2006-02-16 / Front Page
SERA will take boro to court over new law
Council approves ordinance to add two of its members to agency
BY MICHAEL ACKER
The Sayreville Economic Redevelopment Agency is expected to challenge legislation that enables the Borough Council to add two of its members to the agency.
SERA Attorney Christopher Hanlon, of Freehold, told the Suburban the agency will challenge the constitutionality of the statute, which was initially presented by state Assemblyman John Wisniewski, who is also Sayreville’s Democratic Party chairman.
“If it is found to be unconstitutional, the statute will be void,” Hanlon said “We want a declaration as to whether the statute and the ordinance is legal.
“This is a win-win situation for us,” Hanlon added. “Once we have a declaration, we will have peace of mind.”
Of the six SERA members present at the agency’s Feb. 9 meeting, only Jacqueline Berg and Michael D’Addio voted against the decision to take legal action against the borough. SERA member Edward Falon was absent from the workshop.
SERA Executive Director Randy Corman supports the lawsuit, and said the issue is whether the state statute may be considered special legislation that affects only Sayreville and no other towns in New Jersey.
“The basis [of the lawsuit] is that this particular appointment procedure only applies to one town, and there is a section of the state Constitution that prohibits legislation aimed at one town,” Corman said.
Wisniewski disputes that contention as “factually incorrect.” The assemblyman provided a document, which he said was prepared by the state Office of Legislative Services, that lists more than 20 other municipalities that can now have nine-member redevelopment agencies including two council members based on the new legislation.
But Corman said SERA will seek “a declaratory judgment asking the court to give a definitive opinion on this particular question of law.” The borough, he said, will be listed as a defendant “because the courts work in an adversarial system.”
The Borough Council’s new Democratic majority on Monday adopted an ordinance that, based on the new legislation, makes SERA a nine-member agency that includes two council members. The two members, however, have not yet been selected.
In the past, SERA’s seven members included Republican Mayor Kennedy O’Brien and six of his appointees.
The possible changes to SERA come at a time when the agency is considering proposals for the redevelopment of the 400-plus-acre former National Lead site, which fronts on the Raritan River.
Corman said the legal issue is not about having council members serve on SERA.
“There is nothing wrong with a councilman serving on SERA,” he said. “As a matter of fact, when [Democratic councilmen] Rory Zach and Dennis Grobelny came to the SERA meeting [last week], they made a positive contribution to the process. But if councilmen are going to serve as members, we need to make sure their votes are valid and not subject to a legal challenge.”
Wisniewski said the anticipated legal action is “ill-advised,” and described it as “unwarranted, frivolous litigation.”
The assemblyman said he believes SERA is “terrified of the prospect of somebody not in their club looking over their shoulder.”
“They filed a lawsuit because they are afraid of a lawsuit. It borders on the frivolous,” Wisniewski said. “I am not even sure they are going to get in the courthouse door with this, but if they do, I am confident [the judge] will call this what it is, valid and constitutional.”
Wisniewski has said that O’Brien previously supported the legislation, but that he believes O’Brien is now against it because his party is no longer in power. As of Jan. 1, the Democrats hold a 4-2 majority on the Borough Council.
O’Brien acknowledged that matter during Monday’s council meeting, saying that two years ago there was discussion about adding two borough residents to the agency, but that he did not discuss adding council members.
But Wisniewski said he finds it “more perplexing” that “they are going through such extraordinary lengths to prevent two elected council members from joining SERA.
“The only question is, what are they hiding? What are they afraid of? They are going to the taxpayer for money to fund a cover-up,” he said.
SERA Chairwoman Christine Spezzi said the agency is simply seeking clarification from a judge that “the law stands constitutional muster.”
“We have invested so much time and money into this process, nobody wants to see a developer or National Lead bring a lawsuit,” Spezzi told the Suburban. “This is the most prime piece of property in Middlesex County.”
Spezzi disputed Wisniewski’s depiction of the legal action.
“This is not some frivolous lawsuit or a tit-for-tat thing. We are seriously looking for clarification,” she said.
Spezzi added that it does not make sense to add members to SERA at present, given the fact that the agency is already working on the selection of a builder’s proposal for National Lead.
D’Addio said he objected for a number of reasons.
“I do not think it is up to SERA whether a law is constitutional or not. If it is, then why are we the constitutional police?” he asked.
D’Addio expressed concerns that the borough will not be able to meet the April deadline for choosing a developer. Middlesex County has granted funding for the National Lead project with the stipulation that a builder be selected by a certain date, or the county will take over the project.
“Nothing happens in court in a week. If we do not have a developer by the deadline, the county will take the site back,” D’Addio said.
The taxpayers, he added, will have to pay the legal fees of both the governing body and SERA.
“The borough is paying for two lawsuits against each other,” D’Addio said, “when we could have all just sat around and talked about it.”
Discussion on the ordinance to add members to SERA dominated Monday’s council meeting, and the council ultimately approved the measure in a 4-1 vote.
Resident Barbara Kilcomons voiced concerns with the ordinance during the public portion of the meeting.
“The ordinance seems to be totally unconstitutional since it is just for Sayreville,” Kilcomons said. “I have never seen a bill in Trenton aimed at one community. It puts Sayreville at risk.
“I am still a Democrat, but I will point out what is wrong, even in my own party, and if there are going to be appointments, they should be bipartisan,” she said.
Borough Attorney Brian Hak, who was appointed by the council last week, said he believes the statute is constitutional and that it will be upheld in court.
“The criterion does not fit [only] one municipality,” Hak said. “I think it would stand.”
O’Brien made several recommendations regarding the ordinance, despite his opposition, and the ordinance was approved with his recommendations included. Among those was the stipulation that the two council members be a Democrat and a Republican. He also recommended that the council members serve one-year terms on SERA, and that they not be allowed to appoint designees for meetings when they are absent.
O’Brien told the public during the meeting, “The process of rewarding the single largest redevelopment project in the history of the borough absolutely must be lawsuit proof.”
He reiterated his belief that the SERA ordinance could tie up the matter in litigation and lead to the county taking over the project.
“This is the engine that will bring us much-needed tax relief,” O’Brien said of the National Lead redevelopment. “I would like some property tax relief and I do not know one person in town who does not want it. This is not an ‘us against them’ scenario. It is a SERA issue.”
In response to D’Addio’s assertion that the agency has “a cloak of secrecy” surrounding it, O’Brien asked him to elaborate.
“You are one of the people [on SERA]. I would like to know which of these people are involved in a secret society? These are all upstanding citizens of our community. They deeply resent [the] accusation,” O’Brien said.
D’Addio responded that he also resents the assertion.
“That is why I do not think SERA should pick up the legal bill for [this litigation],” he said. “It is the taxpayers that get stuck with the bill.”
O’Brien said he wants the judicial branch to clarify the matter, as he pointed out that SERA’s attorney and the borough attorney disagree on the matter.
Councilman Rory Zach said he and Councilman Dennis Grobelny, both Democrats, recommended that SERA ask the county to extend the April deadline to choose a developer.
Grobelny also asked that Corman’s draft letter to the county requesting an extension be more explicit. O’Brien said he would forward that concern to Corman.
Democratic Council President Thomas Pollando noted that the ordinance does not name the appointees to SERA, and added that only Grobelny has been mentioned for one of the spots.
Councilman Stanley Drwal, who announced yesterday that he was changing his status from Republican to Democrat, supported the ordinance, saying he “would like more clarity on SERA.
“As a member of the council, I am getting irritated. I think we should be briefed [by SERA],” Drwal said.
Pollando then made a motion to adopt the ordinance, which Zach seconded and the council approved. Republican Councilman John Melillo cast the dissenting vote. Democratic Councilman Daniel Buchanan was absent from the meeting.
Pollando told the Suburban the council wants to ensure that whoever is chosen has the time to commit to SERA. He said the council will decide by next week which members will be appointed to the agency, and that Grobelny is a likely appointee.
Pollando mentioned a desire to investigate SERA, and requested that he be provided with the agency’s budgetary and financial information.
“I want to know what they are afraid of,” Pollando said.
He added that the council is considering asking Corman to present monthly reports updating officials on its projects.
“I have a tremendous amount of respect for the mayor,” Pollando said, “but he should never have allowed this [lawsuit] to happen.”
With regard to Drwal, Pollando said, “I truly appreciate his backing us. I give him my respect for going against his own party on this.”