- Environmental Law
- Property Development
- Municipal and Government Entity Representation
- Mold Claims Defense For Property Owners
October 26, 2009
by The Preserve Graydon Coalition
I’m what they call an objector attorney. We represent groups all over New Jersey who are fighting to protect their communities. When I go to meetings and meet people who have the same interests as my clients, I don’t often see this many people. Usually people are home watching TV. I applaud all of you for being interested in your community and for coming here and for participating, and for making sure that these important petitions are signed, and for contributing in every way, including financially, to this important cause.
I’ve been an attorney since 1986. First I represented the Department of Environmental Protection as Deputy Attorney General. I’ve been in private practice since 1990. Our firm, Lieberman and Blecher, in Princeton, started in 2000. Much of my practice is devoted to “green causes.” Many of my clients are environmental groups or environmental activists. I’ve done work for the Sierra Club and local environmental groups. I’m general counsel to the Passaic River Coalition. We do litigation and land use work. We appear before planning boards and municipal bodies on a variety of issues.
Some of our cases have been famous. One of our recent successes was when we represented the Raleigh Avenue Beach Organization in Lower Township, New Jersey. They lived in an area that didn’t have its own beach. There was no beach access except through a private beach, which for years had been free. Then the owner of the beach decided that he had a captive audience and could charge a lot. It got to the point where he was charging about $800 a year to use the beach in contrast to about $30 or $40 for a normal beach tag from a municipality. When the fee was $200 a year, nobody thought about hiring a lawyer. When it was $400 a year, nobody thought about it. When it reached $800, people started getting upset. They put their resources together and they hired the best lawyer they could find. Anyway, they hired me.
The first day that I met with that group, I said to them, “We’re going to go to the Supreme Court.” I never say that because it’s very hard to get to the New Jersey Supreme Court. But I saw this as a case that would because it dealt with an extension of the Public Trust Doctrine. Our beaches are for the purpose of everybody to enjoy. They’re a natural resource. And the question was: could someone charge so much that it was effectively precluding a segment of the community from using it? Sure enough, we brought the case to litigation. The lower court moved against us, but the appellate court reversed that decision and ordered an injunction in one day. I’ve never seen that in my life. In fact, I saw the judge who did it at a function I attended later; he was retired at that point. I said, “Judge King, I’ve never seen an order in one day. Why did you do it?” He said, “Why wait?” He was so excited.
The owner of the beach club then sought reversal by the New Jersey Supreme Court. The Supreme Court doesn’t have to take cases. They decide which ones they’re going to take and they did take this one.
We went to the Supreme Court and we won. The Raleigh Avenue Beach Association case was on the front page of the Star-Ledger. I’ll never forget it and it’s framed in my office. It stands for the proposition that the Public Trust Doctrine applies not only to public beaches, as it has since the 1970s, but also to privately owned beaches in New Jersey. Important cases like that keep me going. They keep the practice exciting, and it’s the kind of work that we like to do. We like to do work that counts.
When people who do land use, who get approvals for projects, gets malls built, get housing developments built, driving their kids down the turnpike, they say, “I got the permits for that and I got the permits for that.” When I drive my daughter and son down the turnpike, I say, “That was going to be something, but I stopped that; that was going to be something and I stopped that. And that beautiful park over there was going to be something, but we stopped that.” You make more money when you build things than when you stop things, but I think it’s a nicer life to do it this way. So we’re very happy.
Now, let me tell you why what you’re doing is so important. I grew up in New Milford and I know that Bergen County people have a fierce sense of self-determination, so I don’t think I really have to explain this, but things matter. It’s easy to say, “What the heck am I doing? So what? If they pave it, if they take this three-acre swimming site—” I mean, think of it: it’s almost three acres—can you imagine?—“of a natural spring-fed pool, and if I turn that into three concrete pools, all right, so it’s not the same, but that’s progress. We move on.”
But things do matter. You are right. You know things matter and that’s why you’re here. And it’s those little things, those flavors, those tastes, those smells, those aromas, that make life interesting and that form a community in their aggregate. Graydon Pool is an historic resource. This pool, as you know, is 80 years old in a 100-year-old park. It has served this area well for many years. It is well known. It should be on—and we need to get it on—the New Jersey list of historic places. It should be on the federal list of historic places, because it warrants that kind of protection. And we’re going to talk about doing that. And you should know that when sites are on the New Jersey Register or if they are eligible for inclusion on the Federal Register, they are entitled to certain protections and safeguards.
When permits are required, such as wetlands permits, a mitigation plan is required. One of the first things they ask is, “Is this necessary? Do we really have to embark upon this craziness?” We can’t ask that question enough in this case. So this is an historic resource and this really does matter.
I’d like to talk to you about some of the environmental issues that I find interesting about this project.
Number one is the flooding issue. There has been concreting and an increase in impervious surface in that area already. As an environmental lawyer, I know that the aggregate effect of paving, with more paving, more paving, over time enhances flooding.
Now, we already know that there is a water problem in the vicinity of the pool. Those problems have a sneaky way of becoming exacerbated when you decrease the amount of surface through which water can percolate into the ground. You see, nature has a storm water management system in place. We don’t have to do anything to it. When we have undisturbed soils, water percolates into the soil and recharges the ground water. Ultimately, we drink that groundwater. As a matter of fact, 20 years ago I represented Ridgewood in a lawsuit against three oil companies on Route 17 that were polluting your drinking water. Water that goes into the aquifer is water that Ridgewood and other local municipalities use for drinking. That water gets there by percolating through the ground. It’s cleansed as it goes through the various strata of the earth and it becomes clean drinking water.
That’s also how to prevent flooding. When we do that suburban thing, when we pave and pave and pave, we get flooding. Bergen County in general has a large flooding problem because when Bergen County was built out as a place for people that work in New York to go and live 50 years ago, there was no understanding of these issues. Uncontrolled development increased the flooding problems that we have in many communities. There’s a flooding problem by this pool. You don’t need to exacerbate it by paving. So you should be concerned about the flooding issues.
Let me tell you something from my experience: flooding issues will always be pooh-poohed by the government. If the government is in favor of concreting this, or whatever the government is in favor of, when they’re faced with legitimate flooding potential, they always pooh-pooh it. Then what happens, always—100% of the time—is that the development goes into place and five years later, we find that after a significant rainfall, there’s much more flooding than there was five years before the development. And guess what? There’s nothing in the world anybody can do about it. You can’t sue anybody because the government is immune from suit.
There’s a law called the Tort Claims Act which precludes you, really, for all intents and purposes—although I deny it and I try to sue the government over it—but it effectively precludes you from suing the local government for flooding you out by engaging in poor planning. So it’s the kind of thing where you’ll be told, “Don’t worry about it, don’t worry about it, don’t worry about it.” They will do it, it will flood, and then they will say, “You know, there’s nothing we can do, but we agree with you, this is terrible. It happens. When it rains, it floods.” Well, it doesn’t happen. It happens when you engage in poor planning. This is an example of poor planning. Don’t let them pooh-pooh you when you say it. Don’t let them make false assurances. Don’t let them tell you that they’re going to make the drainage problem better after the development than it was before the development, which is another thing they always say. Always.
I’ve never been before a Planning Board or Council meeting where they didn’t say—always—that the flooding that exists will be better, that there will be less of it and there will be more control after development than before development, and “I have a bridge to sell you” if you haven’t already bought it once or twice. It’s a load of nonsense. I’m here to tell you that. Don’t forget that. When you are there before the Council, don’t forget that!
I also want to talk to you about the historic preservation aspects of this. We already talked about the fact that if it’s eligible for inclusion on the state or national register, this special mitigation has to happen. But historic preservation is, in and of itself, an environmental kind of concept that, in this country, we don’t give enough deference to. For anyone who has been fortunate enough to travel through Europe—if you’ve been in Italy, France or London, where everything is a thousand years old—of course our country is younger, but we just don’t do a very good job of respecting some of our treasures. I don’t know why that is, but somewhere it got into the mindset of planners that you should clean the slate and start over again, and that invariably that will yield a better result than preservation. Well, preservation is important and it is, in and of itself, an important goal. And I think you know that. This is a wonderful site. There are many, many memories of children who grew up here that are associated with this.
I’ve heard that people from all over the country have sent you emails which concurred with that in their hearts and in their minds. They, too, understood how important this was. This is an important resource. Keep that in mind and don’t let the Council pooh-pooh that. Fight for it. You have to fight because it’s so much easier to bulldoze it over than to fight and stand for something that is important, and this is worth fighting for because it means something and it’s important.
I also want to talk to you about another environmental issue, and that is the health issues that have been bandied about concerning this natural resource, which is spring fed. I have heard that people complain that this pond isn’t as crystal clear as it would be if it were a concrete pool with a filter. And that’s true. The pond isn’t as clear as it would be if it were a pool with a filter—and it’s not supposed to be. Ponds are natural. They’re organic. They have a live ecosystem associated with them. There’s nothing wrong with it. That’s what swimming areas are when they are natural.
I will tell you something else. Oceans aren’t pristine in terms of clarity, either. Go figure! So maybe what we should do is attach a filter to the ocean. Take the salt out. Let’s clean that! Get rid of those darned fish! Maybe everybody from Ridgewood can be bused over there and swim there as well. Of course, it isn’t as clear as it would be if it were a concrete pool with a filter. Are we to be surprised by that conclusion? However—and this is what you need to keep in mind, as a kid who sold pool chemicals before I went to law school—it is clean. That’s a clean pool. The test results—time and time and time and time again—show that the bacterial levels are certainly acceptable. As a matter of fact, they are acceptable not only for natural water bodies, but for concrete pool bodies. It is clean. Don’t believe this rubbish that it isn’t clean. Clarity is one component of water quality and bacterial levels are another. That’s a sanitizing issue. Two completely different things. Murkiness is natural. It does not mean that the water isn’t clean. It is clean. It exceeds state standards.
I don’t want anybody from the Council—and I know they wouldn’t do this—nobody from the Council would ever say this— so I hope in advance that they’ll accept my apology for even suggesting it—that this water is dirty or that it’s unhealthy. It isn’t. It is FINE. Murkiness does not equate to the issue of sanitation. It is fine. And you wouldn’t want your pond to look like a filtered swimming pool. They’re different things. They’re different animals. I think we need to talk about that. And YOU, I hope, will talk about it when you go to a Council meeting. And you need to shout those people down the way they shout you down, and you need to make sure that they are listening to facts and that only facts are part of this colloquy and no emotions that are unsupported by facts. There’s been a lot of that.
There’s another environmentally related issue that I think we need to talk about, and it’s a sensitive issue, but we’re all friends, and it concerns management of the pool. It’s important that people not allow the pool to be mismanaged—to allow for some indicia of unkemptness to creep in and then blame that on inherent features of the pool, because that’s not true. So, for example, if we look at reports at this pool from 2007 and we see that it wasn’t chlorinated enough or chemically treated within the guidelines suggested by the DEP, then we shouldn’t wonder why maybe some bacterial levels exceeded what was acceptable in 2007. Don’t allow them to kill this pool by neglecting it and then come to you and say, “It’s dead; what are we to do?” What they are to do is manage the pool.
Now, I’m sure most of you have seen a letter from the DEP where the department stated quite clearly that this pool can be run successfully through proper maintenance. So that is what is necessary and my understanding is that there are plenty of examples of a lack of maintenance in the way that we would all like to see associated with this pool. My understanding is, for example, even in the simple thing like pool passes being checked, that they aren’t uniformly checked, and that when people need daily passes, often there aren’t people there to greet them and people aren’t paying attention. But then they complain there isn’t enough revenue coming in. Well, maybe if you do your job seriously and ensure that everybody who comes in has either a pass or pays for a pass or a guest pass, then you won’t have that kind of problem.
I’d like to talk to you about another related issue, and we just touched on it for a second, and that concerns the financial ability of the pool to continue. My understanding is that for about the last two years, revenues of the pool have gone down. And my understanding is that for about the last two years, revenues in just about anything that charges anything for anything in this country have gone down. We have been in a recession.
Now, I guess Ridgewood hasn’t been in a recession, but what I suggest you do is get copies of The New York Times and bring it to Council members at the next meeting so they can find out that we have been in a recession. Many people who live in Ridgewood have been affected by the recession.
Because there’s a train in the middle of Ridgewood, and do you still have the green taxicabs in Ridgewood, or no? Do they still have those? Those little green cabs pick everybody up from the train station and take them from where they work in New York and take them home. Many people in Ridgewood work in New York City and have been impacted more so than many other places in New Jersey by the recession. There are a lot of Wall Street jobs in this community. When people lose their jobs or when their income has gone down, or when one person in a two-income family loses a job, what might be deemed as discretionary spending gets cut. So, obviously, the amount of money that the pool and just about everything else in Ridgewood and in New Jersey and the United States, and, by the way, in the whole world, has seen has gone down. Let’s not play the blame game and say, “Revenue is down; we have to kill this pool,” because the fact of the matter is that revenue is down because we are in a global recession. Revenue might also be down because the Pool Project (and does that not sound like some kind of 1970s band, by the way?)—I mean, let’s face it, you’ve been hearing what people have been saying. You’ve been hearing what has been leaked to the media, and there have been all kinds of misrepresentations about this pool. After a while, when people start hearing the same old, same old, same old, some people believe it. So you’ve got a recession, and then you’ve got a bunch of people who are motivated to bring about a certain result and may be saying certain things to bring about what might be their desired result.
Certain other stories are floating around that I want to touch upon before we part ways tonight.
Number one is the story that this RFP, this Request for Proposals, is “just to see what’s out there,” even though it may contain an illustration of three pools that are concrete inside a three-acre area. If one were inclined to look at things in a skeptical way, one might wonder whether really the purpose of the RFP is to just see what’s out there, or is it really to have people who are applying for the RFP come back with something that is being strongly suggested in the RFP. I think we need to keep this in a level playing area—or level pool—and it could be that what we’re seeing is fair play. I suggest that it might very well not be fair play.
Then there are suggestions that “My kids won’t go to the pool any more and what are we doing with this pool, and the only thing we can do now is concrete it over because that’s the only way that this thing can be worked out.” There is little empirical data that is out there in this very sparse record that has been created to suggest that the demographics of who’s using the pool and who’s not using the pool are in any way related to whether it now has a concrete bottom or whether it has that beautiful sandy bottom or whether it has the sand. Many, many children, many kids, many teenagers go to lakes. They go to oceans. They go to the beach. They go to all kinds of things. I don’t know. Maybe if you clean the bathroom, they’ll come. Just an idea.
We don’t want to start drawing what might be unreasonable conclusions and floating them about without empirical evidence. And I can suggest to you that there’s little likelihood that any such data will ever be produced if you ask for it.
Determine the facts
My understanding is that there was an exchange recently where an individual who is closely associated with this organization complained that half of what was contained in the Ridgewood Pool Project’s Final Report was fiction or exaggeration. There was a response by an elected official that that is a matter of opinion. And let me suggest to you that while right now I don’t have my finger on the exact percentage that is fiction or exaggeration, whether something is fiction or exaggeration, contrasted with fact, is never a matter of opinion. It either is or it isn’t. And I think rather than saying “that’s a matter of opinion,” and thinking that that is a valid way of addressing a legitimate concern that there might not be sufficient factual information in a public report that is being used, at least in part, as a basis for going forward with an RFP, a more informed response would have been, “Well, why don’t we go over what you believe isn’t truthful or honest, or what you believe is an exaggeration, and why don’t we spend some time trying to compare notes and harmonizing these different points of view so that we can all determine together the facts, and then decide where we should go, if anywhere at all?”
You can fight City Hall
Let me close with this suggestion. We all grew up hearing that you can’t fight City Hall. I want to tell you that when a community is united and when people have the spirit, as demonstrated by people sitting here today and others that couldn’t come today, and when people understand that something means something and something is worth fighting for, and some things really matter, that you can fight City Hall. I make a career of fighting City Hall and, while I certainly am not always successful, we have a good track record. The fact of the matter is that I am successful when my clients care, and when my clients are motivated, and when my clients work hard and have a monomania that this is something that means something. I tend not to do that well when a client says, “Look, I’m a rich person. Here’s the money. Do whatever it takes and give me a call or send me an email in a year or two and let me know how it works out.” I’ll take the case, but I tend not to be that successful. This is the environment—this is ripe for success because people matter. You’re here; you’re excited; you understand.
In conclusion, you can fight City Hall, I assure you. Keep your eye on the ball. Remember what matters. Don’t be intimidated. Don’t be shouted down by anybody. Look everyone straight in the eye: eye-to-eye contact. Ensure them that you matter, that you are what this is all about—governing is about people—and that your voices need to be heard and that historic resources that are important and mean something to people cannot be allowed to simply vanish because it’s expedient to do so rather than looking harder for a decision that makes more sense. Thank you very much.
© 2009 Stuart J. Lieberman
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