THIRD QUARTER 2009 BLSJ ACTION UPDATE

A status report of the Builders League’s Action Committee activities is listed below:

STATE WATER SUPPLY MASTER PLAN DELAYED AGAIN: The public release of the Draft 2009 NJ Water Supply Plan and subsequent public meetings that were scheduled for the first week of September have been postponed due to the early receipt of updated water transfer model results from the United States Geological Survey for the years 2000 thru 2007. This data was not expected until the end of December and will now allow the NJ Department of Environmental Protection to consider water use data thru 2007. The current draft relies on water use data from 1990 thru 1999. DEP believes use of the most current data will add value to the report's conclusions and trends. The Department will review and evaluate the new data over the next few months and determine how best to use it in the current draft Plan.

CCMUA, WINSLOW APPROVE AGREEMENT FOR SEWER: The Camden County Municipal Utilities Authority (CCMUA) and Winslow Township have both formally approved the agreement regarding the transfer of sewage flow and the purchase of potable water from the Delaware River. However, the CCMUA is still waiting for the Pinelands Commission to approve it. The Commission expects to address it in mid-fall. Waterford Township may likely end up in sewer ban since it appears they do not want to purchase water from NJ-American Water Co. The Camden County Municipal Utilities Authority has selected an engineer for the pipeline project and the design is underway.

WOOLWICH REVISES TREE ORDINANCE WITH BLSJ INPUT: Representatives from the Builders League and Woolwich Township met several times over the summer to review Woolwich’s Tree Ordinance and to offer our comments on how the ordinance can be improved. Woolwich has sent the League a revised draft ordinance which we are now reviewing.

BLSJ MONITORING UPPER MANTUA CREEK WATERSHED REGIONAL STORMWATER MANAGEMENT PLAN: The League has been monitoring the Upper Mantua Watershed Regional Stormwater Management Plan Stakeholders Group over the past four years. The Stakeholders Group held a meeting on September 17 to review the findings of their study. Craig McGee of the Camden County Soil Conservation District provided an overview of their findings that reached the major conclusion that the Upper Mantua Creek Watershed is in surprising good condition. Recent data that was collected suggests that the watershed is not as bad as the original study. A copy of the PowerPoint presentation is available from the League office.
 

THIRD QUARTER 2009 - LEGAL ACTION

NJ SUPREME COURT RULES THAT MUNICIPALITIES CAN’T CHARGE RECREATION FEES
The New Jersey Supreme Court handed down its decision on June 25 in the consolidated appeals of the Builders League of South Jersey vs. Egg Harbor Township and New Jersey Shore Builders Association vs. Jackson Township, which raised the issue of a municipality’s authority to adopt ordinances that require developers to provide open space or recreation set asides within a community, or payment in lieu of, as a condition of development approval. Members who paid the recreation fees under protest should contact the municipality demanding reimbursement of those payments.

BLSJ FILES AMICUS BRIEF TO NJ SUPREME COURT IN MUNICIPAL TAKINGS CASE 

In response to another set of chilling judicial decisions affecting private property rights in New Jersey, the BLSJ‘s Board of Directors has filed a motion with the NJ Supreme Court appear as Amicus Curiae and to file a brief and participate in Oral Argument in Klumpp v. Avalon.

The facts of the case are that Mr. and Mrs. Klumpp have owned oceanfront land in Avalon for the past 50 years. They sued the Borough of Avalon to gain access to their land (the street which previously served the land was vacated – case law holds that they have a "perpetual and indefeasible" right of private access. In 2005, for the first time ever, Avalon claimed that it owned the land, having physically seized it in 1962 after the infamous northeast storm, and thus the Klumpps no longer have a need/right to access. Avalon claimed it was in "possession" since then by virtue of having reconstructed the beach/dune in the area.

It was undisputed, though, that:
-there is no document evidencing Avalon's taking of the land
-Avalon never instituted Eminent Domain
-the 60 year period for adverse possession of undeveloped land has not expired
-Avalon's records listed the Klumpps as owners, and sent them tax bills, which they paid, for the past 47 years
-Avalon's official map lists the property as "privately owned" as contrasted with the surrounding publicly owned beach
-In 1997, Avalon's municipal attorney denied that Avalon had taken the land
-the county records show that the Klumpps own fee simple title
-in 2002, Avalon sends the Klumpps a "Dear Property Owner" letter advising them of a revaluation of "your property"
-a 2002 State Aid Agreement with DEP for beach nourishment calls out the Klumpp land as one for which an easement is needed in order to enter onto the land to do the work

On these facts, the trial court and Appellate Division found that Avalon is in "possession" of the land, and entitled to vested title based on "principles of inverse condemnation." But inverse condemnation is a Landowner's remedy; it cannot be used by the government to bypass the protections of the constitution and eminent domain.
Thus, Avalon has stolen this land, without invoking Eminent Domain, and without paying any compensation. The League is waiting to hear if the New Jersey Supreme Court will accept the case.