ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] However, the DEP conceded that it did not apply the federal Ocean Discharge Criteria to determine whether a violation of the Clean Water Act had occurred.  By comparison, here, the Department made no comparable concessions and in fact engaged in the statutorily required inquiry into whether rates were excessive, inadequate, or unfairly discriminatory—and [...] was on notice that the Department was questioning the level of its requested premium rate increases all along.  To be sure, [...] cites cases for the general idea that due process requires that regulated parties have notice of the evidence upon which an agency will rely as well as an opportunity to know about and respond to evidence against it.  (Ab19 (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974), and Moore v. Dept. of Corr., 335 N.J. Super. 103, 108 (App. Div. 2000)).
[brief] “The general welfare of society is involved in the security and registry of titles to real \(^4\) Yet Respondent argued that “had [plaintiff] waited until May 8th, May 9th, May 10th, you wouldn’t be in the situation that you now face. ”  1T19:1-3. estate ... and the power to ensure that security “inheres in the very nature of government. ”  *BFP v. Resolution Trust Corporation*, 511 U.S. 531, 114 S.Ct. 1757, 1764-1765 (1994), quoting *American Land Co. v. Zeiss*, 219 U.S. 47, 60, 31 S.Ct. 200 (1911).  Foreclosure titles should not be placed in limbo for extended periods of time just because someone could possibly file a motion in the future.  Our constitution provides for the right to acquire, possess, protect and dispose of property.
[brief] The New Jersey Supreme Court has addressed the requirements for waivers and contractual arbitration provisions at least eight (8) times since 2014.  By far the most important requirement in this determination are the contractual principles of mutual assent and meeting of the minds and clear evidence in support thereof.  These decisions also require a strict approach/focus on the unequal relationship between the contracting parties and/or the adhesional nature of the contract.  The insertion of an arbitration clause in a contract is “an acknowledgment” that the parties may be future adversaries.  Its use by [...] in its Small Business Contract shows that this was an [...] business strategy and that [...] selected the forum in which any future disputes would be decided to gain an edge over its customers.  In doing so, [...] places its interests above its customers’.  Here, the customer obviously was not anticipating how, where, and by what rules, future disputes would be decided.  The customer’s only interest was the price and amount of security equipment in the transaction.  The insertion of waiver and exculpatory clauses in a contract is an acknowledgement that the parties already are adversaries and that one party is already seeking an advantage.  This conduct violates public policy and is “particularly disfavored” in contracts for “professional services defined as ‘involving specialized knowledge, labor or skill’. ”  *Lucier v. Williams*, 366 N.J.Super. 485, 496 (App. Div. 2004).  PROCEDURAL HISTORY
[brief] Pa270; compare Pa191.  At the beginning of the meeting, the Council’s attorney explained that “[t]here was a number of things that were said at the time of the public hearing and at the time of the introduction of this ordinance that were not accurate and I – or were misleading and I wanted to – after the meeting I spoke to many of the Council people and once I kind of laid out what the appropriate facts were with regard to this ordinance it was the Council’s determination and the Council President’s determination to put it back on for introduction.
[brief] \(^5\)  When [...] was on the stand, he tried, quite inappropriately, to influence that decision by offering his lay opinion that defendant’s actions right after the shooting -- in fleeing the scene by running across the street and into backyards rather than ducking into a nearby business on the street where the shooting occurred -- were “suspicious” and by telling the jury that, as a result, the detective “suspect[ed] that that individual had just been involved with the shooting” and was armed.  (2T 55-9 to 16; 2T 57-18 to 19; 2T 65-9 to 11)  Defense counsel objected (2T 55-17), but the judge overruled the objection and allowed \(^5\)  The prosecutor acknowledged on the record that that planted-evidence theory was one he was fighting in the case.  (7T 9-11 to 20) the testimony.  (2T 56-6 to 8)  Because the New Jersey Supreme Court has been very clear that such opinion testimony, from a lay witness, is utterly inadmissible when the topic is a matter, such as the characterization or interpretation of a particular person’s actions, that is exclusively within the province of the jury to decide based merely on the evidence it has heard, and because this particular improper opinion was offered to bolster the State’s case, not only was N.J.R.E. 701 clearly violated, but defendant was also denied due process and a fair trial under the Fourteenth Amendment and the state constitution.
[brief] Contrary to his pretrial statement to [...], [...] denied that he could identify the person driving the Audi or the shooter; rather, he testified that the car’s occupants, the number of which he was not able to observe, wore “black masks. ” (5T 28-5 to 10).  Following a Gross\(^5\) hearing, the \(^5\) State v. Gross, 121 N.J. 1 (1990).  trial judge determined that [...]’ pretrial statement was reliable and admissible.  (5T 134-15 to 18).  The State played a redacted DVD version to the jury.
[brief] (Tr. II: 72).  ¶28.  On January 11, 2006, [...] e-mailed a draft statement of facts for a civil complaint against [...] to [...].  (Ex. 9).  The e-mail contained two attachments: a summary of claims and a statement of facts.  (Id.).  ¶30.  On March 7, 2006, [...] filed the complaint with the United States District Court for the District of New Jersey.  (Ex. 2).
[brief] For all of the reasons discussed in the trial court’s opinion and in this brief, the decision of the Board to grant the subdivision requested by the Applicant is supported by substantial credible evidence in the record and conforms fully with applicable legal requirements.  The Board’s memorializing resolution contains all necessary findings of fact and conclusions to explain the Board decision.  The Board did not act arbitrary, capriciously or unreasonably and therefore, the decision of the Board should be upheld and affirmed.
[brief] A.  **The Property, The Lease And The Solar Rights**  At all times relevant to the claims in this lawsuit, [...] owned real property located in Holland Township, Hunterdon County, New Jersey, consisting of approximately seventy (70) non-contiguous acres (the “Property”).  [FEDa94; FEDa1008; Pa3300].  As a result of its ownership of the Property, [...] owned certain rights for the development of a solar energy farm at the Property, which it offered to sell to Appellant, [...], in 2015.  [FEDa46; FEDa 94-105].  The development of a solar project such as the one in question involves numerous interrelated development activities such as obtaining a suitable site, designing the plant, maximizing energy yield, securing power purchasers and obtaining all necessary authorizations and permissions from the utilities and local, state and federal agencies (the “Solar Rights”).  [FEDa45; FEDa113; Pa3301].  These Solar Rights are contractual in nature and are specific to the Property.  [FEDa113; Pa3301].  By way of a Purchase and Sale Agreement, [...] purchased all of [...]’s Solar Rights for $600,000 plus reimbursements, which was paid by [...] in September 2015.  [FEDa47; FEDa94-105].  Appellant, [...], was formed in or around 2015 as a special purpose entity to develop a utility-scale solar energy farm to be located at the Property (the “Solar Project”).  [FEDa113].  [...] obtained a Wholesale Market Participation Agreement (the “WMPA”) in conjunction with [...] (“[...]”) and [...] (“[...]”).  The WMPA permits the sale of electricity generated at the Property to a local utility.  The Interconnection Agreement with [...] allows the owner of the Solar Project to connect a utility and obtain the right to earn Solar Energy Renewable Credits (“SREC”) from the New Jersey Board of Public Utilities pursuant to the New Jersey Solar Act.  [FEDa113-14]. \(^2\)  Together with the sale of the Solar Rights to [...], [...] entered a land lease agreement with Appellant, [...], on or about September 1, 2015 (the “Lease”).  [FEDa113; Pa1009; Pa3238-39].  Pursuant to the Lease, [...] was required to make an annual rental payment to [...] on September 1 of each year of approximately $206,000.  [FEDa113; Pa1009].
[brief] Appeal of Emmons involved a police officer’s “refusal to cooperate in an examination to determine his sobriety following an off-duty automobile accident in [the town he was employed] in which he was personally involved. ”  63 N.J. Super. 136, 138 (App. Div. 1960).  Herbert v. Atlantic City addressed allegations that a “semi-intoxicated” off-duty police officer “acting as a collector for a bawdyhouse keeper” through threat of official action against a third-party hotel where the presumed debtor was ensconced.  87 N.J.L. 98, 101 (1915).  Both instances were clearly connected to the public employee’s jobs.  In summary, these cases involve a different type of public servant whose position was controlled by a different statutory standard for removal than a sewerage \textsuperscript{4}  Police officers have far-reaching powers and a duty to always enforce the law (on or off duty).  As a result, police officers must adhere to higher standards than other public officials.  This is vastly different than the role held by [...], a part-time commissioner serving a set term in office, whose removal is governed by a specific statute with a different standard than that applicable to police officers.
[brief] ”  *Adim*, 410 N.J. Super. at 423-24 (citing *Figueroa*, 190 N.J. at 221; *State v. Czachor*, 82 N.J. 392, 407 (1980)).  To decide if the period of deliberations has been “reasonable,” “a judge should weigh all the relevant circumstances including the length and complexity of the trial” and “whether the jurors are of the view that continued deliberations will be helpful.
[brief] [...] moved in the trial court on June 25, 2019 seeking a determination that the property was abandoned.  In support, [...] submitted a certification executed by [...], a licensed building inspector, who asserted the property had been abandoned and had not been legally occupied for at least the prior six months.  ...  In July 12, 2019, viewing it as unopposed, the motion judge granted the abandonment motion, by way of succinct written opinion that relied, for the most part, on [...]’s certification.
[brief] (B-3)  February 26, 2018 – Correspondence from [...], Esq. to [...], Esq. (B-4)  February 27, 2018 – Correspondence from [...], Esq. to the Honorable [...], P.J.Ch. with proposed form of Order (B-5)  March 12, 2018 – Correspondence from [...], Esq. to [...], Esq. with photographs (B-6)  March 28, 2018 – Correspondence from [...], Esq. to [...], Esq.  (B-7)
[brief] The exception is where the arbitrator was as important to the agreement as the agreement itself.  McGuire, infra  The Court thoroughly examined the Agreement and found that the intent of the parties which was the clear and unmistakable, was to arbitrate.  (See Clause G of Exhibit) and that the Agreement is absent any reference of litigating the dispute and further that [...] was not intended to be a condition to arbitrate and emphatically not as important to the agreement as the agreement itself.  Astra Footwear Indus. V. Harwyn Intl. Inc., 442 F.Supp SDNY 1978).  Therefore, a substituted arbitrator should be appointed (McGuire)  The Court rejected Defendant’s case law and found that the parties did not present any evidence to indicate [...] was the only person who could logically arbitrate this dispute and that [...] was not central to the arbitration agreement.  It rejected the holding in Moss v. First Premier Bank, 835 F.3d 260 (2nd Cir 2016) as factually distinguishable and similarly found factual distinguishment of In Re Salomon Inc. Derivative Litigation, i.e. Guttfreund v. Weiner, 68 F3d 554 (2nd Cir 1995) and Caridco v. Dell Inc.  No. C06-1772JLR 2009 Dist, Lexus 104600 (WD Wash Oct 26 2009)  A reading of these cases expose the clear fatal differences with this matter, leaving no doubt whatsoever of their lack of precedential value.  Clear guidance is found for appointing a substituted arbitrator for one who has died where the decedent arbitrator had previously decided liability and that on the issue of damages and fees remained to be decided.  Trade and Transportation Inc. V. Natl Petroleum Charterers, 911 F2d 191 (2nd cir 1991)  C. CASELAW AND INTERPRETATION
[directive] Addendum B | April 2022  Vehicular Pursuit Policy (b) whether the identity of the violator is known so that later apprehension is possible; (c) degree of risk created by pursuit: (1) volume, type, speed and direction of vehicular traffic; (2) nature of the area (residential, commercial, school zone, open highway, etc.); (3) population density and volume of pedestrian traffic; (4) environmental factors, such as weather and darkness; and (5) road conditions (construction, poor repair, extreme curves, intersections controlled by traffic signals or signs, ice, etc.); and (d) police officer characteristics: (1) driving skills; (2) familiarity with roads; and (3) condition of police vehicle.  3.4  The pursuing officer shall terminate the pursuit under the following circumstances: (a) if instructed to do so by a supervisor; (b) if a supervisor has not affirmatively authorized the continuation of the pursuit after being notified and given an opportunity to assess the situation; (c) if the officer believes that the danger to the pursuing officers or the public outweighs the necessity for immediate apprehension of the violator; (d) if the violator’s identity is established to the point where later apprehension may be accomplished and where there is no imminent threat to the safety of the public or police officers; (e) if the pursued vehicle’s location is no longer known or the distance between the pursuing vehicles and the violator's vehicle becomes so great that further pursuit is futile; (f) if there is a person injured during the pursuit and there are no police or medical personnel able to render assistance; (g) if there is a clear and unreasonable danger to the police officer or the public.
[brief] \(^1\)  The two Law Division dockets numbers are [...] and [...].  Appellants/plaintiffs are solar-energy developers.  In 2015, Appellants purchased certain solar-energy developmental rights from Respondent/defendant [...] and simultaneously entered into a confidential land-lease as separate transactions.  The cost and consideration to purchase the solar-energy developmental rights was $706,000 and was confirmed with an Assignment and a Bill of Sale.  Separately, --- 1  On September 23, 2022, appellants filed a motion to consolidate the two appeals as related.  As this brief is being filed before that motion is resolved, appellants regurgitate their position in favor of consolidation with the anticipation that the motion would have resulted in consolidation before this brief is reviewed.
[brief] Case Law Cited by Defendant Is Inapposite (Pa1-Pa16)  Close scrutiny of the authority cited by Defendant does not help Defendant.  Rather Defendant has collected those cases addressing whether a secured lender may carve out an arbitration exception for foreclosure-type remedies.  Without acknowledging that critical distinction, Defendant excerpts language from the cases apart from its proper context.  Defendant then blurs the vital distinction between case law that allows for a limited carve-out for foreclose-type remedies and cases addressing “egregious” exceptions “that specifically carves out an exception for the corporate drafter of the clause to pursue collection actions in court.
[brief] The Planning Board’s Approval was based upon the Application and Site Plans and various AHI’s owned by plaintiffs.  On June 12, 2017, the Planning Board adopted a Resolution implementing its May 8, 2017, Approval, stating:  HOLLAND TOWNSHIP PLANNING BOARD RESOLUTION  [...] BLOCK 2, LOT 1.02 AND BLOCK 4, LOT 1  Page 17  June 12, 2017  WHEREAS, on May 8, 2017, the [...] voted with respect to the Application and the attendant requested relief, as follows:  A.  TO GRANT THE FOLLOWING:  1.  Variance relief pursuant to N.J.S.A. 40:55d-70c(2), from Section 100-21.M(2)(b) of the Holland Township Land Use Ordinance which requires that a 300' riparian buffer be provided on both sides of a C-1 designated waterway whereas the Applicant requests only a 150' riparian buffer.  Exhibit 5; FAC ¶ 45, Pa1619.  Of the 10 members of the Planning Board, the Approval was unanimously consented by nine and one member did not vote as “Absent/Ineligible. ”  FAC ¶ 46, id.  As stated above, in the solar energy industry, the Application, Resolution, Lease, Site Plans, Planning Board Approval, WMPA, Interconnection Agreement and SREC's are all independently marketable assets and collectively comprise the "Solar Rights."
[brief] The defendants recklessly and wantonly violated plaintiff’s rights including recklessly and wantonly refusing to provide the plaintiff with her psychiatric medications for almost an entire week.  Defendants state that plaintiff was not damaged by being denied the ability to go to Court on her matter.  Defendants fail to understand that plaintiff’s constitutional right to assistance of counsel and her constitutional right to a speedy trial as guaranteed under Article 1 para 1 and 10 were injured and damaged.  The plaintiff who was confined in a prison setting away from home, sustained pain and suffering and severe emotional distress by being forced to worry and fret about being deprived of attending her Court matter and being denied access to her attorney.  The Appellate Division on page 16 and 17 of its opinion already expressly stated that plaintiff made a cognizable claim for deprivation of her constitutional right to access courts, resulting in specific harm related to her confinement.  The Appellate Division stated on page 9 and 10 of its opinion that it was “satisfied that plaintiff plead the elements of a cognizable claim” for “BREACH OF INMATE DUTY OF CARE as laid out by the plain meaning of the words and the facts and First Count of the Complaint. ”  The Appellate Division disagreed with the defendants that plaintiff had to show who owed the duty, what duty was owed and how she was damaged at this stage [prior to discovery].  Per the Appellate Court, “giving plaintiff every reasonable inference of fact and searching the complaint thoroughly and with liberality, as we must do under Rule 4:6-2 we are satisfied plaintiff plead the elements of a cognizable claim. ”  Plaintiff showed that the prison had duties to her that were breached as presented in her Amended complaint and Notice of Claim.  Because this was a Rule 4:6-2 (e) motion, pursuant to Printing Mart-Morristown v. Sharp Electronics Corp., the Court is required to take a hospitable and generous approach in reviewing the complaint at this preliminary stage.
[brief] Rule 4:9-3 was written into law via *Brown v. Kennedy Memorial Hosp.-University Medical Center (Cherry Hill Div.),* 312 N.J.Super. 579 reading in pertinent part as follows:  "...An amendment to a pleading relates back to the date of the original pleading "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or..." occurrence set forth or attempted to be set forth in the original pleading. ”  R. 4:9–3.  The rule accomplishes “substantial justice on the merits by permitting a technical and otherwise fatal flaw to be corrected where such correction will not materially prejudice another party. ”  [...], Current N.J. Court Rules, comment 2 on R. 4:9–3 (1998).  When a period of limitation has expired, only distinctly new or different claims are barred, not those pertaining to the same subject matter.  Harr v. Allstate Ins. Co., 54 N.J. 287, 299–300, 255 A.2d 208 (1969).  A germane claim is entitled to relation back, and it is within the discretion of the court to decide whether a new and different claim relates back.  See Wimmer v. Coombs, 198 N.J.Super. 184, 188, 486 A.2d 916 (App.Div.1985)….  As a result, any claim made after the expiration of a statute of limitations can be saved via R. 4:9-3.  [...] may have overlooked the existing law regarding the relation back rule.
[brief] An email from [...], who was the Town Administrator to [...] and [...] from [...], dated July 16, 2020, indicates that the Town Administrator had been travelling Kearny Avenue in 2020 to observe for paver defects and thus, had an opportunity to observe the pothole existing at the accident location.  (Pa. 386).  Another email from [...] to [...], dated October 2, 2020, states, “Stephen . . .as previously requested we have an item for resetting pavers included in the Kearny Avenue Roadway Improvements project.  I have the Town’s DPW list for the paver problem areas and our office also has walked the streetscape and generated a list. ”  (Pa 400).  These facts raise a question of fact as to whether the town had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
[brief] Plaintiff’s attorney advised that the LSRP was responsible for determining when the property was cleaned up.  (T1, 25:12-19).  No such RAO can be issued at this time because the LSRP has not finished its environmental investigation.  The ACO with NJDEP required the LSRP to issue a RAO for soils by March 31, 2024.  (Da7, ¶26).  That could not happen because the LSRP had not completed the necessary testing to determine what remedial action was required.  The LSRP testified, “we did our first groundwater sampling in May.  We did some aquifer testing in June, and then last week was our first, say, robust soil investigation. ” (T1, 29:17-19).  Data from this testing was not available for several weeks after the JLUB hearing and would not be provided to the Borough’s LSRP until Mid-August 2023.  (T1, 18:9-16).  The missing data is necessary to determine the type of remediation needed and the time to complete the same.  Plaintiff’s LSRP noted, “[w]hat will dictate the length of time for the remediation will be the results of that groundwater monitoring.
[brief] While simultaneously raising a factual issue that the trial court did not rule on, the State urges this Court to not consider a factual issue that the trial court did rule on, and which [...] raised in his opening brief: whether, even if N.J.S.A. 39:4-126 requires a motorist to signal a lane change when other traffic may be affected by the movement, police still did not act lawfully in stopping [...]’s vehicle because those circumstances were not present.  (Db 20-23; Sb 46-47)  This Court should reject the State’s hypocritical contentions.  Although the State is technically correct that the defense motions below did not focus on the issue of whether police reasonably believed that [...] was required to signal her lane change, there is a full record and a trial court ruling on the issue, such that appellate review is appropriate.
[brief] There have been two principal uses in existence on the Property since 1997.  The Application merely proposes to replace the permitted agricultural with a permitted as-of-right industrial use in the Industrial Zone.  No changes are proposed related to the cell tower use.  Importantly, the applicable Ordinance allows two principal uses on the Property so long as they are part of a united and comprehensive site plan, facts clearly detailed on the site plans for the Application.  The plain language of [...] Ordinance § 250-4, defines “principal use,” and allows mixed use of more than one principal commercial or industrial use if the Planning Board finds that the uses are “part of a single site plan,” which Plaintiff properly demonstrated in its site plan.