Hopewell Citizens Group Wins NJ Supreme Court Victory

Yesterday, the NJ Supreme Court ruled in favor of a Hopewell Valley citizens group which is challenging land use approvals of a massive 800,000 square foot corporate office park expansion by the Berwind Development Group on rural and environmentally sensitive lands (for the Syllabus pending publication of the decision, hit this link). The case was well argued by Katherine V. Dresdner, Esq.

The citizen group’s lawsuit had been thrown out of court by Mercer County Superior Court Judge Feinberg because it was filed 6 days late.

It was filed late because the group’s lawyer relied in good faith on incorrect information provided by the Planning Board clerk. The group appealed the Mercer County Superior Court dismissal to the Supreme Court.

We wrote about this case following oral arguments held on October 26, 2010 – for details, see: NJ Supreme Court Hears Challenge to Massive Berwind Development in Hopewell Township. I summarized the issue:

So the argument boiled down to whether an innocent mistake by plaintiff HV Citizens, based on local government error and resulting in only 6 days, should result in the entire case being thrown out of court.

Was that a “manifest injustice”? …

My prediction is that the Supreme Court will reverse the Appellate Division and find in favor of the Plaintiff HV Citizens, particulalry on the “public interests” at play, as distinguished from garden variety private interests.

As we predicted, the Court’s decision, by a 6-1 vote, sends the case back to the Mercer County Superior Court for hearing on the merits.

The Supreme Court found the citizens group reasonably relied on the Planning Board clerk and that the Hopewell clerk was negligent.

As we expected, the Court ruled on the manifest injustice issue:

2. The methodology employed when this Court interprets one of its rules mirrors the manner in which statutes are construed. In accordance with that interpretative scheme, the analysis in this case begins with the plain language of Rule 4:69-6(c), which language suggests that a court has discretion to enlarge a Rule 4:69-6(a) or (b) timeframe when it perceives a clear potential for injustice. …  In Cohen v. Thoft, supra, the trial court dismissed the case, strictly applying both the deadlines imposed by Rule 4:69-6(b)(3) and the three categories of exceptions enunciated in Brunetti. The Appellate Division reversed, concluding that the plaintiff had not slumbered on his rights, “but instead reasonably relied on his communications with [the borough official] . . . .” Ibid. The panel also found no prejudice in the three-day delay, and directed that the case be remanded to the trial court because “it would be a miscarriage of justice to deprive plaintiff of a hearing on the merits of his challenge . . ..” Ibid. (Pp. 12-21)

3. Cohen v. Thoft is the paradigm for this case. (emphases supplied)

I didn’t get involved in the details during the Planning Board’s review of this development.

But, late in the game, I was asked to testify to the Planning Board about DEP Category One (C1) regulations.

I attempted to testify about the impact of DEP proposed Category One stream upgrades and the effect of new 300 buffers on the project.

I thought it was important that the Planning Board should know that the developer (Berwind) had submitted written comments to DEP opposing those proposed C1 rules. The Berwind comments focused on the negative impact those new C1 rules – if adopted – would have on the project.

Berwind lawyers wrote DEP to oppose the proposed new C1 rules. Berwind’s lawyers claimed that the DEP C1 designation rules would have a “devastating affect” (sic) on their ability to develop the property.

My written testimony sought to put the Berwind C1 comments to DEP on the Planning Board’s record – here’s what I tried to say:

On August 20, 2007, Pepper Hamilton, LLP, attorneys for the applicant BPG, submitted comments on the DEP May 21, 2007 proposed Category One amendments (see Exhibit 2). BPG counsel stated that the impact of the proposed regulation to designate portions of the Stony Brook as a C1 water:

“If adopted, the [C1] rule would have a devastating affect on BPG’s ability to redevelop its property because of the imposition of a 300 foot special water resource protection area (and riparian zone if the proposed amendments to the Flood Hazard Control Act rules are enacted) (collectively, “buffers”) adjacent to the Stony Brook and its tributaries. Such buffers will prevent BPG from implementing the 1999 [Hopewell] Township approved plan, possibly including BPG’s ability to discharge from its wastewater treatment plant.

But the developer opposed allowing me to testify on the grounds that no new issues could be introduced during what was supposed to be summary arguments.

I found it extremely odd that the Planning Board attorney agreed with the developer (Berwind) and advised the Planning Board to block my testimony.

Based on this guidance from Counsel, there followed an extended debate about whether I could testify or not (not whether I was qualified as an expert witness, but whether I could even testify at the final public hearing on the project). I’ve never experienced that before and could not understand why the Board would not want to know about such important information about the project.

The Planning Board agreed with the developer and blocked my testimony.

The Board then rushed approval of the project just days before new DEP C1 stream rules legally took effect.

I don’t know what the issues are in the case that will be heard in Mercer Superior Court. But I hope that this issue of the application of the new C1 rules to the project is part of it.

(Note: a quick Google reveals – as expected – that the typically shallow and vapid media ignores the issues and reports the case only as a platform for petty personal controversies and political intrigue on the Court).