upon the application of a technique called reverse projection photogrammetry.

          The court held a Rule 104 hearing at which time the State’s proposed expert testified.  Based on the evidence adduced at the hearing, the court ruled that the expert’s testimony was admissible pursuant to N.J.R.E 702.  In that regard: (1) the subject of the testimony was beyond the ken of the average juror and would assist the trier of fact to understand whether the height of the individual depicted in the video was consistent with the defendant’s height; (2) the expert was duly qualified in the field of digital forensics, including reverse projection photogrammetry; and (3) the expert’s testimony and opinions were reliable because they are “based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the field.” State v. Olenowski, ___ N.J. ___ (2023)(slip op. at 8).

Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in
the wake of the “#MeToo movement,” the Legislature removed barriers that
previously made it difficult for individuals to report abuse. Survivors of
discrimination, retaliation, and harassment now have a legal right to tell
their story -- a right that cannot be taken away by a settlement agreement.
Because the scope of the agreement in this case would bar individuals from
describing an employer’s discriminatory conduct, the agreement
encompasses speech the LAD protects. The non-disparagement clause in
the agreement is against public policy and cannot be enforced.
1. N.J.S.A. 10:5-12.8(a) provides in part that “[a] provision in any
employment contract or settlement agreement which has the purpose or
effect of concealing the details relating to a claim of discrimination,
retaliation, or harassment (hereinafter referred to as a “non-disclosure
provision”) shall be deemed against public policy and unenforceable
against a current or former employee.” The law’s shorthand reference -- the
phrase “non-disclosure provision” -- plainly draws its meaning from the
words it refers back to, not from outside sources like Black’s Law
Dictionary. When the Legislature sets out to define a specific term, as it did
here, courts are bound by that definition. As a result, labels like “nondisclosure,”
which is in the text, or “non-disparagement,” which is not, do
not control the meaning of section 12.8. The operative terms of N.J.S.A.
10:5-12.8(a) ask whether a provision in an employment contract or a
settlement agreement “has the purpose or effect of concealing the details
relating to a claim of discrimination, retaliation, or harassment.” If it does,
the agreement is “against public policy and unenforceable even if the
details relating to a claim disparage an employer. (pp. 14-16)
2. The law’s structure reinforces the conclusion that it encompasses
“non disparagement” provisions that would conceal details about
discrimination claims. Subsection (c) of N.J.S.A. 10:5-12.8 expressly
exempts particular types of clauses that might otherwise be barred by the
plain language of (a), and the Legislature could have exempted non-disparagement
agreements as well. But it did not. Certain language in
section 12.8 -- the use of “relating to” and “a” in the phrase “relating to a
claim of discrimination” -- also support a broad reading of the statute. And
the Court explains how the statute’s legislative history, though not needed
to understand section 12.8’s clear language, reinforces the law’s plain
meaning. (pp. 16-20)
3. Paragraph 10 of the settlement agreement uses expansive language that
encompasses speech about claims of discrimination, retaliation, and
harassment. The scope of the agreement -- barring all statements that would
tend to disparage a person -- is quite broad. It would prevent employees
from revealing information that lies at the core of what section 12.8
protects -- details about claims of discrimination. In that way, the
agreement directly conflicts with the LAD. The carveout at the end of
paragraph 10 does not save the agreement. The last sentence states that
“testimony or statements of Plaintiff related to other proceedings including
lawsuits” is not precluded. Section 12.8’s protections, however, extend
beyond statements made in pleadings or courtrooms. Survivors of
discrimination and harassment have the right to speak about their
experiences in any number of ways, and they can no longer be restrained by
confidentiality provisions in employment contracts or settlement
agreements. (pp. 21-22)
4. The Court reviews defendants’ specific objections to comments Savage
made in a television interview. All of the challenged comments are
protected under section 12.8, but paragraph 10 of the settlement agreement,
if enforced, would have the effect of preventing Savage from making any of
them. The non-disparagement clause in the settlement agreement conflicts
with the LAD in that it encompasses and would bar speech the statute
protects. It has the effect of concealing details relating to claims of
discrimination, retaliation, and harassment, which is directly contrary to the
LAD, and it is therefore against public policy and unenforceable. (pp. 22-
25)
5. The Court provides guidance for remand and explains that it upholds the
Appellate Division’s conclusion that defendants are not entitled to
attorney’s fees and costs, albeit for different reasons. (pp. 25-26)

The State Constitution guarantees an affirmative right to speak freely. N.J. Const. art. I, ¶ 6. The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them. Although N.J.A.C. 4A:7-3.1(j) seeks to advance legitimate interests -- “to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned” -- it reaches too far in trying to achieve those aims and chills constitutionally protected speech. The rule is overbroad under the State Constitution, and the Court strikes the relevant part of the regulation.

1. New Jersey’s Constitution provides broader protection for free expression than the Federal Constitution and practically all others in the nation. (pp. 12-13)

2. The overbreadth doctrine considers the extent of a law’s deterrent effect on legitimate expression. A law is facially invalid on overbreadth grounds if the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The United States Supreme Court’s application of the overbreadth doctrine in United States v. Stevens illustrates the principle. The Court found that the statute challenged in that case created an offense “of alarming breadth” because, although it purported to criminalize animal cruelty, the statute did not actually require “that the depicted conduct be cruel,” such that hunting periodicals could run afoul of the law. 559 U.S. 460, 474-76 (2010). The Court explained that it “would not uphold an unconstitutional statute based on the Government’s representation that it would use the statute “to reach only ‘extreme’ cruelty,” and that it could not rewrite the statute “to conform it to constitutional requirements.” Id. at 480-81. Because “the presumptively impermissible applications of [the law] far outnumber[ed] any permissible ones,” the Court held that the law was “substantially overbroad, and therefore invalid under the First Amendment.” Id. at 481-82. (pp. 14-17)

3. Consistent with the Supreme Court’s approach, the “first step” in this appeal is to examine the text of the regulation to construe its scope. See id. at 474.  The critical language in N.J.A.C. 4A:7-3.1(j) has few, if any, limits. It directs state actors to ask victims and witnesses not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great deal of protected speech, and it has no time limit. One exception appears in the text of the rule -- victims and witnesses can disclose information if “there is a legitimate business reason to” do so -- but the regulation does not offer guidance about what that means. And the regulation does not require that victims be told they are free to decline to follow the request, that they can consult with an attorney about it, or that there will be no repercussions if they exercise their protected right to free speech. Although framed as a request, there is an inherent power imbalance between the investigator who makes the request and the witness who hears it, with the result that many employees will undoubtedly give up their right to speak freely.  (pp. 17-20)

4. Counsel for the Attorney General proposed revisions that would help address the regulation’s broad scope, but the Court cannot expand and rewrite the final sentence to render it constitutional. Id. at 481. The regulation is unconstitutionally overbroad.  The Court acknowledges the State’s good-faith representations that the regulation can be narrowed, but it cannot rely on those representations to uphold the rule. See id. at 480. The Court strikes the last sentence of N.J.A.C. 4A:7-3.1(j) on overbreadth grounds based on the broad protections in the State Constitution. The Court explains why its opinion in R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005), does not alter its analysis here. (pp. 20-22)

5. In striking part of the regulation, the Court does not question the principles the regulation tries to foster. The concerns addressed by confidentiality are entirely legitimate and are also important considerations in criminal and internal affairs investigations.  The Court stresses that nothing in its opinion should be construed to limit requests for confidentiality by investigators in those settings. (pp. 22- 23)

This appeal concerns two ordinances of the Borough of Highland Park that amended its municipal code to allow cannabis retailers, consumption lounges, and delivery services to operate in the Borough, subject to operating, licensing, and tax regulations.  Although the ordinances were enacted under express authority delegated by the Legislature through New Jersey's recreational marijuana statute, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (known as CREAMMA), N.J.S.A. 24:6I-31 to -56, several concerned residents of the Borough challenged the ordinances in the Law Division as preempted by the federal Controlled Substances Act (CSA), 21 U.S.C. § 801.  They also claimed the ordinances are inconsistent with the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and other state and federal laws.  The Law Division judge dismissed the complaint as procedurally untimely and also substantively deficient for failure to state a claim.

In the published portion of this opinion, the court reverses the Law Division’s dismissal of the complaint as untimely under Rule 4:69-6(a), but affirms the dismissal of plaintiffs' preemption claims.  As to the former, the issues presented concern sufficient matters of public interest to qualify under Rule 4:69-6(c) for an enlargement of the 45-day filing period.  As to the latter, the court concludes that, as other state courts have found, the text of the CSA and federal marijuana enforcement policies do not require a finding of conflict preemption of CREAMMA or the Borough's ordinances.

In the unpublished portion of this opinion, the court remands plaintiffs' remaining state-law claims, which were dismissed without an opportunity for discovery and without a possible evidentiary hearing, if one proves necessary to resolve expert opinion and credibility issues.

Pursuant to the Solar Act of 2021, N.J.S.A. 48:3-114 to -120, the Legislature directed the Board of Public Utilities to create a solar facilities program for awarding contracts for grid supply solar facilities and net metered solar facilities greater than five megawatts.  In addition to setting renewable energy goals for the State, the Act directs the development of policy for grid supply solar siting so as not to compromise the State's commitment to preserving and protecting open space and farmland. 

To that end, the Board developed a competitive solar incentive (CSI) program in coordination with the New Jersey Department of Environmental Protection, the Department of Agriculture, and the State Agriculture Development Committee to issue recommendations and a straw proposal on siting requirements.  After a four-year process, which included extensive stakeholder engagement, the Board issued an order that launched the CSI Program. 

N.J.S.A. 48:3-119(c) sets forth seven categories of land where solar facilities shall not be sited unless authorized by a waiver.  N.J.S.A. 48:3-119(c)(7) prohibits siting solar facilities on certain agricultural soils where the grid supply solar facility exceeds the Statewide threshold of 2.5% of such soils unless authorized by the waiver process pursuant to N.J.S.A. 48:3-119(f).  N.J.S.A. 48:3-119(f) describes the waiver process but also states that in no case shall a grid supply solar facility occupy more than 5% of the unpreserved land containing prime agricultural soils and soils of Statewide importance located within any county's designated agricultural development area.

Appellant moved for reconsideration, arguing the Board misinterpreted the siting provisions of the Act codified in N.J.S.A. 48:3-119.  Among other arguments raised by appellant before the Board and on appeal, appellant claimed the Board misinterpreted the Act and ignored the legislative history.  Appellant alleged the 5% per county limit could be exceeded if the 2.5% Statewide limit was not exceeded.  The Board interpreted the siting provisions independently and held the 5% per county limit on development could not be waived. 

The court affirmed the Board's ruling and found the plain language of the Act demonstrated N.J.S.A. 48:3-119(f)'s limit on solar development to 5% of a county's agricultural land was unambiguous.  The 2.5% Statewide limit expressed in N.J.S.A. 483-119(c)(7) served a different purpose and was not a means for a solar developer to exceed the 5% per county restriction.  Moreover, applying the per county limit only after the Statewide limit has been reached could lead to the development of the entirety of a county's agricultural lands.

Given the Act's unambiguous language, the court did not need to resort to the legislative history.  Even so, the legislative history showed the Legislature intended to minimize the potential adverse environmental impacts of solar development and the Legislature never revised the 5% per county limit or stated the per county limit could be waived in either version of the bill before it became law. 

The Board's interpretation of the Act balanced the Legislature's intent to preserve the State's vital natural resources while encouraging the development of clean solar energy.  

The Borough of Englewood Cliffs retained Thomas J. Trautner and Chiesa Shahinian & Giantomasi PC, (collectively CSG), Albert Wunsch III, and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC, (collectively Surenian) to represent it in affordable housing litigation.  After judgment was entered for developer 800 Sylvan Avenue, LLC. (Sylvan), a settlement was reached between the Borough and Sylvan.  Thereafter, political control of the Borough Council majority changed hands and the newly constituted Council sued CSG, Wunsch, and Surenian, alleging professional malpractice, breach of contract, unjust enrichment, civil conspiracy, and aiding and abetting arising from their representation of the Borough in the litigation.  The Borough also sued Sylvan, alleging claims of conspiracy and aiding and abetting. 

The trial court granted defendants' Rule 4:6-2(e) motions to dismiss the Borough's complaint with prejudice.  The trial court subsequently granted defendants' motion for sanctions, ordering the Borough to pay their attorney's fees and costs for filing a frivolous lawsuit.  The Borough appeals, arguing the sanction applications were procedurally deficient; as a public entity, it is immune from paying sanctions under the FLS; and the trial court abused its discretion in finding the Borough's lawsuit was frivolous.[1]

The court rejects the Borough's arguments and affirms based on our interpretation of the FLS that the Borough is not immune from sanctions, defendants' applications for sanctions were procedurally compliant with Rule 1:4-8, and the trial court did not abuse its discretion in imposing sanctions against the Borough.

[1] After their merit briefs were filed, the Borough and Jeffrey Surenian and Jeffrey Surenian and Associates, LLC filed a stipulation of dismissal dismissing all claims and counterclaims, including but not limited to claims for attorney's fees.