Across the Watershed - Winter 2001 - Legal Action Against GSWA

In a motion branded "baseless and frivolous" by their attorney, GSWA and a Madison resident in January became the targets of legal action initiated by the owner of 300 Madison Avenue, Madison, to recover damages allegedly being incurred as the Watershed Association presses its
environmental and planning concerns in the New Jersey courts.

GSWA and the Madison resident, Board member Judith A. Kroll, are represented by Morristown attorney Daniel E. Somers. A Harding Township resident, Thomas Ruegg, is also a defendant. Both are neighbors of the 300 Madison Avenue property.

At issue is a June, 2000, ruling by the Madison Zoning Board approving construction of five homes on a proposed three-plus acre subdivision of property located at 300 Madison Avenue, Madison. The ecologically sensitive property, today totaling slightly more than 5.5 acres, is the site of a single structure historically known as the Wilder House after its original builder, Enos Wilder. Owned by 300 Madison Avenue Associates, the structure now houses medical and professional offices

After the Zoning Board's 5-2 approval of the site plan (with 15 variances), GSWA and the two neighbors of 360 Madison Ave. appealed the Board's decision to the Morris County Superior Court, claiming that the approval is arbitrary and capricious, and has too many variances, none of which are authorized under local zoning ordinances.

In January, following Superior Court Judge Reginald Stanton's November decision upholding the Zoning Board, the Watershed Association and Ms. Kroll appealed again, to the State Appellate Division of the Superior Court. Now, the owner claims, these filings are delaying the sale of the subdivision to its developer, Masucci Associates of Morristown, because "[t]he purchase cannot be completed until the Appeal is resolved."

On behalf of 300 Madison Avenue Associates, one of its partners, attorney Lawrence Litwin, has taken action against the defendants to recover $4,750 per month for the duration of the appeals process. The $4,750 figure represents additional refinancing costs and lost interest on the proceeds of the sale, according to court documents.

Commenting on the motion, Mr. Somers said: "Any monetary losses suffered are the direct consequence of the seller's decision and not of my clients' appeals. It's obvious that the sole purpose of this filing is to harass my clients and needlessly to cause them to incur the unwarranted expense of defending against a baseless and frivolous motion. This attempt to intimidate them from pursuing legitimate appeals is a tactic roundly repudiated by the courts; it is tantamount to a SLAPP (Strategic Lawsuits Against Public Participation) suit." He demanded that Mr. Litwin, the attorney for 300 Madison Avenue Associates, withdraw the motion or face court-imposed sanctions.

Documents filed with the motion, Mr. Somers said, "show clearly that the property seller has had the right for some time to compel the buyer to close on the sale because the Zoning Board's approval has been received. Not doing so until the appeals process is exhausted is the seller's own choice."

Other documents filed with the motion reveal that Masucci has agreed to pay $500,000 for the three-plus acres on which construction would occur if court appeals are exhausted. "We're astounded that the agreed-on selling price is so low," Madison's Ms. Kroll said. "By comparison, that was precisely the same price paid by a developer for a similar Madison property of only 1.2 acres that the Madison Planning Board ruled could only contain one new house. That house sold in October, 2000, for over $1.6 million. A $500,000 price for five new home sites in Madison is unexpected."

If the motion had not been withdrawn by the property owner or dismissed, a hearing was scheduled for Friday, January 26. This represents the first time in GSWA's 20-year history that it has been the subject of any legal action.

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