David J. Byrne

New Jersey Supreme Court Affirms Condominium’s Ability to Limit Alleged “Emotional Support Animals,” Clarifying the Process To Be Used For ESA Accommodations

Ansell Grimm March 18, 2024

On Wednesday, March 13th, New Jersey’s Supreme Court released its long-awaited decision in the Players Place II Condominium Association v. K.P. case. In 2018, a resident claiming to be disabled for New Jersey’s Law Against Discrimination (“LAD”) adopted a dog that would ultimately weigh almost 65 lbs. despite Players Place II’s rule prohibiting dogs weighing more than 30 lbs. The association rejected the request, concluding that the resident did not need accommodation because she could have adopted a dog that weighed less than 30 lbs. (in which case, issues connected with disability and LAD would have been irrelevant). Further, the association concluded that the resident was neither “disabled” for the purposes of LAD nor was this particular 60+ lb. dog necessary to afford her equal use and enjoyment of her unit. The association prevailed at trial concerning LAD, establishing that its 30 lb. weight limit rule was reasonable and that the resident was not disabled for LAD. The association also prevailed on appeal, with the appellate court concluding that while the resident may be disabled, the particular dog in question was not necessary to afford the resident’s equal use and enjoyment of her unit.

The New Jersey Supreme Court decision focused on two (2) things. First, it clarified for everyone going forward how emotional support animal requests made by residents claiming to be disabled must be handled by both the resident and the housing provider (whether a condominium, apartment complex or otherwise). If possible, the parties should engage in a good-faith collaborative discussion before the actual adoption of the animal in question. The court set forth how LAD should be applied in these situations, what the resident must demonstrate, and what the housing provider must demonstrate. The court interpreted the relevant parts of the LAD so that relevant words, such as “disability,” are more easily understood. The court ruled that an ESA doesn’t necessarily need to have been “prescribed” by a health care professional. The court articulated the factors a housing provider must consider when deciding whether a request can be reasonably accommodated.

Second, the Supreme Court focused on the particular facts of the dispute between Players Place II and K.P. More specifically, whether an association must always grant the accommodation request of one claiming to be disabled, how the LAD must be applied in the face of an accommodation request, and whether Players Place II’s rejection of this resident’s request constituted a violation of LAD. In this regard, the Supreme Court agreed with Players Place II that the resident bears the overall burden of proof. The resident must prove that she is, in fact, disabled as “disabled” as defined by LAD and that the accommodation desired is necessary to alleviate at least one (1) symptom of the resident’s disability. Only then must an association establish that the request cannot be reasonably accommodated. The Supreme Court concluded that the association and the resident should proceed back to the original court where another trial should take place, a trial that decides whether this resident needs this particular animal to afford equal use and enjoyment of her unit and, if so, whether Players Place II can reasonably accommodate the animal.

Ultimately, the New Jersey Supreme Court’s decision should help New Jersey’s association better understand the law and how to apply it when faced with an ESA request. The decision also confirmed that associations, depending upon the circumstance, may very well have the right to reject an ESA request. Lastly, the Supreme Court’s decision leaves open, to be decided at a 2nd trial, whether it can deny this accommodation request without violating the LAD.

Department Chair David Byrne discusses the case with Law360 (subscription required) and Bloomberg Law.

All condo and co-op boards in New Jersey should consult with experienced community association counsel to ensure compliance. If you have questions or concerns, please contact David Byrne or one of the attorneys in our Community Association Law practice group.

September 2022 Newsletter

Ansell Grimm September 26, 2022

Klein Helping Clients with Property Sales and Acquisitions Across the State

Jason S. Klein, Esq. (a) assisted a client in the acquisition of a 200-plus unit multifamily complex located in Morris County, through a membership interest purchase, which also included assistance with financing from a large regional bank and multiple 1031 exchanges; (b) assisted a client in the disposition of retail center on the boardwalk in Cape May county; (c) assisted a client in the sale and simultaneous disposition of a property in located on Route 22 in Somerset County; and (d) represented a client in the simultaneous acquisition of two retail properties in Monmouth County, from two (2) separate owners and assisted with negotiating and closing the acquisition financing in connection therewith with a large New Jersey-based bank.

Come See Us at the CAI Expo on October 20

The Community Association Practice Group will be exhibiting at the New Jersey Community Associations 2022 Annual Conference & Expo on October 20.
The 2022 CAI Conference & Expo will be held from 8:30 a.m. to 3 p.m. at The Event Center @ iPlay America located at 110 Schanck Road, Freehold, NJ.
CAI’s Annual Conference & Expo provides learning and networking opportunities for homeowners, managers, and business partners. Registration is free for all homeowners and community association managers and includes complimentary breakfast and lunch, educational programs, and multiple chances to win $1,000 during the show (must be present to win).
When you are at the expo, please visit us at Booth #823. You can also contact David J. Byrne, Esq. if you wish to set up a meeting with one of our attorneys while you are at the conference.

Brodsky Wins Approval for Projects Across Monmouth County

Zoning and Land Use Department co-chair Rick Brodsky, Esq. had a very productive summer winning approval for several projects before municipal boards throughout the county.

In June, the Shrewsbury Land Use Board voted unanimously to grant Use Variance and site plan approval, permitting the Applicant, Restore Hyper Wellness, to operate a health and wellness facility for customers seeking general wellness and anti-aging services and athletic recovery, including natural reduction of inflammation at 1079 Broad St. In July The Marlboro Township Zoning Board voted unanimously to grant variance and site plan approval permitting the Waitt Funeral Home to undertake significant renovations, upgrades and additions to its existing, long-standing building on Route 79.

Also in July, the Ocean Township Zoning Board, unanimously approved the application of Gold Coast Cadillac, granting site plan approval, with variances, permitting the renovation/expansion of the existing Cadillac car dealership on Route 35.

In August, the Long Branch Planning Board adopted the Resolution of Approval for its July unanimous decision to permit a four-lot Major subdivision application from Chelsea LLC.

Moin, Oliver, and Sherman Join Ansell Grimm & Aaron

Three new attorneys, Irina Moin, Esq., Jonathan Sherman, Esq., and Leigh Oliver, Esq., have joined the firm. Ms. Moin is licensed to practice in NY and NJ and will be joining both the Corporate Finance and Banking Department and Cannabis Law Department.

Ms. Oliver is a new associate in the Family Law practice and Mr. Sherman is working in the Commercial Real Estate Department.

Bauchner Receives New Jersey Law Journal Innovator of the Year Award, Appointed to NJSBA Foundation Committees

Joshua S. Bauchner, Esq. has been named one of the New Jersey Law Journal’s “Innovators of the Year” for 2022. Bauchner is one of just four attorneys in the state selected for the honor.

Bauchner also has been appointed by the New Jersey State Bar Foundation to the Publication Oversight Committee and the Editorial Advisory Board of the Respect Newsletter for 2022-23 by Foundation President Kathleen N. Fennelly, Esq.

The New Jersey State Bar Foundation is committed to the principle that public understanding of our legal system is essential to preserving the liberties that are fundamental to our democracy.

Shapiro and Barber Win Relief Against Prospective Buyer’s False Claim

Through, targeted discovery, Lawrence Shapiro, Esq. and Kelsey Barber, Esq. succeeded in having a contract buyer dismiss its complaint to enforce a contract of sale and discharge a Lis Pendens recorded against AGA’s client’s commercial property. Plaintiff Lebanon 123, LLC sought to compel Kullman Associates, LLC to sell real property known as the Kullman Corporate Campus in Lebanon, New Jersey for $13,500,000.

Kullman terminated the contract and refused to transfer title claiming that Plaintiff failed to meet its contractual obligations, including fully funding the deposit. Despite representations from the title company escrow agent that the deposit was received, AGA’s strategic discovery uncovered evidence that the deposit was never fully funded and, in fact, what had been funded was returned to Plaintiff, even before the suit was filed. AGA then moved for summary judgment and put Plaintiff on notice of their claims being frivolous which resulted in Plaintiff voluntarily dismissing its complaint and freeing the property for Kullman’s use and remarketing.

Bauchner to Moderate NJSBA Cannabis Law seminar

Joshua Bauchner, Esq. and Lisa Gora, Esq. of Epstein Becker & Green, PC will moderate a discussion on the latest developments in cannabis law at the New Jersey Law Center in New Brunswick, on October 26.

The topics covered in the seminar include:

Psychedelics — The New Cannabis
Cannabis in NJ Towns: Municipal and Local Applicant Perspectives
Diversity, Equity, and Inclusion

There will also be a Q & A session The event runs from 2-5 p.m. and a companion webcast will be available online. Attendees can receive Continuing Legal Education credit for NJ, PA, and NY. Information on the credits provided is available on the event registration page.

A happy hour will follow at the Law Center, after which the NJSBA Cannabis Law Committee, which Bauchner and Gora co-chair, will convene.

Court Case Corrects Planning Board Denial

Litigation Department co-chair Lawrence Shapiro, Esq. succeeded in overturning the Planning Board of the Borough of Rumson’s denial of an application to subdivide property into two developable lots.

In overcoming the Board’s decision on behalf of the applicant, Michael McCarty, Shapiro demonstrated that the Board had erred in siding with objecting neighbors in refusing to grant minimal variances of lot circle, front yard setback, and lot width/frontage.

Notably, the Court reversed the Board’s decision resulting in the approval of the subdivision, with variances, on behalf of the applicant. In doing so, the Court found the Board’s reasoning to be a “sham” for its desire to maintain larger lot sizes in the zone.

Rosenstein Wins Long Court Battle to Protect Client

Ansell Grimm & Aaron, PC was retained by a trucking and rigging company after one of its employees sustained substantial injuries on a jobsite. Despite the project being covered by an Owner Controlled Insurance Program (OCIP), the contractor that retained our client failed to notify our client of the OCIP and did not enroll our client in the program. Making matters worse, our client’s insurance brokers failed to identify and advise the client about an exclusion in its commercial general liability policy that contained an “Absolute Employee and Worker Injury and Liability Exclusion endorsement,” leaving our client vulnerable to the claims asserted in the action. While our client was shielded against direct liability from the plaintiffs, the employee filed an action against the other entities involved in the project — some of whom subsequently filed a third-party action against our client.

Seth Rosenstein, Esq. of AGA’s litigation practice group handled this matter, aggressively defending the action and adding the client’s insurance brokers as fourth-party defendants on the basis that but for their negligence, the client would not have been left without insurance coverage for third-party action claims. After over four years of litigation, our efforts resulted in an ideal settlement whereby our client did not contribute any funds to the settlement and received a global release from all parties involved.

David J. Byrne to Present at CAI Webinar on April 20

Ansell Grimm April 13, 2022

The one-hour webinars focus on important issues affecting the rights, operations, and business of common interest communities. Mr. Byrne’s presentation, on April 20^th, will focus on the rights of — and strategies available to — community associations facing the demands of owners and/or residents who claim to be disabled, including those who seek accommodations with respect to animals characterized as service or emotional support

Registration is free and currently open for all CAI-NJ members via the CAI-NJ website. Community association managers will receive 1 CEU credit for attending.

Come see us at the CAI Expo on Oct. 21

Ansell Grimm October 6, 2021

AGA’s Community Association Practice Group will be exhibiting at the New Jersey Community Associations 2021 Annual Conference & Expo on October 21^st, 2021.

The 2021 CAI Conference & Expo will be held from 8:30 a.m. to 3 p.m. at The Event Center @ iPlay America located at 110 Schanck Road, Freehold, NJ.

CAI’s Annual Conference & Expo provides learning and networking opportunities for homeowners, managers and business partners. Registration is free for all homeowners and community association managers and includes complimentary breakfast and lunch, educational programs, and multiple chances to win $1,000 during the show (must be present to win).

When you are at the expo, please visit us at Booth #823. You can also contact David J. Byrne, Esq., if you wish to set up a meeting with one of our attorneys while you are at the conference. Mr. Byrne can be reached at djb@62q.f7d.myftpupload.com or by calling 609-751-5551.

Byrne set to speak at Webinar

Ansell Grimm August 12, 2021

David J. Byrne Esq., Chair of Ansell Grimm & Aaron’s Community Association Law Group, will be a featured presenter at the Community Associations Institute of New Jersey’s Wednesday, August 18^th, Webinar. CAI’s Webinar one-hour Webinar will begin at noon. Mr. Byrne’s presentation will focus on the rights of, and strategies available to, community associations facing demands for accommodations, emotional support and service animals.

Registration is free and currently open for all CAI-NJ members via the CAI-NJ website. Community association managers will receive 1 CEU credit for attending.

Radburn Regulations bring new rules for Board Meetings & Minutes

Ansell Grimm June 3, 2020

In 2017, New Jersey’s legislature amended New Jersey’s Planned Real Estate Development Full Disclosure Act, commonly known as PREDFDA. These amendments have been labeled the “Radburn Amendments”. PREDFDA has always been administered by parts of New Jersey’s Department of Community Affairs (“DCA”). To that end, DCA has adopted regulations it claims are necessary to “implement” and/or “enable” relevant owners to “more easily and fully comply with” the Radburn Amendments. These regulations will likely be known as the “Radburn Regulations”.

The Radburn Regulations attempt to ensure that, no matter what, every “binding” decision of a board is first and only made at a board meeting open to attendance. These regulations define “binding vote” as a vote “made with a quorum of the executive board members present”. A board vote occurring at a “closed meeting” or via another forum has been expressly declared to be NOT binding. Now, owners can only be excluded for a “discussion” concerning a limited group of matters including those matters involving an unwarranted invasion of privacy and matters involving communications that should be confidential in light of the association’s attorney-client privilege. Any actual binding decisions concerning any of those matters must be first and only made at a board meeting open to attendance of owners. For every board vote, the board must provide to those in attendance a “brief explanation” of the basis for and “cost entailed” in the vote. There are a variety of strategies and arguments available to an association that hopes to minimize the burdens that the Radburn Regulations will place on associations in this regard.

The association must produce minutes concerning every board meeting open to attendance of owners. These minutes must be “legible”, noting the board members that participated. The minutes must clearly identify any “matters addressed”, any matters voted on, along with the basis for “and cost entailed in the matter which” was the “subject of the vote”. The minutes must be available to owners before the next board meeting, even if those minutes have to be identified as “draft”. Lastly, if a board elects to record its meeting, the recording must be available to owners.

New Rules for Notification of Board Meetings Under Radburn

Ansell Grimm June 2, 2020

The Radburn Regulations expressly address how “notice” of “board meetings” must be done. After the “annual meeting” – which the Radburn Regulations now make mandatory – the association has 7 days to “post, and maintain posted throughout the year, an open meeting schedule of the” board meetings. This annual schedule must identify the “time, date, and locations of each” meeting and be posted in at least 1 location identified by the Radburn Regulations. Any changes to the annual schedule of board meetings “shall be made at least 7 days prior to the scheduled date and posted and maintained” like the original schedule. Even if the association posts this “schedule” it still must give “all members” direct notice of every board meeting at least 7 days prior. This individual notice must also be posted publicly and on any “website and included in any newsletter”. Additionally, the association must provide each notice “personally” to every owner “by mail, hand-delivery, or electronic means”. Lastly, this “notice” must include certain details concerning the board meeting’s time, etc. and agenda details that note particular discussion, action, and reoccurring items. The association must even post a notice of “cancellation at the meeting site”, at a location within the association and on the website if a meeting noted on the overall annual meeting has been canceled.

The Radburn Regulations do allow a board meeting to deal with “matters of such urgency and importance that delay for the purpose of providing 7 days advance notice would” likely result in “substantial harm” if that board “meeting is limited to discussion of, and acting with respect to” the urgent and important matter. In that case, notice must be “provided as soon as possible following the calling of the meeting”. That notice must also be posted publicly, posted on any association “website” (and included in any newsletter), and provided “personally” to every owner “by mail, hand-delivery, or electronic means”. The board must make certain records vis-a-vis this meeting and respect other controls.

Important Information About the New Radburn Regulations & Elections For Associations Consisting of Less than 50 Units

Ansell Grimm June 1, 2020

The Radburn Regulations expressly address “board elections” of associations with fewer than 50 units. The Radburn Regulations govern the use of proxies and absentee ballots by these small associations. If the association utilizes proxies, it must contain certain disclosures. An owner can revoke such a proxy prior to the casting of a vote. If the association utilizes proxies, it “must also make absentee ballots available”. Associations consisting of less than 50 units may permit electronic voting so long as the association can “verify the eligibility of the voters” and “count the ballots in a non-fraudulent and verifiable way”. DCA considers the following to be the “non-fraudulent and verifiable way” to count ballots:

any physical location for ballots must be “secured”;
ballot “tallying” must “occur publicly, with the ballots “open to inspection” for not less than 90 days from the election’s date;
ballots must be “cast in an anonymous manner”; and,
if the bylaws allow, and the particular member agrees, a ballot can be cast “electronically if “it is administered by a neutral 3^rd party and anonymity is maintained”.

Because of the Radburn Regulations, associations of less than 50 units must provide a notice of election that includes certain information and be provided within a tight 15-day window. Every owner in “good standing” can nominate himself or another owner in “good standing” to be a candidate for election and “good standing” is the only “criterion” that can be employed concerning a nominee’s eligibility. Owners of these associations must have the chance to review each candidate’s “qualifications”. An association of less than 50 units is not required to allow for “write-in candidates”. Lastly, any owner that the association considers to be not in “good standing” must be notified of that within a specific time frame prior to the election.

Brief Discussion Re: Radburn Regulations, Elections & Associations Consisting of 50+ Units

Ansell Grimm May 29, 2020

The Radburn Regulations expressly address “board elections” of associations with 50+ units. The Radburn Regulations govern the use of proxies and absentee ballots by these associations. If the association utilizes proxies, it must contain certain disclosures. An owner can revoke such a proxy prior to the casting of a vote. If the association utilizes proxies, it “must also make absentee ballots available”. Associations consisting of more than 50 units may permit electronic voting so long as the association can “verify the eligibility of the voters” and “count the ballots in a non-fraudulent and verifiable way”. DCA considers the following to be the “non-fraudulent and verifiable way” to count ballots: (1) any physical location for ballots must be “secured”; (2) ballot “tallying” must “occur publicly, with the ballots “open to inspection” for not less than 90 days from the election’s date; (3) ballots must be “cast in an anonymous manner”; and, (4) if the bylaws allow, and the particular member agrees, a ballot can be cast “electronically if “it is administered by a neutral 3^rd party and anonymity is maintained”.

Because of the Radburn Regulations, associations of 50+ units must employ both a notice soliciting nominations and a notice of the election itself. The notice soliciting nominations must be provided within a tight 30-day window. Every owner in “good standing” can nominate himself or another owner in “good standing” to be a candidate for election. Thereafter, owners have at least 14 days, counted from the notice’s mailing, to submit a nomination. “Good standing” is the only “criterion” that can be employed concerning a nominee’s eligibility. The association is prohibited from mailing “ballots or proxies” until at least 1 day has passed since the end of the “nomination period”. After the nomination period expires, each owner is entitled to another election notice, sent by “personal delivery, by mail, or electronically”. Notice by electronic means can be sent only when the owner has agreed to this in writing or when the relevant governing documents permit such notices. This notice must “contain” a ballot. Also, if the bylaws permit, the notice must also include “an absentee ballot”. If the particular bylaws provide for a “proxy ballot”, an “absentee ballot” has to be there too. Candidates must be listed alphabetically and the “ballot” must “include space for write-in candidates for as many seats as are up for election.” Persons elected as “write-ins” also have to be in “good standing”. Lastly, any owner that the association considers to be not in “good standing” must be notified of that within a specific time frame prior to the election.

David Byrne speaks with AssociationHelpNow

Ansell Grimm March 11, 2020

David Byrne, partner in the Ansell, Grimm & Aaron’s Community Association Practice Group spoke with Raymond Dickey from AssociationHelpNow in this informational video: Coronavirus Information For Boards & Managers: Environmental, Risk Management and Legal Perspectives.