roxbury complaint
DESCRIPTION
The former owner of Fenimore Landfill filed a federal lawsuit against the NJDEP, Roxbury Township and state Sen. Anthony Bucco over the state takeover of the site.TRANSCRIPT
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MATTHEW M. FREDERICKS, ESQ., LLC
111 Northfield Avenue
Suite #304
West Orange, New Jersey 07052
(973) 731-4545
Attorneys for Plaintiffs, Strategic
Environmental Partners, LLC, Marilyn Bernardi
and Richar Bernardi
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:
STRATEGIC ENVIRONMENTAL PARTNERS, :
LLC, MARILYN BERNARDI AND :
RICHARD BERNARDI, :
:
:
Plaintiffs, :
: Docket No.
vs. :
:
SENATOR ANTHONY BUCCO, :
NEW JERSEY DEPARTMENT OF :
ENVIRONMENTAL PROTECTION, :
COMMISSIONER ROBERT MARTIN, :
TOWNSHIP OF ROXBURY NJ, MAYOR OF :
ROXBURY TOWNSHIP FRED HALL, :
DANIEL MARCHESE, IRENE KROPP, :
ATLANTIC RESPONSE, INC. and : COMPLAINT
CHRISTOPHER RATHS, :
:
Defendants. :
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Plaintiffs, Strategic Environmental Partners, LLC, Marilyn Bernardi and Richard Bernardi
(hereinafter "Plaintiffs"), by their attorney, Matthew M. Fredericks, Esq., by way of Complaint against
Defendants, say:
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I. INTRODUCTION
This action arises under the First, Fifth and Fourteenth Amendments to the United States
Constitution; under federal law, specifically 42 U.S.C. §§1983, 1985 and 1988; under the New
Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq.; the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 et seq. and under New Jersey common law for conversion, tortious interference
and civil conspiracy.
The individual Defendants, acting in the scope of their employment and under color of
state law and/or while acting as willful participants in joint action with the state or its agents,
with malicious and discriminatory intent, conspired to deprive and did deprive Plaintiffs of their
rights secured to Plaintiffs by the First, Fifth and Fourteenth Amendments and by 42 U.S.C.
§1983 including: (a) the right not to be deprived of property without due process of law; (b) the
right to just compensation for taking of property; (c) the right to exercise free speech without fear
of governmental retaliation; (d) the right to equal protection of the laws. Action is also brought
against the New Jersey Department of Environmental Protection and the Township of Roxbury
for their participation in and promotion and furtherance of the malicious and discriminatory
deprivation of Plaintiffs’ rights.
With malice and with the intent to deprive Plaintiffs of their Constitutional rights,
Defendants conspired to interfere and did interfere with Plaintiffs’ lawful and beneficial
remediation of a former sanitary landfill owned by Plaintiff Strategic Environmental Partners,
LLC located in Roxbury Township, New Jersey. Unhappy with Plaintiff’s landfill remediation
project because of the truck traffic associated therewith, Defendants initially sought to enjoin
Plaintiff’s activities through appropriate legal channels. However, when Plaintiff successfully
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defended and defeated the injunction efforts in Court while simultaneously making public certain
undisputed facts about Defendants’ negligence and conflicts of interest, Defendants Bucco,
Martin, Kropp, NJDEP and Roxbury became incensed and thereafter, working in concert, and as
retribution for Plaintiffs’ exercise of their rights of free speech and access to the Courts, set about
harming Plaintiffs in any way possible. Ignoring all proper legal procedures, Defendants
unlawfully and recklessly interfered with Plaintiff’s remediation project, deprived Plaintiffs of
their Constitutional rights, expressly and brazenly usurped judicial powers and ultimately, on
June 26, 2013, forcibly seized control of Plaintiff’s property and business without authority and
without legal or factual justification. Defendants Martin, NJDEP, Roxbury Township and
Atlantic Response, Inc. remain in possession and control of Plaintiff’s property and continue to
deprive Plaintiffs of their rights under the United States Constitution in violation of State and
Federal law.
II. JURISDICTION AND VENUE
1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§1331, 1343 and
1367 and venue is properly set in the United States District Court for the District of New Jersey
pursuant to 28 U.S.C. §1391.
III. THE PARTIES
2. Plaintiff Strategic Environmental Partners, LLC (“SEP”) is and at all times
relevant hereto has been a Limited Liability Company incorporated and operating under the laws
of the State of New Jersey.
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3. Plaintiff Marilyn Bernardi is an individual resident of the State of New Jersey and
at all times relevant hereto is and has been the sole member of Plaintiff SEP.
4. Plaintiff Richard Bernardi is an individual resident of the State of New Jersey and
at all times relevant hereto is and has been the husband of Plaintiff Marilyn Bernardi.
5. Defendant Senator Anthony Bucco (“Bucco”) is a resident of the State of New
Jersey and at all times relevant hereto has acted in his capacity as an elected member of the New
Jersey State Senate representing New Jersey’s 25th
Legislative District which includes the
Township of Roxbury.
6. Defendant State of New Jersey Department of Environmental Protection
(“NJDEP”) is and at all times relevant hereto has been a government agency existing as part of
the government of the State of New Jersey.
7. Defendant Robert Martin is and all times relevant hereto has acted in his capacity
as the Commissioner of Defendant NJDEP.
8. Defendant Township of Roxbury (“Roxbury” and/or “Roxbury Township”) is a
municipal corporation organized under the laws of the State of New Jersey and is a township
located in Morris County, New Jersey.
9. Defendant Fred Hall is an individual resident of New Jersey and at all times
relevant hereto has acted in his capacity as the Mayor of Defendant Township of Roxbury.
10. Defendant Daniel Marchese, Esq. is an attorney at law of the State of New Jersey
and at all times relevant hereto has acted jointly and in concert with Defendants Senator Bucco,
Township of Roxbury, Commissioner Martin and the NJDEP.
11. Defendant Irene Kropp is an individual resident of New Jersey and at all times
relevant hereto has acted in her capacity as the Deputy Commissioner of Defendant NJDEP.
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12. Defendant Atlantic Response, Inc. is, upon information and belief, a New Jersey
corporation with a primary business address of 12D Connerty Court, East Brunswick, New
Jersey 08816 and at all times relevant hereto has acted jointly and in concert with Defendants
Martin, the NJDEP and the Township of Roxbury.
13. Defendant Christopher Raths is an individual resident of New Jersey and at all
times relevant hereto has acted in his capacity as the Manager of Defendant Township of
Roxbury.
IV. FACTS
A. History – the Property
14. In 2010, SEP acquired title to certain real property consisting of approximately
103 acres located in Roxbury Township, Morris County, New Jersey and designated as Lot 1 in
Block 7404 on the Roxbury Township Tax Map (hereinafter “SEP’s Property” and/or the
“Property” and/or the “Site”).
15. For nearly 3 decades prior to SEP’s acquisition of the Property, from
approximately 1951 to 1977, approximately 60 acres of the Property was used as a sanitary
landfill and was known as the “Fenimore Landfill” (the “Fenimore Landfill” or “Landfill”) (so
named by the long-time owner of the Property, Frank Fenimore).
16. The Fenimore Landfill was used primarily by Defendant Roxbury Township and
other local municipalities as a dump for household waste. In addition, the Fenimore Landfill
accepted barrels of chemical waste, junk equipment and vehicles, furniture and other bulky and
hazardous waste.
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17. While the former Fenimore Landfill was in operation, waste was burned at the
Landfill and storm water runoff from the Landfill leached into the soil and waterways under and
around the Landfill.
18. In October 1979, citing environmental concerns, including the migration of
contaminated leachate offsite, the NJDEP entered an Order enjoining the former owner, Frank
Fenimore, Inc., from accepting any additional waste at the Landfill and ordering Frank
Fenimore, Inc. to “place adequate and complete final cover over the entire landfill.”
19. Although Frank Fenimore, Inc. ceased operating and accepting waste, the Landfill
was never properly “capped” or sealed off, nor were any environmental controls put in place to
control, mitigate or monitor the problems generally associated with active and abandoned
landfills such as the migration of landfill gases and contaminated leachate.
20. In December 1983, Defendant NJDEP filed a Complaint against Frank Fenimore,
Inc., the former owner of the landfill, seeking an order compelling Fenimore to take actions to
remediate the landfill. Paragraph 12 of the aforementioned 1983 NJDEP Verified Complaint
states in relevant part as follows:
Investigation and inspection of the Fenimore landfill by
representatives of the DEP, including the Division of Water
Resources, have revealed that leachate generated by the landfill,
but neither collected nor treated by defendants, enters into and
substantially impairs and degrades surrounding surface waters.
Such degradation is continuous and immediate…
21. In a 2005 report concerning the Property prepared at the request of Defendant
NJDEP, a private engineering firm opined that, “it is clear that the landfill needed to be properly
capped.”
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22. In January 2012, Defendant NJDEP wrote a letter to Defendant Senator Bucco
which stated that “The proper closure of this landfill is of significant benefit to the area and
surrounding waters. Currently, untreated leachate flows into a tributary of Ledgewood Brook
which eventually empties into the Raritan River”.
B. History - Roxbury Approves Homes Built Next to the Landfill
23. When the Fenimore Landfill was in operation, and when it stopped accepting
hazardous waste, the area surrounding the Landfill was rural, undeveloped woodlands and open
space.
24. Sometime in the 1980s, not long after the Fenimore Landfill ceased operating,
Defendant Township of Roxbury, with full knowledge of the location and history of the Landfill
and the environmental hazards posed by the uncapped Landfill, re-zoned the surrounding
woodlands for residential development.
25. Shortly after re-zoning the surrounding woodlands for residential development,
Defendant Roxbury Township accepted an application for the construction of a residential
development immediately adjacent to the Landfill. The proposed residential development was to
be called “Poets Peak”.
26. Predictably, there was fierce opposition to the construction of homes right next to
the uncapped, hazardous landfill.
27. A Memo dated May 19, 1987 from the Roxbury Township Environmental
Commission to the Roxbury Township Planning Board in opposition to the construction of the
Poets Peak development stated as follows:
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It should be noted that one of the primary concerns with the Fenimore
Landfill was that odor permeated the air as far away as Mine Hill.
Odors occurred only during the summer months. Subjecting existing
residential developments to similar or more noxious odors for a period of
6 to 7 months out of the year would be criminal. (emphasis added)
28. A July 29, 1987 letter sent on behalf of Defendant Roxbury Township
acknowledged the strong odors emanating from the Landfill, as follows:
It suffices to say that odor levels associated with the proposed
wastewater treatment technology [as part of the Poets Peak
development] will be undetectable compared to odors emanating from
the Fenimore Landfill
29. In October 1987, an attorney representing a group of Roxbury residents in
opposition to the proposed Poets Peak development wrote to the Roxbury Township Planning
Board and requested that the Township suspend any consideration of the developer’s application
to build Poets Peak “until definitive information is submitted concerning the possible health
effects of the interrelationship of the project and Fennimore’s landfill.”
30. In October 1988, a local environmental consultant wrote to the attorney for the
concerned Roxbury citizens group and said:
As a resident of Morris County who attempts to keep track of pollution
problems in our backyard, and doing almost all of my consulting in New
Jersey, the question is not IF the [Fenimore] Dump is a pollution source,
but how severe the problem really is.
31. In the 1990s, Defendant Roxbury Township, with full knowledge of the location
and history of the Landfill and the environmental hazards posed thereby, approved the
construction of the 315 home “Poets Peak” development.
32. In 1998, Defendant Township of Roxbury submitted to Defendant NJDEP a
request for funding under the Hazardous Discharge Site Remediation Fund (“HDSRF”) in order
to remediate the Landfill. However, upon information and belief, Roxbury Township, fearing it
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would be assuming liability for remediating the Site, ultimately declined to accept funding under
the HDSRF.
33. Roxbury Township and its officials were aware that homes within the Poets Peak
residential development were marketed for sale as featuring “open fields, mature woods and
rolling hills” without any mention of the proximity of the development to the uncapped former
Landfill which continued to leach hazardous waste into the surrounding soil and waterways.
34. Neither the Township of Roxbury nor its officials took any action to notify
purchasers and/or prospective purchasers of the homes in the Poets Peak residential development
of the location and proximity of the environmentally hazardous uncapped Landfill. In some
instances, Roxbury told prospective purchasers that the Landfill was “closed” but did not reveal
that while technically “closed”, meaning no longer in operation, the Landfill was not properly
“capped” and made environmentally safe.
C. Bucco’s Ties to the Poets Peak Developer
35. The aforementioned Poets Peak residential development was built by Bukiet
Building and Management Company (“Bukiet”) of Clifton, New Jersey.
36. Upon information and belief, Bukiet and/or its owner(s), principal(s),
shareholder(s), agent(s), affiliate(s) and/or subsidiaries have made political contributions to
Defendant Senator Bucco either through monetary donations directly to Senator Bucco’s
campaigns and/or through donations made to the campaign fund of Defendant Senator Bucco’s
son, New Jersey Assemblyman Anthony M. Bucco.
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37. Upon information and belief, Bukiet and/or its affiliates continue to do business in
Roxbury and continue presently to build homes and other improvements and otherwise develop
property in Roxbury Township.
D. Plaintiff SEP Acquires the Property for Remediation and Redevelopment
38. In 2010, Plaintiff SEP acquired title to the Property. At no time prior to 2010 did
SEP hold any ownership interest in the Property, nor in any entity which held title to the
Property.
39. Plaintiffs did not pollute the Property, did not deposit municipal garbage on or at
the Property and never operated the Property as a sanitary landfill. Plaintiffs did not construct
homes or allow homes to be constructed immediately adjacent to the landfill.
40. To the contrary, Plaintiff SEP acquired the Property for the purpose and with the
intent of properly remediating the Landfill and developing the Property with photovoltaic solar
panels.
41. SEP’s plan to remediate the Landfill and develop the Site Property as a clean,
renewable energy park is consistent with and directly implements and furthers New Jersey
Governor Chris Cristie’s commitment to developing renewable sources of energy in New Jersey
that protect the environment and promote economic development. Converting landfills into solar
farms, like turning lemons into lemonade, is a practice which, upon information and belief, is
endorsed by the Sierra Club.
42. Defendant NJDEP has publicly recognized Governor Christie’s policy of
supporting alternative energy projects like SEP’s.
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43. Plaintiffs have never received nor applied for nor requested any public funding.
SEP’s plan to remediate and redevelop the Site has at all times been and is a privately funded
environmental remediation project. There is no taxpayer money going into this project.
E. Bucco and Roxbury Oppose SEP’s Remediation Project
44. Defendants Bucco and Roxbury Township have at all times relevant hereto
opposed and resisted SEP’s plans to remediate the contaminated Landfill.
45. Upon information and belief, Bucco and the Township have always feared
liability for not acquiring and remediating the Site and for allowing so many homes to be
constructed next to the Landfill by Bucco’s political supporter, Bukiet.
46. Upon information and belief, Bucco and Roxbury have believed – correctly – that
the work necessary to remediate the Landfill, which by necessity must include several years of
heavy truck traffic along the residential streets which provide access to the Landfill, would be
unpopular with local residents.
47. In addition, upon information and belief, Bucco and Roxbury have believed –
correctly – that the heavy truck traffic and remediation work would cause local residents to
question the wisdom of the Township’s decision to allow residential construction next to the
Landfill and to wonder why the Township had always either concealed or downplayed the
existence and impact of the Landfill.
48. Defendant Senator Bucco’s son, Assemblyman Anthony M. Bucco, Esq., is the
Township Attorney for Defendant Roxbury Township.
49. Upon information and belief, Defendant Senator Bucco has at all times relevant
hereto been motivated in his opposition to SEP’s attempts to remediate the Landfill by his
interest in shielding his son’s client, Roxbury Township, from liability.
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50. In 2007, while SEP was investigating the prospect of remediating the Landfill,
Defendant Senator Bucco’s son, Anthony M. Bucco, Esq., responded to an inquiry from SEP
about the Landfill project and stated that “the Township is not interested in pursuing this matter
further”, alleging that “the site…poses no immediate environmental concern.”
51. Bucco and the Township of Roxbury have at all times attempted to deny, conceal
and/or downplay the level of contamination of the Site in order to serve their own interest in
evading liability for their negligent handling of the Landfill and the houses built around it.
52. While SEP was in the process of obtaining permits from Defendant NJDEP to
proceed with the remediation of the Landfill, Plaintiff Richard Bernardi, an authorized agent of
SEP, met Defendant Senator Bucco at a meeting at Bucco’s office in Denville, New Jersey.
53. During this meeting, Senator Bucco told Mr. Bernardi that all permit applications
related to the Landfill would have to be submitted through Senator Bucco’s office. Senator
Bucco told Mr. Bernardi, “When I was the Mayor of Boonton Township, I wouldn’t let you walk
down the street without a permit.” Bucco’s message to Mr. Bernardi was that he, Bucco, was in
charge and would be calling all the shots related to the Fenimore Landfill.
54. SEP ignored Senator’s Bucco’s absurd demand that all permit applications go
through his office and declined to involve Bucco in its remediation project, which, upon
information and belief, frustrated and infuriated Senator Bucco.
55. In addition, from the outset, Defendant Roxbury Township demanded to have
access to SEP’s private property and insisted that SEP apply to the Township for permission to
undertake the remediation of the Landfill, notwithstanding that permission from the Township
was not required.
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56. SEP did not comply with Roxbury’s demands. SEP’s lawful exercise of its right
not to grant Roxbury Township unfettered access to its property and/or to involve the Township
in every decision related to the remediation frustrated and angered Defendant Roxbury
Township, Senator Bucco, Mayor Fred Hall and Christopher Raths.
F. SEP’s Closure Permit and Relationship with NJDEP
57. In October 2011, the NJDEP issued to SEP a Closure Plan permit, pursuant to
which SEP was permitted to bring in fill material as part of the process of capping the old
landfill. The Closure Plan allows SEP to accept non-hazardous, recyclable materials such as
construction and demolition screenings (“CDS”) and other NJDEP-approved materials to be
deposited atop the existing historical garbage and hazardous waste. The NJDEP-approved
capping materials are not hazardous and do not further pollute the Landfill. This is the proven,
accepted and approved method of capping landfills in New Jersey.
58. In consideration for accepting the NJDEP-approved fill material, SEP would be
paid a tipping fee by the party supplying the fill material.
59. Several months after the Closure Plan was issued, a disagreement developed
between SEP and the NJDEP regarding certain provisions of the Closure Plan, particularly the
requirement in the Closure Plan that SEP deposit 100% of its income into an escrow account
controlled by the NJDEP, a provision that is not required under any local, State or Federal
statute, rule or regulation and which, in fact, directly conflicts with the New Jersey Landfill
Closure Act.
60. Because SEP would not escrow 100% of its tipping fees with the NJDEP, and
because SEP dared to allege that the NJDEP’s 100% escrow requirement was ultra vires, on
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Friday, May 18, 2012, the NJDEP issued SEP an order commanding SEP to cease operations at
the Site.
61. In response, on Monday, May 21, 2012, SEP applied to the New Jersey Superior
Court, Morris County, Chancery Division, for injunctive relief against the NJDEP and received
an injunction by consent which permitted SEP to continue remediating the Landfill.
62. However, SEP’s lawful exercise of its right to seek relief in Court from the order
issued by the NJDEP incensed and frustrated Defendants Martin, the NJDEP, Bucco and
Roxbury Township.
63. Outside of Court, Commissioner Martin and the NJDEP escalated its efforts to
shut SEP down. In addition, Senator Bucco and his son’s client, the Township of Roxbury,
joined the NJDEP against SEP.
64. First, in July 2012, the NJDEP, working with the New Jersey Department of
Labor, conducted what they termed a “random inspection” of the trucks entering SEP’s Site
which was in reality a staged and premeditated arrangement to create the appearance that SEP
was accepting asbestos-containing-material (“ACM”).
65. The ACM allegedly discovered at SEP’s Site was found in a truck traveling to the
Site from a NJDEP-licensed Materials Recovery Facility (“MRF”) in South Plainfield, New
Jersey.
66. The South Plainfield MRF is controlled, licensed and inspected by the NJDEP.
67. The NJDEP admits that the South Plainfield MRF, which is the alleged source of
the ACM allegedly found at SEP’s Site, has a known history of disseminating asbestos
containing material to other landfills in New Jersey.
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68. Upon information and belief, the day before the July 2012 inspection, the NJDEP
notified the New Jersey Department of Labor (“DOL”) that agents from the DOL were requested
to assist in an inspection of Fenimore because Fenimore was receiving material from the South
Plainfield MRF. Although SEP had no history or violations suggesting that SEP had accepted
any ACM, the NJDEP and the DOL conducted the inspection knowing or suspecting they would
discover ACM arriving from South Plainfield which they could use to shut down SEP’s project.
69. The alleged “discovery” of ACM at SEP’s Property was merely an interception by
the NJDEP of materials which the NJDEP knew would be delivered from the NJDEP- licensed
MRF with a known history of ACM violations and was intended by the NJDEP to give the Court
a reason to shut down SEP’s remediation project. It was a set-up by the NJDEP, authorized and
conceived by Defendant Commissioner Martin, intended to kill SEP’s project, punish SEP for
seeking protection in Court and teach SEP a lesson about who was really in charge.
70. The NJDEP applied to the Court for an injunction against SEP on the basis of the
discovered ACM. The Court denied the NJDEP’s application.
71. SEP’s victory in Court again enraged the Defendants. In response Defendants
NJDEP, Bucco, Martin and Roxbury Township stepped up their efforts to deprive Plaintiffs of
their Constitutional rights and to interfere with SEP’s lawful activities.
G. Defendants Attempt to Prevent Trucks from Delivering Fill Material to the Site
72. SEP’s NJDEP-approved Closure Permit calls for SEP to import approximately
1,200,000 (1.2 Million) cubic yards of NJDEP-approved fill material in order to properly cap the
garbage and to build up the platform upon which SEP would install solar panels.
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73. Pursuant to the terms of the Closure Plan, the importation of sufficient amounts of
Fill Material to cap the Site would take approximately four (4) years.
74. The non-hazardous Fill Material required under the Closure Permit must be
delivered from the various sources of the Fill Material to the Property by large trucks (the
“Trucks”).
75. In order to access the Property, the Trucks carrying the Fill Material must travel
on the residential streets which the Township of Roxbury constructed and/or allowed to be
constructed around the Landfill.
76. Truck traffic is not a prohibited use on the roads around the Landfill.
77. Upon information and belief, shortly after the Trucks began delivering Fill
Material to the Site in or around December 2011, some local residents began complaining to the
Township of Roxbury about the Trucks.
78. However, nothing was done in response to the complaints from Roxbury
Township residents during the months of December 2011 through June 2012.
79. Then, in July 2012, frustrated and angered that SEP had successfully withstood
Defendants’ efforts to shut down the landfill remediation project in Court, Defendants again
attempted to circumvent the Court’s authority and violate Plaintiffs’ rights by stopping the flow
of trucks to the Site.
80. Working cooperatively, Defendants NJDEP, Township of Roxbury, Bucco and
Martin enlisted the services of the New Jersey State Police to pull over and detain all trucks
traveling to and from the Landfill.
81. Beginning on or about Wednesday, July 18, 2012 (i.e. about 8 months after the
Trucks began traveling to SEP’s Property, but less than a week after the Court denied Defendant
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NJDEP’s request for an injunction against SEP on the basis of the alleged ACM discovery), at
the request and insistence of Defendants, New Jersey State Police Troopers and NJDOT agents
began pulling over, stopping and detaining all Trucks traveling on Mooney Road to SEP’s
Property.
82. The New Jersey State Police Troopers and NJDOT agents did not pull over, stop
or detain any other vehicles – only Trucks headed to the Landfill. Although there were other
large trucks traveling on Route 206 to other destinations, such trucks were not pulled over; only
the Trucks that turned onto Mooney Road en route to the Fenimore Landfill were stopped.
83. The New Jersey State Police Troopers and NJDOT agents even pulled over,
stopped and detained trucks traveling to SEP’s Property which were not carrying Fill Material,
such as the truck that delivers fuel to SEP’s Property and the water supply truck which SEP
required to control dust at the Site.
84. The New Jersey State Police Troopers and NJDOT agents stated to the drivers of
the Trucks things such as “The Township of Roxbury doesn’t want the trucks here anymore,”
“People in Roxbury want the trucks off their roads, so we’re stopping all of the trucks”, and
“We’re checking all trucks going to the Fenimore site.” One State Trooper advised Plaintiff
Richard Bernardi that the truck stops were ordered through the Township of Roxbury at the
instruction of the State of New Jersey and that the stops would continue “for months”.
85. In some instances, New Jersey State Police Troopers and NJDOT agents issued
summonses for minor violations such as low tire pressure and/or discharged fire extinguisher.
86. In many other instances, the New Jersey State Police Troopers and NJDOT agents
merely stopped the Trucks and detained them without issuing any citation(s).
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87. The truck stops were intended to deter truck drivers from delivering materials to
SEP’s Property as a means of choking off SEP’s income stream.
88. There is no statute, regulation and/or other law which prohibited SEP from
operating its business by accepting Fill Material brought to the Property by the Trucks.
89. There is no Court Order nor any other authority granting Defendants the right or
the authority to effectively shut down SEP’s business as Defendants sought and attempted to do.
90. To the contrary, on July 19, 2012, following a hearing on the record before the
Court, the Court issued an Order granting SEP injunctive relief against Defendant NJDEP which
expressly prohibited the NJDEP from taking any action to prevent SEP from accepting Fill
Material at the Property.
91. Upon information provided by SEP’s prior counsel, who on behalf of SEP had
multiple meetings with Defendants Martin, Roxbury and the NJDEP, at or around this time –
July 2012 through and including November 2012 – Defendant Senator Bucco was actively and
aggressively seeking to assist his son’s client, Roxbury Township, and serve his own personal
agenda against SEP by making frequent contact via cell phone and other means with New Jersey
Governor Chris Christie.
92. Upon information and belief, Defendant Bucco implored the New Jersey
Governor to either take action himself against SEP or to instruct Defendant Martin to increase
his efforts to stop the trucks traveling to the Landfill.
H. Odor Complaints
93. In November 2012, residents living near the Landfill began complaining of a foul
odor in the air.
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94. Shortly after residents began complaining, the NJDEP notified Plaintiff SEP that
the NJDEP believed the odors were emanating from the CDS materials on the Site, specifically
the gypsum found in wallboard which constitutes a portion of CDS. SEP was at all times
permitted by the NJDEP to accept CDS at the Site.
95. Almost as soon as the odor complaints began in November 2012, Defendants
NJDEP and Roxbury Township applied to the New Jersey Superior Court for an injunction
against SEP. Defendants asked that SEP cease accepting CDS until SEP had covered all CDS
material on the Site with “daily cover”, i.e. cover soil.
96. The Court denied the injunction request, finding that SEP had covered the Site
with cover soil and had complied with the Court’s instructions related thereto.
97. However, in the context of the NJDEP’s request for an injunction, SEP filed with
the Court a pleading which brought to light an inconvenient truth about the NJDEP, a move that
incensed Commissioner Martin.
I. SEP Discloses that NJDEP Deputy Commissioner Irene Kropp’s Husband Owns a
Landfill in New Jersey Which Competes with SEP for Tipping Fees from CDS.
98. In response to the NJDEP’s and Roxbury Township’s November 2012 application
for an order enjoining SEP from accepting any more CDS, SEP submitted to the Court a
Certification of Plaintiff Richard Bernardi wherein Mr. Bernardi certified that, upon information
and belief, the Mullica Hill Landfill located in Harrison Township, New Jersey, is owned by
Brian Horne, the husband of Defendant NJDEP Deputy Commissioner Irene Kropp.
99. Mr. Bernardi’s certification accurately stated that the NJDEP’s second-in-
command is, via her marriage to Brian Horne, the owner of a landfill in South Jersey which, like
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SEP’s property, earns tipping fees from the acceptance of fill material such as CDS. In other
words, Defendant Irene Kropp directly competes with SEP for CDS revenue.
100. More to the point, SEP’s submission to the Court in November 2012, which was a
lawful exercise of SEP’s and Mr. Bernardi’s right of free speech under the First Amendment,
accurately and truthfully informed the Court that the NJDEP’s request for injunctive relief
against SEP, if granted, would result in an immediate and substantial financial benefit to
Defendant NJDEP Deputy Commissioner Irene Kropp by redirecting shipments of revenue-
generating CDS from SEP’s property to the Mullica Hill landfill owned by Kropp’s husband.
101. Mr. Bernardi’s Certification cited specific examples of third parties who delivered
CDS to both SEP and Mullica Hill, thereby demonstrating that if SEP were shut down, those
sources of CDS would deliver the CDS to Irene Kropp’s landfill in South Jersey.
102. Subsequently, in January 2013, SEP filed a complaint with the New Jersey State
Ethics Commission alleging that Defendants Martin and Kropp were in violation of the New
Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12, et seq., by virtue of the Deputy
Commissioner’s ownership interest in a landfill which competes with SEP, which is regulated by
the NJDEP.
103. SEP’s Ethics Complaint against Martin and Kropp correctly disclosed that on
November 29, 2012, Defendant Robert Martin visited SEP’s Site accompanied by Defendant
Deputy Commissioner Irene Kropp and other NJDEP officials. SEP’s Ethics Complaint also
correctly stated that within a few hours of Kropp’s visit to the Site on November 29, 2012, SEP
was served with a Notice of Violation alleging that Plaintiff had violated a condition of SEP’s
Closure Plan and that twenty hours later, the NJDEP applied to the New Jersey Superior Court,
21
Morris County, Chancery Division, for an Order to Show Cause seeking to restrain SEP from
accepting any more material, including C&D Screenings.
104. The Ethics Complaint filed by SEP was, again, a lawful exercise of Plaintiffs’
right to engage in free speech as guaranteed by the U.S. Constitution.
105. Upon information and belief, the Ethics Complaint filed by SEP incensed
Commissioner Martin and Defendant Irene Kropp and thereafter motivated and influenced all of
the NJDEP’s, Martin’s, Kropp’s and the remaining Defendants’ actions toward SEP.
J. Defendants Seek Relief From Bucco’s Own Judge
106. In late November and throughout December 2012, Defendants NJDEP and
Roxbury Township were jointly applying to the Superior Court, Chancery Division (Hon.
Deanne M. Wilson, J.S.C.) for injunctive relief against SEP. But Defendants were unsuccessful
in Court.
107. Therefore, realizing that Judge Wilson was not persuaded that the alleged odors
justified interrupting the beneficial remediation project, and understanding that Judge Wilson, by
handling the matter carefully and methodically, would not give Defendants the immediate
victory they desired, Defendants conspired again to evade due process by going to their own
judge, Judge Maenza.
108. Judge Philip J. Maenza, J.S.C. is an untenured Family Court Judge in Morris
County.
109. Upon information and belief, Defendant Senator Bucco has close personal and
political ties to Judge Maenza.
22
110. In fact, upon information and belief, Senator Bucco’s support and endorsement of
Judge Maenza was instrumental in Judge Maenza’s being appointed to the Superior Court in
2010, a fact Senator Bucco has bragged about.
111. Judge Maenza is not tenured. Under New Jersey law, in order to become tenured,
Judge Maenza must receive the approval of Senator Bucco.
112. Upon information and belief, at all times relevant hereto, both Judge Maenza and
Senator Bucco have known and understood that Bucco can and will directly influence Judge
Maenza’s future as a Superior Court Judge.
113. Accordingly, because Senator Bucco and his son’s client, Roxbury Township,
could not achieve victory with Judge Wilson, Defendants arranged to have Judge Maenza, who is
beholden to Senator Bucco, issue a restraining order against SEP without putting SEP or Judge
Wilson on notice of the underlying application.
114. Bucco and Roxbury did this by enlisting the services of Defendant Daniel
Marchese, Esq., who, on behalf of certain Roxbury residents, prepared a Verified Complaint and
application for an Order to Show Cause.
115. Defendants Bucco, Roxbury, NJDEP, Commissioner Martin, Marchese and Judge
Maenza conspired to have Marchese appear before Judge Maenza and obtain a restraining order
without complying with Rule 4:52-1 of the New Jersey Rules of Court which requires notice to
the party against whom restraints are sought.
116. On December 31, 2012, New Years Eve, at approximately 3:30 P.M., with full
knowledge of the name and contact information of SEP’s lawyer, with full knowledge that for
the previous 6 months all claims relating to the Landfill were being handled by Judge Wilson,
but without giving any notice to SEP’s lawyer or to Judge Wilson, Defendant Daniel Marchese
23
personally entered Judge Maenza’s chambers with a form of Order to Show Cause with
Temporary Restraints ordering that SEP “cease and desist” accepting all fill material at the
Landfill.
117. None of the claims made in Marchese’s Verified Complaint had anything at all to
do with family law and had no business in the world being before Judge Maenza, a Family Court
Judge. The only reason Marchese went to Maenza was because Maenza can be and is controlled
by Senator Bucco.
118. At no time did Defendant Daniel Marchese or Judge Maenza make any attempt to
put SEP and/or SEP’s lawyer on notice that Marchese had applied for restraints against SEP.
119. Without attempting to contact SEP or attempting to verify that Marchese had
noticed SEP of the application for restraints, Judge Maenza signed and entered the Order
enjoining SEP from continuing with its landfill remediation.
120. Upon information and belief, Marchese’s appearance before Judge Maenza on
New Years Eve 2012 was not on the record. It was a clandestine meeting between Marchese and
Maenza which had been arranged by and through Senator Bucco, Commissioner Martin and the
NJDEP.
121. At 6:25 P.M. on New Years Eve, after the Court had closed for the holiday break,
Marchese sent an email to SEP’s lawyers with an attached copy of Judge Maenza’s Order with
Temporary Restraints.
122. Marchese’s email was sent to two (2) lawyers for SEP and two (2) additional
email addresses of a known agent of SEP. Clearly Marchese was aware of how to contact SEP
and had the means and the opportunity to notify SEP in advance of his appearance in Judge
Maenza’s chambers. In addition, given the volume of pleadings filed by Marchese, including a
24
Verified Complaint and voluminous Certifications, the application clearly took at least several
days to prepare, during which time Marchese could have but did not notify SEP or SEP’s lawyer.
123. On January 1, 2013, SEP’s lawyer contacted the acting emergent judge for Morris
County to find out how an order granting restraints could have been granted by Maenza without
any notice to the party restrained and while all interested parties knew at all times that Judge
Wilson was handling all matters related to the Fenimore Landfill.
124. On January 2, 2013, SEP applied for and was granted by Judge Wilson an Order
dissolving the restraints imposed by Family Court Judge Maenza’s December 31, 2013 Order.
125. Prior to going on the record with SEP’s motion to dissolve restraints, Judge
Wilson talked in chambers with Marchese and SEP’s attorney, Matthew M. Fredericks, Esq.
Noting that the NJDEP should be a participant in any discussions and any proceedings related to
the Landfill, Judge Wilson placed a telephone call to the Attorney General’s office to speak with
NJDEP’s lawyers. During this telephone call, which was on speaker phone in Judge Wilson’s
chambers, the Deputy Attorneys General representing the NJDEP advised Judge Wilson that on
Friday, December 28, 2012, Defendant Dan Marchese had notified them of his intent to apply to
Family Court Judge Maenza for restraints.
126. Marchese informed the NJDEP of his intentions on Friday December 28, 2012,
but intentionally, maliciously and with intent to deprive SEP of its right to due process, and in
accordance with the conspiracy among all Defendants, purposely concealed his intentions from
SEP until after Judge Maenza had signed the Order and after the Court had closed for the
holiday.
127. It was immediately apparent that Senator Bucco had orchestrated Marchese’s
application to the untenured Judge Maenza. During a follow-up hearing on the record on
25
January 10, 2013, Judge Wilson explained why she set aside Judge Maenza’s restraints and
commented in relevant part as follows:
…there are a lot of countries in the world, in fact most countries in the
world where you don’t get an independent judge on the bench. You
get a judge who was appointed by somebody in government and that
government person calls him or her and says, look it, Anthony Bucco
is coming before you and this is what he wants. I want to make sure
he doesn’t get it, or they might say I want to make sure that he does
get it. And by the way, Judge Wilson, in case you don’t understand
this, your term is up in three months. And you are out of here unless
you do it my way. So it is my way or the highway. You know, we
don’t think about things like that in the United States. We don’t have
that kind of court system. Our system runs on evidence, intelligent
resolution of disputes and sometimes that takes time.
128. Upon information and belief, Marchese never intended to actually prosecute and
to date has not actively prosecuted an action for damages on behalf of those Roxbury residents
he purported to represent. Upon information and belief, at all times relevant hereto, Marchese
was merely a shill for Bucco, Martin, the NJDEP and Roxbury Township whose lone assignment
was to visit Judge Maenza on New Years Eve and get the pre-arranged Restraining Order.
K. Defendants Prevent SEP from Properly Addressing the Odor Complaints
129. Thereafter, the complaints from residents about the odor continued and SEP
continued to make good faith efforts to mitigate the alleged odors with the instruction and
guidance of SEP’s expert landfill engineer, Mr. Assadi.
130. Upon Mr. Assadi’s instruction, SEP applied to the NJDEP for permission to
undertake various steps to address the odor complaints.
26
131. Specifically, SEP diligently and in good faith pursued ways to limit the emission
of hydrogen sulfide gas (H2S) from the Site including application of odor control products (i.e.
deodorants) and re-contouring the Site to allow more area to be covered by soil.
132. Upon information from Mr. Assadi, the leading expert in this field, the standard
and accepted method of addressing and mitigating odor emissions from uncapped landfills
during the remediation process is by applying cover soil.
133. However, after Judge Wilson vacated Judge Maenza’s Restraining Order,
Defendants NJDEP, Bucco, Martin and Roxbury Township realized that the Court would not
enjoin SEP from remediating the Landfill unless SEP failed to mitigate the odors. Defendants
quickly recognized that the odors caused residents to complain and that the more people
complained, the more likely a Court would be to order SEP to cease its remediation project. Best
of all, Defendants immediately understood that they possessed the ability to restrict and foil any
efforts by SEP to mitigate the H2S emissions, thereby prolonging and exacerbating the problem,
thereby increasing Defendants’ political and legal leverage over SEP.
134. Accordingly, thereafter, Defendants arbitrarily, capriciously and maliciously
interfered with, blocked, frustrated and prevented SEP’s efforts to address the odor complaints.
135. Specifically, Defendants intentionally delayed answering SEP’s requests for
permission to take certain actions, intentionally and maliciously withheld permission for SEP to
undertake certain remedial action, and called upon the State Police to pull over and detain and
deter trucks carrying cover soil to the Site, while simultaneously encouraging residents to
register complaints about the odor. Roxbury Township even put up a large, lighted traffic sign
on the highway urging residents to call the NJDEP hotline to register complaints about “the
landfill odor”.
27
L. Bucco, Martin and the NJDEP Eliminate the Courts
136. As SEP continued with its remediation efforts and Defendants continued to
interfere therewith, Defendants continued to seek a Court order shutting SEP down.
137. However, because they were unsuccessful in Court using existing rules and laws,
Defendants conspired to confiscate SEP’s property another way, this time by changing the rules
and using extra-judicial measures.
138. First, Roxbury Township raised SEP’s taxes by more than two-thousand percent
(2,000%). In a non-revaluation year, the Roxbury Township Tax Assessor, working in concert
with Defendants, increased SEP’s tax assessment from $525,000 in 2012 to a new assessment in
2013 of $11,631,000.
139. Simultaneously, while Commissioner Martin and the NJDEP continued to
hamper, frustrate and block efforts by SEP to remediate the Landfill and to address the ongoing
odor complaints, Senator Bucco drafted and proposed a new law intended to get around the
Court system and deprive Plaintiffs of their rights.
140. On March 4, 2013, Senator Bucco, representing his son’s client, Roxbury
Township and District 25, submitted a proposed legislative bill the express purpose and intent of
which was to authorize the NJDEP to seize SEP’s private property and “assume responsibility
for the proper closure of the Fenimore Landfill in Roxbury Township, Morris County.”
141. Senator Bucco’s legislation (S-2617) (hereinafter the “Fenimore Bill”) had no
other provisions or purpose; it would be a new law giving the NJDEP the express authority to
seize SEP’s property without compensation or due process. Senator Bucco was taking the matter
away from the Court. Bucco was playing judge and issuing orders.
28
142. Subsequently, the Fenimore Bill was modified and amended by the Senate, but it
was still expressly targeted at “Legacy Landfills”, which are sanitary landfills, like Fenimore,
which ceased operating before January 1, 1982.
143. The new Fenimore Bill, as amended by the Senate on June 6, 2013, contained a
provision establishing a broad, State-wide standard for hydrogen sulfide (H2S) emissions.
144. The June 6, 2013 amended Fenimore Bill states in relevant part as follows: “There
is a maximum air quality standard for hydrogen sulfide of 30 parts per billion averaged over a
period of 30 minutes.” This standard was not limited to Legacy Landfills and would be
applicable to all parties and all properties.
145. However, on or about June 16, 2013, Commissioner Martin and the NJDEP made
proposed amendments to the Fenimore Bill. Among the changes proposed by the NJDEP was a
limitation of the hydrogen sulfide standard to apply only to Legacy Landfills.
146. The NJDEP took the Senate’s broad “maximum air quality standard for hydrogen
sulfide” language and changed it to read as follows:
4. a. There is established a maximum air quality standard for
Hydrogen sulfide levels emanating from a legacy landfill or a closed
sanitary landfill facility shall not (sic) exceed 30 parts per billion
averaged over a period of any 30 minutes to be measured at the
property line of a legacy landfill. (emphasis original)
147. In other words, Commissioner Martin and the NJDEP were not and are not
concerned about malodorous H2S emissions from other sites which might bother other New
Jersey residents. This Fenimore Bill was never aimed at addressing an alleged environmental
problem; it was never about the odors. Bucco’s new law has always had but one aim – to stop
the trucks traveling to SEP’s property by allowing the NJDEP to seize the Site and thereby
prevail over SEP. The odors provided the political means by which Defendants could finally
29
defeat SEP and Defendants unconscionably prolonged the odors long enough to change the law
and circumvent the Court.
148. In the meantime, while the Bucco Bill was pending, Defendants Roxbury
Township and the NJDEP filed an emergent application in the New Jersey Superior Court
seeking an order authorizing the NJDEP to assume control of the Landfill and to undertake
certain actions such as the application of an alternative cover material known as “Posi-Shell” and
the installation of stick flares intended to burn off the H2S.
149. The joint application filed by the NJDEP and Roxbury Township was made
returnable by the Court Friday, June 28, 2013.
150. On Wednesday, June 26, 2013, two days before Roxbury and the NJDEP were to
appear in Court to argue their request for emergent relief, New Jersey Governor Chris Christie
approved and signed the Fenimore Bill. The final Fenimore Bill reflects and includes the
changes made by the NJDEP to the hydrogen sulfide provision. The new law reads in relevant
part as follows:
C.13:1E-125.4
4. a. Hydrogen sulfide levels emanating from a legacy landfill
or closed sanitary landfill facility shall not exceed 30 parts per billion
averaged over a period of any 30 minutes to be measured at the
property line of a legacy landfill or closed sanitary landfill facility.
151. At nearly the exact time in the morning (9:45 A.M.) that Governor Christie
enacted the Fenimore Bill, the NJDEP, having prior knowledge of the exact time that Governor
Christie would sign the new Bucco legislation, served upon Plaintiffs an Emergency Order
authorizing the NJDEP to seize control of SEP’s Property.
152. The June 26, 2013 Emergency Order alleges that SEP violated the 30-minute
hydrogen sulfide standard established by the Fenimore Bill.
30
153. At the time the Emergency Order was signed by NJDEP Commissioner Bob
Martin, the Fenimore Bill had been in effect for only minutes, possibly only seconds. In fact, the
timing of the service of the Emergency Order makes clear that the Emergency Order was signed
by NJDEP Commissioner Martin before the new law was in effect. In any event, 30 minutes had
not elapsed between the time the Governor signed the new law and the time SEP was served with
the Emergency Order. Clearly the Governor’s office, Bob Martin, Senator Bucco, Roxbury
Township and the NJDEP had carefully coordinated the timing of the Governor’s signing of the
new law.
154. Between the time the new Fenimore Bill was enacted and the time the NJDEP
issued and served its Emergency Order, the NJDEP took no measurements of hydrogen sulfide at
or near SEP’s Property. The NJDEP made no effort to satisfy the new standard of 30 parts per
billion measured over 30 minutes.
155. Simultaneous with its service of the Emergency Order, the NJDEP seized control
of SEP’s Property by entering the Site with armed New Jersey State Troopers. The NJDEP
agents who entered the Site were accompanied by third party contractors including Defendant
Atlantic Response, Inc. They unloaded heavy equipment and machinery and immediately began
bulldozing and re-grading SEP’s Property.
156. On the same day, June 26, 2013, NJDEP Commissioner Bob Martin issued a press
release wherein Commissioner Martin stated, “The DEP has pursued every legal and
administrative remedy available to us to eliminate the environmental and odor problems caused
by the neglect of the property owner.”
31
157. On that morning, June 26, 2013, NJDEP Commissioner Bob Martin also told
news reporters that the NJDEP “has tried every legal remedy to close the landfill, but the courts
have not acted. With Gov. Christie signing the bill, DEP has the authority to do it.”
158. The June 26, 2013 Emergency Order was issued two (2) days before the New
Jersey Superior Court (Hon. Donald S. Coburn, J.S.C.) was scheduled to hear Roxbury’s and
NJDEP’s application for Court permission to seize the Site. Rather than risk another loss in
Court, the Defendants charged ahead in order to eliminate the possibility that the due process
which is guaranteed to Plaintiffs would again protect Plaintiffs from Defendants’ relentless,
malicious and unlawful attack.
159. In the weeks preceding enactment of the Fenimore Bill, despite Defendants’
interference, SEP had substantially mitigated the hydrogen sulfide levels on and off the Site by
applying a thick layer of cover soil as originally instructed by the NJDEP and as recommended
by SEP’s project engineer.
160. Hydrogen sulfide measurements taken both by the Township of Roxbury and SEP
confirm that prior to June 26, 2013, the last time the Township’s monitors measured hydrogen
sulfide at a level of 30 ppb for 30 minutes was on June 18, 2013 at approximately 7:13 A.M. to
7:43 A.M. There were no such elevated readings the remainder of June 18th
, nor were there any
such elevated readings on June 19, June 20th
, June 21st, June 22
nd, June 23
rd, June 24
th, or June
25th
– i.e more than a week of no high readings of hydrogen sulfide in Roxbury Township.
SEP’s hydrogen sulfide measurements taken on June 25, 2013 reinforce the fact that no elevated
levels of hydrogen sulfide were being emitted from SEP’s property.
32
161. The NJDEP has reported that it took no readings of H2S on June 24th
and June
25th
. In the days preceding their seizure of SEP’s property on the basis that SEP’s property was
emitting nuisance levels of H2S, the NJDEP took no readings of H2S.
162. SEP had contracted to bring in large volumes of additional cover soil to be
applied to the Site to further mitigate the H2S emissions. On June 26, 2013, SEP was actively in
the process of accepting these additional truckloads of soil when Defendants stormed the Site. It
was likely that there would never again have been an elevated reading of H2S at the Site, but
Defendants made sure this would never be known because they seized the Property, bulldozed
the Site and greatly exacerbated the odors.
163. At all times relevant hereto, Defendants knew and understood from multiple
experts that the hydrogen sulfide levels while the Property was under SEP’s control did not
constitute a threat to the public health and/or safety.
164. Since taking over the Site, Defendants’ activities have made the hydrogen sulfide
emissions rise to unprecedented levels. On the weekend of July 28, 2013, the hydrogen sulfide
levels spiked so high that the Township of Roxbury was prompted to twice (2x) issue a warning
to its residents about the H2S and to open a respite center where affected residents could seek
relief, something never done during the time SEP possessed and controlled the site.
165. Again on August 20, 2013, the hydrogen sulfide levels off-Site spiked to at least
369 parts per billion.
166. At all times relevant hereto, Defendants Roxbury Township, Christopher Raths,
Atlantic Response, Inc., Senator Bucco and Roxbury Mayor Fred Hall have supported,
participated in and assisted Commissioner Martin and the NJDEP with its unlawful seizure of
SEP’s Property.
33
167. At the time Defendants seized SEP’s Property, all Defendants knew or should
have known that the NJDEPs proposed plan to eliminate the H2S emissions – which the NJDEP
stated would take approximately 3 weeks – would not effectively reduce or eliminate the H2S
emissions.
168. SEP’s project engineer, Mr. Assadi, repeatedly advised the NJDEP that the
actions proposed by the NJDEP such as applying a product known as “Posi-Shell” and installing
stick flares would have no appreciable effect on the hydrogen sulfide levels on or off the
Property and that the only effective means of controlling the H2S emissions before the Landfill
is capped is through the use of cover soil, which SEP had done.
169. The NJDEP has now admitted that its use of Posi-Shell and stick flares has been
ineffective and that a new timetable and a new approach for addressing the markedly worse
odors is appropriate. Eight (8) weeks have gone by and the NJDEP is stating it will likely take
several more weeks to finish the job. However, according to the opinion of SEP’s engineer, Mr.
Assadi, the recognized authority on this subject, the actions taken by the NJDEP are not likely to
mitigate the odor issue.
170. At all times relevant hereto, Defendant Township of Roxbury has delegated to
Roxbury Mayor Fred Hall the responsibility for approving the Township’s position, plans and
actions related to the Fenimore Landfill and Defendants’ improper, unlawful and ill-advised
seizure thereof.
171. At all times relevant hereto, Defendant Commissioner Bob Martin has been
ultimately responsible for establishing, controlling, guiding, dictating and overseeing Defendant
NJDEP’s handling and treatment of Plaintiffs and policies and procedures related to the
Fenimore Landfill.
34
172. Defendants have not provided any compensation to Plaintiffs for Defendants’
unlawful seizure of the Property.
COUNT ONE
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(General Allegations)
173. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-172 of this Complaint.
174. In committing the acts complained of herein, Defendants acted under color of
state law to deprive Plaintiffs of certain constitutionally protected rights under the First, Fifth,
and Fourteenth Amendments to the Constitution of the United States including, but not limited
to: (a) the right not to be deprived of property without due process of law; (b) the right to just
compensation for taking of property; (c) the right to exercise free speech without fear of
governmental retaliation; (d) the right to equal protection of the laws.
175. In violating Plaintiffs’ rights as set forth above and other rights that will be proven
at trial, Defendants acted under color of state law.
176. As a direct and proximate result of the violation of their constitutional rights by
the Defendants, Plaintiffs suffered general and special damages as alleged in this Complaint and
are entitled to relief under 42 U.S.C §1983.
177. The conduct of Defendants was willful, malicious, oppressive and/or reckless, and
was of such a nature that punitive damages should be imposed in an amount commensurate with
the wrongful acts alleged herein.
35
COUNT II
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Deprivation of Property Without Due Process of Law)
178. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-177 of this Complaint.
179. Each Defendant, in concert and conspiracy with the other Defendants,
intentionally violated the civil rights of the Plaintiffs by their malicious and wanton disregard for
Plaintiffs’ property rights. Defendants’ actions described herein amounted to the deprivation of
property in violation of the Fifth and Fourteenth Amendments.
180. By and through their actions described herein, Defendants actually and
proximately inflicted an outrageous violation of constitutional rights upon Plaintiffs, for which
Defendants are liable and Plaintiffs seek damages therefor.
181. Defendants, either with the specific intent to violate the Plaintiffs’ civil rights or
with a reckless disregard of the probability of causing that violation, set about harassing and
interfering with Plaintiffs’ lawful remediation activities in such a manner that it went beyond the
bounds of decency. Defendants’ actions are and should be considered atrocious and utterly
intolerable in a civilized community which is founded upon the rule of law and not upon the
whims and malicious bullying tactics of local politicians, corrupt judges and vindictive and
malicious State agencies. Therefore, Plaintiffs are entitled to compensatory and punitive
damages.
COUNT III
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Deprivation of Plaintiff’s Substantive Due Process Rights)
36
182. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-181 of this Complaint.
183. Each Defendant, in concert and conspiracy with the other Defendants, and with
malicious and reckless disregard for Plaintiffs’ Constitutional rights, intentionally violated
Plaintiffs’ right to substantive due process of law by and through their role in creating,
proposing, adopting, ratifying, obeying, following, enforcing, furthering or otherwise acting in
concert with the other Defendants who played a role in pushing through and adopting the new
Bucco Legislation (N.J.S.A. 13:1E-125 et seq.) which is itself unconstitutional inasmuch as it is
clearly special legislation intended to harm Plaintiffs, it usurps judicial authority and improperly
infringes upon and violates the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 et
seq.
184. By and through their actions described herein, Defendants actually and
proximately inflicted an outrageous violation of constitutional rights upon Plaintiffs, for which
Defendants are liable and Plaintiffs seek damages therefor.
185. Defendants, either with the specific intent to violate the Plaintiffs’ civil rights or
with a reckless disregard of the probability of causing that violation, set about harassing and
interfering with Plaintiffs’ lawful remediation activities in such a manner that it went beyond the
bounds of decency. Defendants’ actions are and should be considered atrocious and utterly
intolerable in a civilized community which is founded upon the rule of law and not upon the
whims and malicious bullying tactics of local politicians, corrupt judges and vindictive and
malicious State agencies. Therefore, Plaintiffs are entitled to compensatory and punitive
damages.
37
COUNT IV
New Jersey Civil Rights Act
(N.J.S.A. 10:6-1 et seq.)
186. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-185 of this Complaint.
187. While acting under color of state law, Defendants, by and through their actions
described herein, have deprived and/or interfered with Plaintiffs’ substantive due process and
equal protection rights, privileges or immunities secured by the Constitution or laws of the
United States.
188. Accordingly, Plaintiffs hereby bring a civil action for damages and other
appropriate relief pursuant to the New Jersey Civil Rights Act, N.J.S.A. 10:6-2.
189. As a direct and proximate result of the actions and omissions of Defendants
described herein, Plaintiffs suffered substantial losses and emotional distress and suffering.
COUNT V
New Jersey Common Law
(Civil Conspiracy)
190. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-189 of this Complaint.
191. Each Defendant named herein, by and through their actions described above,
knowingly and maliciously participated in a common design through a concert of action to
violate Plaintiffs’ rights and to harass and interfere with Plaintiff’s lawful activities.
192. In committing the aforementioned acts, each Defendant directly and proximately
injured, damaged, and caused emotional distress and financial damages to the Plaintiffs herein.
38
COUNT VI
Violation of Civil Rights Pursuant to Title 42 U.S.C. §1983
(Deprivation of Property Without Just Compensation)
193. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-192 of this Complaint.
194. Each Defendant, in concert and conspiracy with the other Defendants, by and
through their actions described herein, deprived Plaintiffs of their property without just
compensation, for which Defendants are liable and Plaintiffs seek damages therefor.
195. Plaintiffs are entitled to the fair value of their property of which they have been
deprived by Defendants.
196. Plaintiffs seek a judgment in the amount of the fair value of the property of which
they have been deprived, specifically: (a) the real property located on Mountain Road in
Roxbury Township, New Jersey which is the subject of this action; (b) Plaintiffs’ use and
enjoyment of the subject real property, (c) the value of Plaintiff Marilyn Bernardi’s membership
interest in and to Plaintiff Strategic Environmental Partners, LLC.
COUNT VII
New Jersey Common Law
(Conversion)
197. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-196 of this Complaint.
198. At all times relevant hereto prior to December 31, 2012, and then again from
January 3, 2013 to June 26, 2013, Plaintiff Strategic Environmental Partners, LLC has held clear
39
legal ownership and possession of the subject real property located on Mountain Road in
Roxbury Township, New Jersey.
199. Defendants, by and through their actions described herein, have conspired to
convert and have in fact unlawfully converted Plaintiffs’ property to property owned, controlled
and/or occupied by Commissioner Martin, the NJDEP, Atlantic Response, Inc. and/or Roxbury
Township.
200. As a result of Defendants’ unlawful conversion of Plaintiff’s real property,
Plaintiff SEP has been harmed.
COUNT VIII
New Jersey Common Law
(Tortious Interference with Contract)
201. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-200 of this Complaint.
202. At all times relevant hereto Plaintiffs SEP and Richard Bernardi were parties to a
contract with Defendant NJDEP related to the remediation of the Landfill.
203. Defendants, by and through their actions described herein, have knowingly,
intentionally, maliciously and with intent to deprive Plaintiffs of the benefits and rights under
said contract with the NJDEP actively and effectively interfered with said contract.
204. Defendants’ interference with Plaintiffs’ contract was wholly unjustified and
unlawful.
205. As a result of Defendants’ intentional and malicious interference with Plaintiff’s
contract, Plaintiffs have been harmed.
40
COUNT IX
New Jersey Common Law
(Tortious Interference with Prospective Economic Advantage)
206. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-205 of this Complaint.
207. At all times relevant hereto Plaintiff SEP had a protectable right in the form of a
protectable prospective economic advantage related to SEP’s remediation of the Landfill and
redevelopment of the Property.
208. Defendants, by and through their actions described herein, have knowingly,
intentionally, maliciously and with intent to deprive Plaintiff of the benefits and rights of its
prospective economic advantage, conspired to interfere with and did interfere with Plaintiff’s
prospective economic advantage.
209. Defendants’ interference with Plaintiffs’ prospective economic advantage was
wholly unjustified and unlawful.
210. As a result of Defendants’ intentional and malicious interference with Plaintiff’s
contract, Plaintiffs have been harmed.
COUNT IX
Declaratory Judgment
(28 U.S.C. §2201)
211. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-210 of this Complaint.
212. Plaintiffs request from the Court a Declaratory Judgment pursuant to 28 U.S.C.
§2201 declaring the new Bucco Bill (N.J.S.A. 13:1E-125 et seq.) unconstitutional and of no
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force and/or effect as against Plaintiff for any act, omission and/or conduct which occurred prior
to the enactment of said bill on June 26, 2013.
COUNT X
Conflict of Interest
(N.J.S.A. 52:13D-12 et seq.)
213. Plaintiffs reallege and incorporate herein by reference the allegations set forth in
paragraphs 1-212 of this Complaint.
214. Defendants Senator Bucco and Irene Kropp, by virtue of their actions as described
herein, have violated the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq.
215. As a direct and proximate result of Defendants’ breach of the New Jersey Conflict
of Interest Law, Plaintiffs have been harmed.
PRAYERS FOR RELIEF
WHEREFORE, the above facts and claims considered, Plaintiffs demand:
1. That process issue to the Defendants and that they be required to answer in the
time allowed by law.
2. That judgment be rendered in favor of the Plaintiffs and against the Defendants on
all causes of action asserted herein.
3. That Plaintiffs be awarded those damages to which it may appear they are entitled
by the proof submitted in this cause for their physical and mental pain and suffering, both past
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MATTHEW M. FREDERICKS, ESQ.
Attorneys for Plaintiffs,
Strategic Environmental Partners, LLC,
Marilyn Bernardi and Richard Bernardi
By: /s/ Matthew M. Fredericks, Esq._____
Matthew M. Fredericks, Esq.
DATED: August 21, 2013
JURY DEMAND
Plaintiffs hereby demand a jury in this action.
MATTHEW M. FREDERICKS, ESQ.
Attorneys for Plaintiffs,
Strategic Environmental Partners, LLC,
Marilyn Bernardi and Richard Bernardi
By: /s/ Matthew M. Fredericks, Esq.____
Matthew M. Fredericks, Esq.
DATED: August 21, 2013