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Judge Agrees to Add Conflict of Interest to Chatham Township Market Garden Lawsuit

Christy Potter Kass

Thursday, September 20, 2012 • 2:43pm

CHATHAM TOWNSHIP, NJ – A judge has ruled in favor of those who are suing Chatham Township, agreeing that the mayor and one committee member have a conflict of interest and should not have been involved in any discussions about the inclusion of Rolling Knolls in the market garden ordinance.

New Jersey Supreme Court Judge Thomas Weisenbeck ruled on Monday that Mayor Nicole Hagner and Committee member Bailey Brower Jr. both have interests connected to the former landfill that should have kept them out of any discussions on the matter.

The lawsuit was filed by a group of Chatham Township residents after the township committee approved the long-debated market garden ordinance in April. The lawsuit, in part, focuses on Rolling Knolls, the former landfill that has been declared a Superfund site. The landfill, in the Green Village section of the township, operated as a municipal garbage dump from the early 1930s through December 1968. It is a few miles away from the headquarters of Novartis, one of those the EPA has deemed responsible for the site contamination.

According to the EPA, the Superfund Enforcement program gets Superfund sites cleaned up by finding the companies or people responsible for contamination at a site, and negotiating with them to do the cleanup themselves, or to pay to have it done by another party (the EPA, the state, etc.)

With Novartis listed as one of the responsible parties, the drug company would be expected to shoulder part of the cost to remediate the site, which is zoned for residential use.

The questions began to arise when the Chatham Township Committee was considering a redevelopment plan. Early on, the discussion centered around changing the zoning for the whole area, including the Rolling Knolls site, to allow for market gardens. Later, the site was taken out of the proposal.

In August, the defendants requested to add to the lawsuit Hagner, who works for Novartis, and Brower, whose family owns the nearby Noe Pond Club. The lawsuit contends that both officials would stand to benefit from the ordinance as it was initially being considered, as it could have lowered the clean-up costs for Novartis, and could provide tax breaks for Noe Pond.

According to the plaintiffs, prior to the lawsuit being filed Brower was listed as a member of the eight-person board at Noe Pond, but the club’s website now shows a seven-member board, including Brower’s daughter and son-in-law, and lists his wife, Taz, as the aquatics director. Brower has contended that he is no longer on the board and only receives payments from the corporation as part of a buy-out agreement with his daughter and son-in-law.

In the judge’s ruling this week, he agreed with the plaintiffs that at the time of the ordinance, Hagner and Brower were subject to conflict of interest, or appearances of a conflict of interest, and should have disqualified themselves from voting on the ordinance. While the judge’s opinion acknowledged that although the township committee later removed Rolling Knolls from the ordinance, he said he must consider the matter from when the ordinance was enacted.

He cited New Jersey statute 40:55D-69, which states that “no member of (the board) shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.”  

Chatham Township Attorney Carl Woodward has maintained that Novartis will not benefit, because the ordinance was specifically designed to call for conditional use.

“Novartis does not and will not benefit from the zoning amendment that the township has adopted,” Woodward told The Alternative Press. “The initial ordinance applies to all the residential zones in town, including Rolling Knolls, but we recognized just prior to the time we adopted ordinance, that we didn’t want that. “

At the April 28 meeting where the ordinance was adopted, the committee included an amendment to delete Rolling Knolls.

“It’s a Superfund site,” Woodward said. “It’s inappropriate to be used for gardening purposes.”

At the time, there was an amendment to the amendment because of a typo, but all have now been adopted, Woodward said, and Rolling Knolls will never – at least under the current ordinance – be zoned as anything but residential.

“Just because there’s a conditional use, the underlying zoning has only been residential,” he said. “The township has never intended to change that.  In my view, there is no conflict. Novartis would never benefit from this, and the EPA and the DEP have confirmed that.”

He added that the mayor has always recused herself from discussions about Rolling Knolls.

“With respect to any discussions regarding remediation of the Superfund site, Mayor Hagner has always recused herself,” Woodward said. “She has been very concerned that her employment and her public position do not conflict.”

In their lawsuit, the residents argue that Hagner and Brower should not have been present at all when the ordinance was discussed. Their complaint also alleges that the whole proceeding was not done in good faith, because Rolling Knolls was not initially disclosed in the proposed zoning changes.

The township calls the lawsuit’s claims of conflict of interest “frivolous,” and the judge wrote that while that is “perhaps ultimately so,” he could not delve into the merits of the amendment at this time.

Templin and the other residents have long argued that market garden usage would increase traffic and possibly damage their property values. They also have claimed that illegal dumping has been done on the site and that the township has not done enough to stop it.

The pre-trial conference on the lawsuit is scheduled for October.

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