# Petition for Writ of Certiorari — Fernandes v. Rockaway Township Town Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1158%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 510 U.S. 863 ## Text NO. THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1993 NELSON A. FERNANDES _ PETITIONER Ve ROCKAWAY TOWNSHIP TOWN COUNCIL & RESPONDENT TOWNSHIP ENGINEER PETITION FOR WRIT OF CERTIORARI NELSON A. FERNANDES 9 FOX RUN DENVILLE, N.J. 07834 (UNASSISTED PRO-SE) THE QUESTIONS FOR REVIEW 1. Was the petitioner denied due process in the primary sense by the erroneous application of the statute of limitations, among other errors. 2. Did the EPA violate federal statutes and regulations by imposing a grant condition that bars owners of lots with wetlands from connecting to the federally funded plant. 3. Did the RVRSA and Rockaway Township violate 42 U.S.C. 2000d and state laws by accepting a grant condition that denies owners of lots with ESA's a connection to a sewer system funded with federal funds and assessments. 4. Does an ordinance or valid federal restriction meet the criteria of being "restricted pursuant to law" in N.J.S.A. 40A:12-13 to prevent the sale of a lot. 5. Can the Supreme Court review the violation of federal law and regulations based on public documents in order to provide guidance for the state courts, though the matter may require a remand for a trial of the factual issues. TABLE OF CONTENTS THE QUESTIONS FOR REVIEW i GROUNDS FOR JURISDICTION CONSTITUTIONAL PROVISIONS 2 AND STATUTES INVOLVED STATEMENT OF THE CASE CASE PRESENTED TO THE COURT 1 APPELLATE COURT RULED 11 ON THE FEDERAL ISSUE 2 THE EPA & RECIPIENTS OF GRANTS 17 ARE REQUIRED BY REGULATION AND STATUTE NOT TO DENY ANY PERSON THE BENEFITS OF A PROGRAM 3 ROCKAWAY TOWNSHIP VIOLATED 21 ITS GRANT OF POLICE POWER AND POWER TO CONTRACT 4 THE APPELLATE COURT ERRED BY 25 SUBJECTING STATE LAW ISSUES TO THE NOTICE PROVISIONS OF TORT CLAIMS ACT 5 JUDGE RUSSELL DID NOT DISMISS 29 THE CIVIL RIGHTS VIOLATION FOR FAILURE TO FILE WITHIN THE TWO YEAR LIMITATIONS PERIOD 6 JUDGE RUSSELL'S FINDING OF 31 BELATED DISCOVERY MUST APPLY TO ALL LIMITATIONS ISSUES 7 ROCKAWAY TOWNSHIP'S VIOLATION 3° OF THE COVENANT AND N.J.S.A. 46:4-6 ll TABLE OF CONTENTS 8 THE APPELLATE COURT FAILS TO SEE THE FRAUD WHICH VITIATES AN "AS IS" CONTRACT 9 TOWNSHIP ATTORNEY ACTED AS AN ADVOCATE - WITNESS AND RISKS A FRAUD UPON THE COURT 10 AN ISSUE OF FACT WAS DECIDED AT THE SUMMARY JUDGMENT HEARING 11 THE COURT DISMISSED STATE LAW ISSUES AFTER RECOGNIZING A MATERIAL ISSUE OF FACT EXISTED 12 RESPONDENT'S ACTIONS AMOUNTS TO A TAKING CONCLUSION COURT ORDERS FEDERAL & STATE STATUTES (DETAIL) iil 45 51 59 61 TABLE OF AUTHORITIES CASE: PAGE NO. AMG Associates v. Tp. of Springfield, 65 N.J. 101, 112 (1974) ww 58 Atlantic City Hospital v. Finkle, 110 N.J. Super. 435, 265 A.2d 8...........26, 27 Baker v. Aetna Life Insurance Co., 264 N.Y. 150, 190 N.E. 327 ................ 37, 40 Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633........ 49 Board of School Commissioners v. Hahn, 246 Ala. 662, 22 So. 2d 91.(S.C.1945).37, 40 Burd v. New Jersey Tel. Co., supra., PO TRE. Hk BP iiitavdilidiaawtnaiasantiin 32 Campbell v. Holt, 115 U.S. 620, 6 S.Ct. BF BF het Wed CERI icine cceticicteness 12 Chicago, RB. & Q. R.R. Co. v. State, 47 Neb. 549, 66 N.W. 624, 630........... 57 City of Scotsbluff v. Winters Creek Comal (20., SB WG D5 S vcsiccsssvecessaneis 56 City of St. Louis v. Praprotnik., 485 U.S. LUZ, FOS S.CUSTS (19GB) wevceiciessnscsnsssss 14 Clark v. Riverhead Savings Bank, PRGE 1. 0 aes Ae I ieee 4] Coppage v. Kansas, 236 U.S. 1, 19........... 18 Crispin v. Volkswagenwerk, ASG... FS WS. FIG CEPOL vvccesvessdeccicnnvses 49 Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866........... 45,47 iV TABLE OF AUTHORITIES CASE: PAGE NO. Ex parte Virginia, 100 U.S. 339 ea iP cacnciiaieidlenatbiaiillniipiatninigrnectan sensed 44,55 Ferreira v. City of Asbury Park, 237 N.J. Super. 142, (A.D.1989)....... 13 Fossume v. Requa, 113 N.E. 330............ 4] French v. U.S. Fidelity & Guaranty Co., D.C., 88 F.Supp. 714 (195...............064. 37 General Mill Supply Co. v. SCA Services, Inc., 697 F2d. 704, 716 (1982)...47 Grogran v. DeSapio, 11 N.J. 308 (1953)..14 Hackett v. McGuire, 445 F.2d. 442 (3d. Cir. 1971).............. 18 Helms v. Hewitt, 655 F.2d 487, J ERS te, | SEERRRRERNO ea He eERenRAE 13 Hicks v. Weaver, 302 F.Supp. 619 RS, See 23 Hill v. Middletown Bd. of Ed., 183 N.J. Super. 36 (A.D.1982) ............ 27, 48 Holman v. Hilton, 542 F.Supp. 913, affirmed 712 F.2d. 854..................00008 12 In re Public Service Electric and Gas Co., Poe PR. Sey |) ene 22 Johnson v. Cyklop Strapping Corp., 220 N.J.Super.250, 263-265 (AD1987).....33 Jones v. Preferred Accidental Ins. Co, 226 Wis. 423, 275 NW 897 (S.C.1037)....37, 40 King v. Hilton, 525 F.Supp. 1192.......... 20 TABLE OF AUTHORITIES CASE: PAGE NO. Mc Laughlin v. Fowler, Cal.1880, 14 S.Ct. 1192,154 U.S. 663, 26 L.Ed.176.....1 Mount Pleasant v. Beckwith, Ey WR diankictisknanabacheaisioabiuibindiice 22 Naseef v. Cord, Inc., 90 N.J.Super. 135, 142, (A.D.1966), affirm....................0. 14, 41 Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928)........58 New England Foundation Co. v. Elliot A. Watrous, Inc., 27 N.E. 2d.756, 759....... 44 New Jersey D.E.P. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983)........ 43 No. Counties Hydro-Electric Co. v. United States, 70 F.Supp. 900.............. 57 Old Falls, Inc. v. Johnson, 88 N.J. Super. 441, 450 (A.D.1965).....36 Packard-Dallas, Inc. v. Carle, Tex.Civ.App., 163 S.W.2d 735, 737....44 Palma v. Powers, 295 F.Supp. 924 (1969)...............sec0e8 33, 34 Peabody v. United States, 231 U.S. 530, 2 tg Mee B32 Ok.) 57 Pennsylvannia Greyhound Lines, Inc. v. Rosenthal, 14 N.J.372, 384.(1954)......12 Pryor v. City of Buffalo, 197 N.Y. 123, IE: TIM Uasiccshanuskusicastiinsinheentcinsieensiannd 4] Ramsouer v. Midland Valley R. Co., RPE MINI BPE Mecciinahacsaisanscsasacscupsnsassen 41, 52, 53 Redner v. City of New York, 278 N.Y.S.2d 51, 54, 53 Misc.2d 148.......41 v1 TABLE OF AUTHORITIES CASE: PAGE NO. Reid v. City of New York, 736 F.Supp. 21 (E.D.N.Y. 1990).............. 26 Rowe v. Fauver, 533 F.Supp. 1239......... 12, 13 Sandler v. Lawn-A-Mat Chem & Equip. Corp., 141 N.J.Super. 437 (A.D. 1976).15, 39 Schwartz v. Wenger, 267 Minn. 40, 43-44 124, N.W. 2d 489, 492 .............00000000. 45 Skowysz v. City of Ventnor, 110 N.J. Super. 340, 265 A.2d. 554...21 Summer v. Teaneck, 53 N.J.548 (1969)..23 Super Tire Eng. Co. v. McCorkle, C.A.N.J. 1977, 550 F.2d 903, cer, .....16 Tessler & Sons, Inc. v. Sonitrol Sec. Systems, 203 N.J.Super. 477.............. 42 Trafficante v. Metropolitan Life Insurance i A ele Be i neiatetsstceanecenese 18 U.S. v. Champlin Ref. Co, 341 U.S. 290, 297, 71 S.Ct. 715, 95 L.Ed. 949, 955 (1951).14 U.S. Ex Rel. Triano v. Superior Ct. of N.J., Fe FI. LOGE CED. icssnssisrnesdnscnessoss 46 United States v. Pranth, 764 F.2d 548 IE Biot semiamnecanieadacasesinninstnceedasinasses 48 United States v. Shimer, 367 U.S. 374, 381-382 (1961).............. 11,20 Verbeem v. U.S. D.C. Mich.1957, 154 F.Supp. 431, affirmed 78 S.Ct....... 17 Vitek v. Jones, 445 U.S. 480, 489, 100 S.CLLZS4, 1261, © 1. Eé......i....... 13 Wagner v. Mayor and Municipal Council of City of Newark, 24 N.J.467............. 21 Vil TABLE OF AUTHORITIES CASE: PAGE NO. Weintraub v. Krobatsch, 64 N.J. 445....... 42 Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2D 254......... 26, 30 Winsett v. McGinnes, 617 F.2d 996, 1005 CRUE WU Minctleuntssonconstscodcscnksnapes 12 Wolff v. McDonnell, 418 U.S. 539, 557-558, oP ey, Re. oe | ene 12 Worchester v. Street Railway Co., FFG UD. FIM, Fag CO cccceveneedinencnes 13, 18, 42 Young v. Pierce, 544 F.Supp. 1010 ...... 18 14 th. Amendment.....................222. 12, 15, 18, 23, 44 yp BERS ti yy | ree l A rie I ta cistcecenecnaccesensmanneguces 1, 9, 14, 26, 30, 55 ee ss Miia hs snccacasnnnedvaxeeccads 3, 4, 17, 19, 20, 22, 23 4 a) Ds Sane 3, 19, 20, 22, 56 40 CFR CH. I (7-1-88) 6.302 (a) .... 3 ey YO) 17, 20 40 CFR Ch. I (7-1-85 )35.925-13...17, 18 40 CFR CH. I (7-1-88) Sub. F.(e) 3, 19, 20 Oe Tdi We ivttsastescrnsacéiaeenens 42 Bee 4 yh ener 6, 9, 11, 13, 14, 16, 23, 26, 37, 36, 40, 42, 50 Pahl hs SP Mensersscnsnscsniesscvevevincet 4, 23 Paes MO Rasincshandsnecwinsntccnenbtiets 0 ee ao | eee 6 PRR. SPN, SP vissineriashccssncatounn 26 PE SR eas secannsssacmececenunraan 32 ae: PW tascaiceiacepedsneeaecsacaneat 45 CORRE, SED Rensens cacashicosesncesaiiicenee 4, 21, 35, 55 Corbin on Contracts, section 551.35, 37 Vill REFERENCE TO OFFICIAL OPINIONS Supreme Court Order on Reconsideration 5/13/93...61 Supreme Court Order 5/13/93 ......ccccccccccccecceccecceceeee. 62 Appellate Court Opinion 1/22/93 ..00..0.ccccceccccceccecceeee. 63 Judge Russell's Order on Reconsideration Lo 2 SUR ey ae 67 Judge Russell's Order 1/3/92...0......cccccccccsscesceccesseccecceeees 72 Judge Harper's Order on Reconsideration 7/10/91......... 74 No Original Order was filed by Judge Harper............... 75 Judge Harper's Oral Multiple Findings..................... 25 MINE MU NUON cosa scaserccoareductaccosaskvonssnserereossines 47, 51 Findings on Engineer's Misstatement....................... 53 Judge Russell on Statute of Limitations..................... 29, 32 ne iscsi cacoersassnpueniouns 29, 46 Proposed Complaint limitations.......0..0.0..0.cccccccccscee- 30 See Oh RIEU CIO on scnecensnsercocsosscseosiseeoanseessoves 52 Appellate Court Opinion & Analysis Dismissal of State Created federal right.................. 1] PONUIN OE ROIREIIIIND oa c.n.cncensecenvencnsnscosesssconsoceee: 26 Acceptance of Terms & Conditions. .....0........00.0000.. 39 1X GROUNDS FOR JURISDICTION The Supreme Court of New Jersey denied a motion for reconsideration filed on MAY 13, 1993. The Supreme Court of New Jersey denied a petition for Certification filed on MARCH 17, 1993. The Appellate Court of New Jersey filed their affirmation of the lower court judgment on JAN. 22, 1993, which affirmation includes their opinion on the matter. The case was not to be published. This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1257(3). The lower court erroneously dismissed a 42 U.S.C. §1983 civil rights complaint for failure to file a timely complaint, giving this Court jurisdiction in accordance with Mc Laughlin v. Fowler, Cal.1880, 14 S.Ct. 1192,154 US. 663, 26 L.ed. 176. The lower court also dismissed state law issues by applying an incorrect statute of limitations as a result of the civil rights action. The Appellate Court found there was no violation of N.J.S.A. 40A:12-13, which prejudices the petitioner upon remand. PAGE 1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED PAGE FIFTH AMENDMENT ..cc.cccocccovscccccscccsecssccssees 77 FOURTEENTH AMENDMENT...............c0000 77 ee ics itainentiecttennininneneninnimannaniannnnnnn 78 Ce Ue Ge niece 79 40 CFR CH. I (7-1-88) Subpart F..................... 80 40 CFR CH. I (7-1-88) §6.302............ccccccssseesees 81 40 CFR Ch. I (7-1-85 Edition) § 35.925-13 (e) 82 OCIS SGT BE encentecsscnsennnernszesnenesesensses 82 Assist. I.D. No. C340389-04 amend. no. 1 CAD sceriiccicnsnnnssniancsnniinnimnennneninetnncentmnanncmannnens 83 Sd ieesecaessiiichinaenlnsiannniaininatiennenhinnsantntissnanninetinnn 84 ae Sct © Fe Diisteentenetensneetntnncessopnesentnsnnencrnent 84 heidi, SOATEST S. G (O) secererevevsesveevessecseneceees 85 A ici ieverreerernenreci 86 ls SE ietneeecennermimninnenninenenenncenevetenens 86 Peatictbalta, OTE i DP ansnennnneyseneneesenennecsnnntnncssnntenencosees 87 §54-100. ROCKAWAY'S LAND USE ORD..88 REO Bssenrseesnesecsnecenetinennsnecensnnennentensesnentenennenss 88 STATEMENT OF THE CASE The RVRSA (Rockaway Valley Regional Sewer Authority), a quasi-public sewer authority composed of municipal members including the respondent, Rockaway Township, applied to the EPA for a grant to build a sewage treatment plant. The EPA agreed to provide the grant if the RVRSA would deny connection to the owners of vacant lots with ESA's (Environmentally Sensitive Areas) in the form of wetlands and floodplains for a period of fifty years. The RVRSA agreed to this condition in Assistance I.D. # C340389-04 amend. no. 1. 40 CFR CH. I (7-1-88) §6.302 (a) requires that the EPA comply with Executive Order 11990 for the protection of wetlands. Executive Order 11990 as signed by Jimmy Carter requires "each agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands." The EPA exceeded these limitations by imposing a grant condition that violates 40 CFR CH. I (7-1-88) Subpart F (e) Civil Rights Act. "You must wi ti 2. Title VI of the Civil Rights Act of 1964. (42 USC, 2000d), and related nondiscrimination laws and Executive Order 11246. "These PAGE 3 2000D." The RVRSA and respondent agreed to violate this federal statute by accepting the grant condition. The EPA required the RVRSA hold a public meeting to notify the affected owners of the loss of this vested property right that would prevent the development of their land. The municipal members of the RVRSA, more specifically Rockaway Township, attended this meeting and subsequently instituted land use ordinance §54-100 L. which denies connection to the owners of lots affected by ESA's. This ordinance violates 42 U.S.C, 2000d, as well as N.J.S.A, 40:48-2, which states "Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States."' Their action is also contrary to state case law which prohibits municipalities from dealing with issues that requires uniform statewide treatment. The municipal denial was based on maps and a list of affected lots generated for the public hearing. During this hearing they informed the affected owners of the loss of a vested property interest, which prevents development and represents a practical . . confiscation. [he procedure followed after the plant opened began with the Township's denying the right to connect to the sewer lateral without mention of the land use ordinance PAGE 4 passed in support of the grant condition. The procedure to appeal that denial required a resolution from the Township approving the construction before the RVRSA would review the application. Initially, the Township refused _ this resolution, which resulted in a year and a half of effort before they would grant it. When approved, the resolution was forwarded to the RVRSA, who approved and forwarded the application to the NJDEP (New Jersey Department of Environmental Protection). They openly stated that their policy was to reject these applications. They then forwarded the application to the EPA, who also stated that it was their policy to reject the application. Consequently, this appeal procedure was a sham that provided the appearance of an appeal mechanism. It layered one public agency on another, exhausting the applicant from further pursuing his rights after being rejected on so many levels. The appearance of being supported on every official level concealed the EPA's violation of federal statute and regulation. Anyone reaching the EPA was met by a number of attorneys, which precludes the thought of their having violated federal statute and regulations. Of the 320 lots affected by the EPA grant Condition within the scope of the RVRSA, it appears none have challenged this arbitrary contractual condition. PAGE 5 is | Rockaway Township profits from this situation by denying access to the sewer and when the lot reverts to them for nonpayment of taxes, they conceal the existence of the EPA Grant Condition and their land use ordinance in order to sell affected lots at public auction with a starting bid. They continue to profit by taxing an otherwise useless lot. This may lead to reselling these lots to others by those Originally injured, which further increases the circle of injury, as a result of the municipality's initial conduct. Rockaway also sells tax sale certificates on affected lots to profit from that avenue after an owner gives up. The statute that authorizes the sale of lots no longer needed for public use by the municipality, N.J.S.A. 40A:12-13, has a prohibition against selling lots that are "dedicated or restricted pursuant to law" and that "Such restrictions or The petitioner purchased a lot owned by Rockaway Township as the result of being the successful bidder at a public auction. This lot was affected by the Grant Condition. He also purchased the adjacent lot, which required purchasing a tax sale certificate. This lot was likewise affected, providing grounds for a refund based on N,J.S.A. 54:5-43. Rockaway Township also misrepresented both lots as being able to connect to the sewer system. Rockaway PAGE 6 Township subsequently approved the subdivision of these adjoining lots though contrary to statute due to the grant condition. Shortly afterwards, they refused to provide building permits as a result of the grant condition. It should be noted that Rockaway Township provided successful bidders with a covenant in the resolution and deed as part of the contract. That covenant says they had done nothing to affect the lot sold, by force of statute N.J.S.A, 46:4-6. Their approval of the EPA grant condition and passage of a land use ordinance violates this covenant. Prior to building the sewage treatment plant, the municipal members of the RVRSA had a ban against new construction for many years, unless the lot could support a septic system. Therefore, lots that could be developed in this fashion had already done so. Consequently, wetland lots, as well as those with other logistical problems, needed a sewer connection to make construction feasible. The EPA grant condition effectively prevents development by denying access to the benefit of a federally funded sewer treatment plant. The EPA knew the result. . . confiscation. I submit to this Court that the EPA's conduct represents a new approach to violating constitutional rights. This is achieved by requiring recipients of grants to deny owners the right to connect to a federally funded PAGE 7 eee improvement, thus preventing development and effectuating a practical confiscation. The EPA compelled acceptance of this violative condition by recipients or be refused funding. Even their administrative agency review is aimed at reaffirming the denial until the applicant is frustrated into submission by a costly and time consuming process. It serves as a design for future forays. I trust the mechanism used will be of interest to this Court if the issue of violating the property rights of individuals is not significant in comparison to other issues presented to this noble tribunal. PAGE 8 CASE PRESENTED TO THE COURT The petitioner filed a 42 U.S.C. 1983 civil rights action against Rockaway Township in the Law Division of the Superior Court of New Jersey. The complaint included issues of fraud, breach of contract, warranty and violations of state statute. The petitioner moved before the court of first instance for a finding that the defendant had violated N.J.S.A. 40A:12-13, a state statute, by selling a lot affected by an EPA grant condition. The petitioner did not present the court with its civil rights violation, since the statutory violation appeared very clear and could be disposed on motion. The respondent moved for a dismissal based on failure to file a timely tort claim. The court dismissed the state law issues on the grounds that petitioner failed to file a timely tort claim and on findings that there was no fraud. The court also disregarded the engineer's misstatement of a material fact. Ever since Judge Harper rendered that finding, the petitioner has been subjected to further findings couched on that initial decision. The court's oral findings are presented in applicable arguments to establish a proper context for review. Argument I presents an overview of the petitioner's Original case and the Appellate dismissal, which has since PAGE 9 been expanded to include another violation of federal law as a result of the Appellate Court findings. Arguments 2 & 3 review the additional violation of federal and state law. Arguments 4 - 11 deals with the errors of the court below and the Appellate Court. Argument 12 outlines the confiscation of rights that violates the 14 th. Amendment amounting to a "taking" and the result of that violation became the basis for the resolution for public sale. Not being an attorney, the petitioner has wrestled with the approach to presenting these issues, starting with a complex initial violation and followed by a number of errors that have denied the petitioner a trial and resulted in uncovering one more violation that started this scenario. | pray the approach taken is clear, concise and presents the issues in a manner acceptable for this Court's consideration. PAGE 10 ARGUMENT 1 APPELLATE COURT RULED ON THE FEDERAL ISSUE The Appellate Court considered this case dismissed for failing to file a timely tort claim and for filing a civil rights action beyond the statute of limitations, but also held: "While there may be reasons to suggest that a municipality should generally advise prospective purchasers of a known sewer ban relating to property to be sold at public auction, this is a matter for legislative policy, and we are referred to no authority in statute or case law so holding. We reject plaintiff's argument that N.J.S.A, 40A:12-13 barred the sale as “restricted pursuant to law,""" The petitioner contends the EPA Grant Condition was a valid federal restriction in accordance with the following : "Federal regulations have no less pre-emptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review to determine whether he has exceeded his statutory authority or acted arbitrarily." United States v. Shimer, 367 U.S. 374, 381-382 (1961). Rockaway Township violated _N.J.S.A. 40A:12-13, the statute that authorizes public sale but prohibits the sale of lots "restricted pursuant to law", by selling a lot with a valid preemptive federal restriction. This statute creates a PAGE 1] property interest subject to protection by the 14th. Amendment based on the following : "Liberty and property interests protected under Fourteenth Amendment may be created by state law; i ; sand f fadenal ‘tutional I ‘th lef procedural preferences expressed by state legislature or state courts, U.S.C.A. Const. Amend. 14." See, Holman vy. Hilton, 542 F.Supp. 913, affirmed 712 F.2d. 854. Rowe y. Fauver, 533 F.Supp. 1239; Wolff v. McDonnell, 418 U.S. 539, 557-558, 94 S.Ct 2963, 2975, 41 L.Ed.2d 935 (1974); Winsett v. McGinnes, 617 F.2d 996, 1005 (3rd.Cir. 1980). N.J.S.A., 40A:12-13 creates a "vested right", and the Fourteenth Amendment secures it against invasion. Thus, to sell lots diminished by legislative action which amounts to a taking offends the 14 th. Amendment and this statute. Pennsylvannia Greyhound Lines, Inc. v. Rosenthal, 14 N.J. at 384 (1954) defined vested rights as follows: "the concept it expresses is that of a present fixed interest which in right reason and natural justice Should be protected against arbitrary state action-an innately just and imperative right that an enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny. Such seems to be the principle of Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885). ” Rowe v. Fauver, supra., also held that the test of a state created liberty is whether the state law creates "justifiable PAGE 12 em | expectation" that "the liberty will not be infringed except upon the occurrence of specified events". Helms v. Hewitt, 655 F.2d 487, 493 (3d.Cir.1981); see also Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct.1254, 1261, 63 L.Ed.2d 552 (1980). That expectation is established by prohibiting government from selling lots "restricted pursuant to law". Rowe v. Fauver, supra., further concluded: "Guidance in construing the state law may be obtained not only from the plain language of the statute but also from authoritative interpretations by state court." , 237 N.J. Super. 142, (App.Div.1989) provides that guidance with the following: "the municipality may sell any such property, "other than... real property otherwise dedicated or restricted pursuant to law." In this context, we conclude that the phrase "real property otherwise dedicated or restricted pursuant to law" in N.J.S.A. 40A:12-13 means real property otherwise dedicated or restricted pursuant to a statute, not by deed language." The following federal holding expresses the same view as the preceding finding and the statute: "Property which is held by these corporations upon conditions or terms in a grant and for a special use, may not be diverted by the legislature." Worchester vy. Street Railway Co., 196 U.S. at 551, 1904 The courts are then bound to interpret the statutory wording PAGE 13 of “restricted pursuant law", which is found to mean "restricted pursuant to statute" in accordance with: "to be given the generally accepted meaning unless the contrary intent is clear." Grogran y. DeSapio, || N.J. 308 (1953); U.S. v. Champlin Ref Co., 341 U.S. 290, 297, 71 S.Ct. 715, 95 L.Ed. 949, 955 (1951). The federal restriction clearly meets the criteria in N.J.S.A. 40A:12-13, so the respondent's violation requires the contract be rescinded based on the following:: "If it clearly appears that a contract has as its direct object and purpose a violation of the Federal and state constitution. Federal or state statutes, some ordinance of a city or town, or some rule of the common law courts will not lend their aid to its enforcement." Zeitz v. Foley, 264 S.W. 2d 267 (Ky.Ct.App.1954); cited in Naseef v. Cord, Inc. 90 N.J. Super.135, 142 (A.D.1966) The Supreme Court in the case of City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915 (1988) concluded that municipalities may be sued directly if a government body is alleged to have caused a constitutional tort through policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers. The Council's passage of a resolution to sell a lot they knew to be affected by a federal restriction which amounts to a violation of a state statute represents a § 1983 violation. Furthermore, the sale of a lot so diminished in rights that it PAGE 14 is offensive to the 14 th. Amendment also violates the state statute. And upon selling the lot, Rockaway Township violated the petitioner's rights. The Appellate Court's finding disregards the federal authority to impose the restriction, on one hand, and fails to recognize the right to be free of that restriction on the other. In an effort to establish the EPA's statutory authority to impose the Grant Condition, the petitioner has discovered that the EPA violated its authority, while the RVRSA and the respondent violated another federal _ statute. Consequently, the respondent's violation of the petitioner's civil rights remains unchanged, except that it begins with yet another violation of constitutional law. That violation is reviewed in the next two arguments. The Appellate Court affirmed the lower court dismissal, then made further findings contrary to the following: "Such a base for decisions effectively bars an excursion by this appellate tribunal into the realm of independent fact findings." Sandler v. Lawn-A-Mat Chem & Eguip. Corp., 141 N.J.Super. 437 (A.D. 1976). The court below and the Appellate Court failed to realize that the sale of the lot represented the culmination of Rockaway's violation, which started with the passage of the resolution containing wording to impose the federal PAGE 15 restriction on a buyer. The courts view this condition as binding, when in actuality it is evidence of their fraud. The Appellate Court's erroneous finding that the petitioner failed to file a timely complaint and that the respondent did not violate N.J.S.A. 40A:12-13, which creates federal property interest, provides the Supreme Court with jurisdiction based on Super Tire Eng. Co. v. McCorkle, C.A.N.J. 1977, 550 F.2d 903, certiorari denied 98 S.Ct. 106, 434 U.S. 827, 54 L.Ed.2d 86, rehearing denied 98 S.Ct. 753, 434 U.S. 1025, 54 L.Ed.2d 773. PAGE 16 ARGUMENT 2 THE EPA & RECIPIENTS OF GRANTS ARE REQUIRED BY REGULATION AND STATUTE NOT TO DENY ANY PERSON THE BENEFITS OF A PROGRAM The EPA and recipients of grants are subject to 40 CFR, dated 7/1/85, which contains the same provision as in the current regulation, § 30.600 (e) Civil Rights Act which requires compliance with 42 U.S.C 2000d by preventing th lusion r fi icipati denying them the benefits of, or discriminating against them on the basis of race, color, or national origin under any program or activity involving Federal financial assistance. The EPA required that the respondent violate this regulation and statute based on authority derived from 40 CFR Ch. I (7-1-85 Edition) § 35.925-13, a regulation that is repugnant to 42 U.S.C. 2000d based on the following finding:: "The meaning of a statute, clear and unambiguous on its face, may not be varied by administrative decisions." Verbeem vy. U.S. D.C. Mich.1957, 154 F.Supp. 431, affirmed 78 S.Ct. 1006, 356 U.S. 676, 2 L.Ed. 1072. it would appear that the sewer hookup restriction in § 35.925-13 was targeted for the lands owned by the signers of the agreement, not the public, which would be in keeping with the following Supreme Court holding: "Property which is held by these corporations upon conditions or terms in a grant and for a special use, may not be diverted by the legislature." Worchester vy. Street Railv way Co., 196 U.S. at 551, 1904 Otherwise, “ny its owne ight, contrary to the following holding: "The benefits of the affirmative duty placed on federal funding agencies, created by _§ 2000d, inure to all persons whose rights to equal treatment are enhanced by the positive efforts of the government." Young vy. Pierce, 544 F.Supp. 1010 (1982) The following holding makes it clear that everyone is entitled to the benefits of such a program: "The Supreme Court has declared that the Civil Rights Acts evince a congressional intention to define standing as wed as is permitted by Article ITT of the Constitution. ' r v r Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d. 415 (1972). See also Hackett v. McGuire, 445 F.2d. 442 (3d. Cir. 1971). The EPA Grant Condition further transgresses the following holding from Coppage v. Kansas, 236 U.S. 1, 19: "the Fourteenth Amendment debars the States from striking down personal liberty or property rights, or materially restricting their normal exercise, excepting so far as may be incidentally necessary for the accomplishment of some other and paramount object, PAGE 18 and one that concerns the public welfare._The mere sees r Mihergy i ‘oh ; . M ”f 4 WwW. ” a_legitimate object of the police power; for such restriction is the very thing that is inhibited by the Amendment." (Emphasis Added) Executive Order 11990 calls for the preservation of wetlands from new construction. By listing the lots that meet this criteria and prohibiting their connection to a sewer, it fulfills its mandate specifically, not incidentally. It also denies the owner a right protected by statute as the object of the police power. It effectively confiscates private property by taking "vested" rights.. The principle of estoppel is appropriate here, since municipalities throughout this state require that homes connected to a septic system be connected to a central sewer system when made available. Taking the reverse position is merely a justification for taking private property. The RVRSA violated federal law and regulations by accepting the grant condition, which is contrary to 42 U.S.C, 2000d. and 40 CFR CH. I (7-1-88) Subpart F. Furthermore, the RVRSA's members established land use ordinances in support of a condition that violates state law. The federal violation is supported by the following: "Liberty interests entitled to protection under Fourteenth Amendment may be _ created by administrative regulations. U.S.C.A. Const.Amend. 14." See, King v. Hilton, 525 F.Supp. 1192. "Federal regulations have no less pre-emptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review to determine whether he has exceeded his statutory authority or acted arbitrarily." United States v. Shimer, 367 U.S. 374, 381-382 (1961). The grant condition imposed by the EPA (Assistance I.D. No. C340389-04 amendment no. 1) contravenes 40 CFR § 30.600 (e), 40 CFR CH. I (7-1-88) Subpart F., Executive Order 11990, and 42 U.S.C 2000d by denying the owner of a lot affected by the grant condition access to the sewer treatment plant built with federal funds and local tax_assessments. The EPA, RVRSA and its member communitys' agreement to violate this federal statute is clearly contained in the above referenced amendment. Therefore, Rockaway's initial violation begins here. PAGE 20 ARGUMENT 3 ROCKAWAY TOWNSHIP VIOLATED ITS GRANT OF POLICE POWER AND POWER TO CONTRACT Rockaway Township passed §54-100 L, a land use ordinance which prohibits connection of wetland lots to the sewer treatment plant. It did so in support of a contractual condition which contravenes a federal statute. Rockaway's legislative act was required by the following holding: "A municipality cannot act as an individual does: it must proceed in conformity with statute or, in_the absence of statute, with the common law, by ordinance, or resolution or by motion: this is especially true with respect to real estate." Skowysz vy. City of Ventnor, 110 N.J. Super. 340, 265 A.2d. 554 (1970). However, the passage of this ordinance, as well as their approval of the grant condition as a member of the RVRSA., not to mention the RVRSA's acceptance of the grant condition, was beyond their power to contract and their police powers based on the following holdings: "The grant of police power "relates to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability."" Wagner vy. Mayor and PAGE 21 | Municipal Council of City of Newark, 24 N.J. 467, 478 (1957). "Hence the municipality may not legislate upon an aspect of a subject "inherently in need of uniform treatment." In-r ji rvi ri in 35 N.J. 358, 371 (1961). The case of Mount Pleasant v. Beckwith, 100 U.S. 514, held that where no constitutional restriction is imposed, the corporate existence and powers of counties, cities and towns are subject to the legislated control of the State creating them. The N.J. courts have restricted municipal power to exclude the passage of ordinances on matters of general public interest. Executive Order 11990 as signed by Jimmy Carter on 5/24/77, provides in part, Section 2. (a): "each agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands." This order makes wetlands a national issue for the EPA, which precludes Rockaway Township from dealing with a subject in need of uniform treatment. Furthermore, the passage of the ordinance denies the affected owners a federal right protected by 42 U.S.C, 2000d. Therefore, the violation of this statute also violates N.J.S.A,. 40:48-2: "Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and PAGE 22 ie by-laws not contrary to the laws of this state or of the U t { St t ” Consequently, this ordinance should be repealed in accordance with the following holding: "Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes." Summer v. Teaneck, 53 N.J. 548 (1969) This ordinance further violates section (a) of N.J.S.A. 40A:12-13, by violating the 14 th. Amendment: "Such restrictions or conditions shall be related to a law blic pur, E 40 CFR Ch. I § 35.925-13 has resulted in the RVRSA and its member communities violating their grant of power and the rights of its citizens as protected by 42 U.S.C. § 2000d. Thus the EPA violated the following holding: "HUD sanctioned the violation of plaintiff's rights and was an active participant since it could have halted the discrimination at any step of the program. Consequently, it's own discriminatory conduct. .. . is violative of 42 U.S.C. § 2000d." Hicks v. Weaver, 302 F.Supp. 619 (E.D.La.1969) PAGE 23 ARGUMENT 4 THE APPELLATE COURT ERRED BY SUBJECTING STATE LAW ISSUES TO THE NOTICE PROVISIONS OF TORT CLAIMS ACT To begin with, Judge Harper dismissed the state law issues for failure to file a timely tort claim, as evinced by his oral findings at the motion hearing of April 5, 1991: "Because I'm really troubled as to how you should be able to litigate this now after not following the tort claims procedure. I'm not talking now at this point on 1983 claims, but I'm talking about basically the other claims in the case that you have against the town." (T17-20) "You're asserting a tort claim as I see it and, and it's a claim very frankly that I think is, is barred, it's time barred, because you didn't give the requisite notice within the ninety day period. That notice came about Sive years after the sale," (T27-10) "as far as anything that has to do with fraud, he's he's time barred." (T30,6-8) "I think as a matter of law you're time barred an yway. Because of the nature of what you have. I think this, this transaction is something that is not subject to being a matter of suit unless you give the requisite notice and you haven't." (128, 17-22) The Appellate Court affirmed Judge Harper's view with the following from their opinion: PAGE 25 "While plaintiff argues that "[t]he issue before the court is a breach of contract not a tort claim," and cites cases for the proposition" that contract issues are not subject to the Tort Claims Act," . . . . .Tothe extent plaintiff relies on the tort claims because of the personal injury aspect of the federal claims, see Wilson y. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2D 254 (1985), no timely notice was given as required by statute. See N.J.S.A. 59:8-8, -9". The Appellate Court held that breach of contract is not a tort, but applied the notice provision, since it was a §1983 civil rights action. By so doing, they contravene the holding of Reid v. City of New York, 736 F.Supp. 21 (E.D.N.Y. 1990), which also involved a §1983 action but held that pendent state claims are subject tu the applicable state, not federal, limitations period. The Appellate Court cites Wilson v. Garcia, supra., which did not deal with pendent state claims and borrows the "most analogous" state statute of limitations. The case of Atlantic City Hospital v. Finkle, 110 N.J. Super. 435, 265 A.2d 853 (Co.1970) held that whether the six year statute on contracts or the two year statute on personal injury actions governs depends on nature of injury, not theory of recovi:ry. N.J.S.A, 40A:12-13, the statute that authorizes the sale of land, is violated by selling a lot that is “restricted pursuant to law." Consequently, the statutory restriction injures the land before this prohibition can prevent the sale, PAGE 26 and by proving such a restriction the sale of the lot could be stopped before it injures a buyer. If violated, it represents a state claim subject to a six year limitations period, while the passage of the resolution to knowingly sell such a lot constitutes a civil rights violation upon sale. A. breach of warranty in this case can only result from an injury to the land by the grantor, which also brings it under the six year limitations period in accordance with 2, Supra. As to the issue of fraud, the case of Hil] v. Middletown Bd. of Ed., 183 N.J. Super. 36 (A.D.1982) held : "Hence, even if there is no substantial compliance with the notice provisions of the Tort Claims Act, a public entity will be estopped from asserting this defense "where the interests of justice, morality and common fairness dictate that course."" It will be shown that the Appellate Court disregards case findings that show the respondent's concealment of the grant condition amounts to a fraud. PAGE 27 ARGUMENT 5 JUDGE RUSSELL DID NOT DISMISS THE CIVIL RIGHTS VIOLATION FOR FAILURE TO FILE WITHIN THE TWO YEAR LIMITATIONS PERIOD Judge Russell made the following finding at the conclusion of oral argument at the October 25, 1991 motion hearing on the Township's motion that the petitioner had filed beyond the two year statute of limitations: "The statute of limitations argument I can't address here first so if it had been dispositive of the matter, I would have addressed it first and then we would have to go after that, but he maintains he didn't have this knowledge until 1989 so that might not dispose of things, okay? So we can't look at it that way as being the threshold question so we move to the situation whether the sale is Such that you have a actionable claim. This is an as-is sale, marketable title. As far as I can see from the papers before me, it's a marketable title. The effect of the EPA sewer ban connection did not make it an unmarketable title." (177-9) Judge Russell found the petitioner made late discovery of a cause of action and recognized a material issue of fact existed for trial when she said: "But he didn't know, he thought it came on after he got the property." PAGE 29 Consequently, her dismissal of the civil rights claim based on "as is", a state law issue, is not an appropriate basis for dismissing a federal claim. The Appellate Court failed to see this and subsequently erred by stating that there was a dismissal based on the statute of limitations: "The trial court concluded that plaintiff's federal civil rights claim pursuant to 42 U.S.C.A. § 1983 was barred by New Jersey's two year statute of limitations." The Appellate Court may have been confused by Judge Russell's opinion on reconsideration, which refers to an amended complaint, not the one originally ruled on. The following excerpts are clear on this point: "(3) plaintiff seeks leave to file an Amended Complaint" "Moreover, even if plaintiff had stated a claim, from the facts as stated in the proposed Amended Complaint, all actions of which plaintiff complains occurred more than two years prior to the proposed Amended Complaint. Pursuant to Wilson vy. Garcia, 105 S.Ct. 1938 (1985)" The Appellate Court error and failure to catch Judge Russell's inappropriate dismissal required reversal and remand by the Supreme Court of N.J. PAGE 30 | ARGUMENT 6 JUDGE RUSSELL'S FINDING OF BELATED DISCOVERY MUST APPLY TO ALL LIMITATIONS ISSUES The petitioner was unaware that the Grant Condition went into effect in 1984, a year before the public auction. Beside concealing this fact, the Township also misrepresented the sewer lateral next to the property as the way to service both lots. Furthermore, the township engineer told the petitioner on December 2, 1986 that the Grant Condition went into effect recently, as evinced by the petitioner's affidavit. Township minutes show a councilman telling the petitioner in 1988 that the grant condition came after his purchase. The respondent has even admitted to concealing the grant condition. Lastly, a title search failed to uncover the grant condition. These facts were presented to Judge Russell in response to the respondent's motion to dismiss for failing to file a timely civil rights claim. They ended with the following from the transcript: "* it was in November of '89 when the Township issued the stop work order. The Court: up to this point, you still don't know about the EPA situation? Mr. Fernandez: No, when they issued the stop work order, I do not know, It was after the issuance of the stop work order which resulted in my checking PAGE 31 into everything and it was then three factors that I had to pull together in order to ascertain what the Town had done. (167-24) The following finding by Judge Russell at that motion hearing shows that the court accepted the late November discovery of a cause of action (T77, 9-17): "The statute of limitations argument I can't address here first so if it had been dispositive of the matter, I would have addressed it first and then we would have to go after that, but he maintains he didn't have this knowledge until 1989 so that might not dispose of things, okay?" This finding accepts the date of belated discovery of a cause of action in accordance with the following holding: "The rule therefore functions to modify the conventional statutory period but only to the extent of postponing the accrual of a cause of action until the plaintiff "learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action." Burd v w Jers Co., supra., 76 N.J. at 291. There can only be one date of late discovery for a cause of action from which the limitations period begins to run. Consequently, Judge Russell's finding displaces Judge Harper's earlier finding in accordance with Rule 4:42-2 which states in part: "any order or form of decision which adjudicates Sewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it PAGE 32 Shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interests of justice." The case of Johnson v. Cyklop Strapping Corp., 220 N.J.Super.250, 263-265 (App.Div.1987) held interlocutory orders are committed to the sound discretion of the court. There was an adequate factual basis in the summary judgment record of that case to support a finding that should have prevented partial summary judgment. In the matter, sub judice, the petitioner presented triable issues of material fact that were timely presented upon discovery. Palma v. Powers, 295 F.Supp. 924 (1969) held: "As noted earlier, issue preclusion generally applies only to those matters actually raised and adjudicated in an antecedent suit." This federal finding shows Judge Harper's ruling was still subject to change when Judge Russell made a finding that altered it. It's also consistent with the previous Appellate finding and court rules. Consequently, the Supreme Court should have been compelled to reverse and remand in accordance with the following finding: "A judgment entered by a court with jurisdiction of the subject matter and the parties is considered valid, even though erroneous or obtained by fraud. Until set aside in the court which rendered it or by a reviewing court exercising appellate jurisdiction, it is binding on the parties and their privies in all of the nation's PAGE 33 tribunals, federal or state." Palma vy. Powers, 295 F.Supp. 924 (1969) Judge Russell accepted late discovery as being in the latter part of Nov. of 1989 and the Tort Claim notice, if pertinent, was served on February 12, 1990, within ninety days. The petitioner's complaint was filed in December of 1990 and an amended complaint was filed on March 11, 1991, prior to the respondent's answer, all of which is well under two years. Even the amended complaint submitted to Judge Russell months before was timely on October 25, 1991, the date of the motion hearing. Therefore, there should have been no question as to the timeliness of the petitioner's claim and his right to a trial. PAGE 34 ARGUMENT 7 ROCKAWAY TOWNSHIP'S VIOLATION OF THE COVENANT AND N.JS.A. 46:4-6 By passing municipal land use ordinance §54-100 L, Rockaway Township violated federal and state statutes, as outlined in earlier arguments. This legislative act, as well as their approval of the grant condition, violated the covenant in their resolution for public auction, which reads as follows: "f) All conveyances shall be by bargain and sale deed with covenants against grantor's act. No affidavit of title will be provided." The covenant, as it appears in the deed given to the petitioner, reads as follows: "Promises by Grantor. The Grantor promises that the Grantor has done no act to encumber the property. This promise is called a "covenant as to grantor's acts" (N.J.S.A. 46:4-6). This promise means that the Grantor has not allowed anyone to obtain any legal rights which affect the property (such as by making a mortgage or allowing a judgment to be entered against the Grantor). Rockaway's promise as the Grantor carries the force of N.J.S.A, 46:4-6, which reads as follows: "A covenant by the grantor in a deed "that he has done nothing to encumber the said lands", shall have the same effect as if he covenanted that he had not done or executed, or knowingly suffered to be done or PAGE 35 executed, any act, deed or thing whereby the lands and premises conveyed, or intended so to be or any part thereof, are or will be changed, charged, altered, fected, defeated bored in tid otherwise." There is one finding that addresses the general scope of covenants, which held: "A covenant against incumbrances, if broken at all, is broken the instant the deed is given." Old Falls, Inc. vy. Johnson, 88 N.J. Super. 441, 450 (App. Div. 1965) The respondent violates this covenant by passing an ordinance that was beyond their authority, then by passing a resolution to further benefit by sale and taxation, despite the knowledge that they would prevent the development of the lot as a result of their ordinance and the Grant Condition. Rockaway Township's resolution for public sale also contained the following: "2. That the said sale will be in accordance with N.JuS.A. 40A:12-13 et seg. and in accordance with the following terms and conditions:" The lower court, Appellate and Supreme Courts of N.J. have failed to meet their obligation by not complying with the standard of review created by the following holding: "A specific provision integrated into the contract by force of a statute, as a matter of public policy, "must be interpreted and given effect in accordance with the intention of the legislature, irrespective of how the contractor's understood it. Exactly the same result is PAGE 36 reached even though the parties know nothing of the statute and do not include the provision, and even though they know of it and expressly agree upon the exact contrary.” Corbin on Contracts, section 551. See also Baker vy. Aetna Life Insurance Co., 264 N.Y. 150, 190 N.E. 327 (Ct. App. 1934); Jones vy. Preferred Accidental Insurance Co., 226 Wis. 423, 275 N.W. 897 (Sup.Ct. 1937); Board of School Commissioners Hahn, 246 Ala. 662, 22 So. 2d 91 (S. C. 1945). The respondent's failure to address the petitioner's allegation of a statutory violation and Judge Harper's failure to consider the violation falls short of this review requirement. Considering the motion hearing was not a trial, the court's findings on the fraud issue were premature and disregarded the requested tolling of the limitations period based on the municipal concealment of a material fact. French v. U.S. Fidelity & Guaranty Co., D.C., 88 F.Supp. 714 (1950) PAGE 37 ARGUMENT 8 THE APPELLATE COURT FAILS TO SEE THE FRAUD WHICH VITIATES AN "AS IS" CONTRACT The Appellate Court stated the following in their opinion, which quotes in part from the resolution for sale: "Particularly given plaintiff's acknowledgment of the "auction information" indicating that the property was sold "as is," and acknowledging the "terms and conditions" of the sale as embodied in the governing resolution in which the Township expressly made "[nJo representations of any kind... as to the condition" of the property, and making the sale the Townshi judgment, R. 2:11-3(e)(1)(A),(E)." The Appellate Court finds that acceptance of the terms of sale and "as is" are reasons for not disturbing the dismissal, though the lower court's dismissal for failing to timely file prohibits further findings based on the holdings of Sandler v. Lawn-A-Mat Chem & Equip. Corp., supra. Further findings only prejudice the petitioner on remand. By avoiding the violation of the covenant, the court below and Appellate Court avoided a material issue of fact which represents a breach of warranty subject to a six year PAGE 39 limitations period. The court below also avoided the other statutory violation with the following response to the petitioner's query on N.J.S.A, 40A:12-13: "The Court: I'm saying that the manner in which they sold it appears to be consistent with law." The use of the word "appears" clearly shows the court was uncertain. The violation of these statutes represents material issues of fact in dispute that needed to be tried for a review in accordance with the following holding: "A specific provision integrated into the contract by force of a statute, as a matter of public policy, "must be interpreted and given effect in accordance with the intention of the legislature, irrespective of how the contractor's understood it." Corbin on Contracts, section 551. See also Baker v. Aetna Life Insurance Co., 264 N.Y. 150, 190 N.E. 327 (Ct. App. 1934); Jones v. Preferred Accidental Insurance Co,, 226 Wis. 423, 275 N.W. 897 (Sup.Ct. 1937); Board of School Commissioners v. Hahn, 246 Ala. 662, 22 So. 2d 91 (S. C. 1945). Failing to make this review and faced with allegations of statutory violations that remained unanswered and a request for tolling the limitations period based on the council's deliberate concealment, the court should not have granted summary judgment and the Appellate Court should not have made additional findings based on the following: "On such a motion the court is not authorized to decide an issue of fact, but is to determine whether the PAGE 40 pleadings and record before the court creates an issue of fact to be tried." Ramsouer yv. Midland Valley R. Co., 44 F.Supp. 523. By avoiding these issues and making a finding, the court below and the Appellate Court avoided the following holding: "A bargain is illegal when its formation is prohibited by statute," see; Naseef v. Cord, Inc., 90 N.J.Super. 135, 142, (A.D.1966), affirmed 48 N.J. 317 (1966). ° If it was the Appellate Court's contention that an "as is" sale means accepting the grant condition and the municipal concealment of these facts, then consider the case of Redner v. City of New York, 278 N.Y.S.2d 51, 54, 53 Misc.2d 14,8 which defined "as is" to mean reasonable use, wear, tear and natural deterioration excepted. That case also reviewed the findings of other cases that do not require a purchaser, even from a municipality, to purchase property in such a condition that he may be involved in a lawsuit to remove an encroachment, even though he had knowledge of its existence at the time he bid at the auction, unless he expressly undertook to purchase subject to the easement or encroachment. Pryor v. City of Buffalo, 197 N.Y. 123, 90 N.E. 423; Fossume v. Regua, 113 N.E. 330; Clark vy. Riverhead Savings Bank, 1022 N.Y.S. 2d 808. The Appellate Court knew that the respondent purposely concealed the grant condition based on their opinion: PAGE 41 "he cites no authority for the proposition that "the Township would have a duty to disclose the condition to every buyer" in essence, that before the sale a municipality must affirmatively disclose all facts which can be disclosed by appropriate searches and inquiries of government agencies." N.JLS.A. 40A:12-13 goes beyond disclosure; it prohibits the sale of lots "restricted pursuant to law", as does the following Supreme Court holding: "Property which is held by these corporations upon conditions or terms in a grant and for a special use, may not be diverted by the legislature." Worchester vy. Street Railway Co., 196 U.S. at 551, 1904 63 C.J.S. § 968 a. on Municipal Corporations sale of land requires: (5 )_ Good faith and freedom from fraud......(6) Municipal i 7” However, the Appellate Court relies on the following clause: [n]Jo representations of any kind . as to the condition". The Appellate Court had previously held: "We hold that an exculpatory clause may expressly excuse or limit liability for negligent contract performance, but that such a clause does not operate to bar a claim of willful and wanton misconduct." Tessler_ & Sons, Inc, v. Sonitrol Sec, Systems, 203 N.J.Super. 477 (A.D.1985). During Weintraub v. Krobatsch, 64 N.J. at 455, the Supreme Court reviewed findings from California cases as it PAGE 42 icc applies to fraud in real estate sales, then cited and accepted the following finding: "not only on the basis of positive misstatements and misrepresentations of facts allegedly made by Dolman, but also the alleged suppression and nondisclosure of facts known to him, and unknown and unobservable by plaintiffs. 33 Cal.Rptr. at 667" This finding separates a positive misrepresentation, which applies to the Township's presenting the sewer lateral as the means of servicing the lots, from a suppression or nondisclosure, by concealing the EPA grant condition. This distinction between positive misrepresentations and nondisclosure of a known fact is affirmed in the foilowing: "(T]he elements necessary to prove fraudulent concealment on the part of a seller in a real estate action are the concealment or nondisclosure by the seller of a material fact" ) Jerse bien r Corp., 94 N.J. 473, 468 A.2d 150 (1983). The Appellate and Supreme Courts of N.J. avoid their own findings on several issues related to fraud by accepting an exculpatory clause, taking a technical view of it, and by avoiding previous holdings on fraud. They put a municipal fraud above the law and condone the concealment of a material fact that affects purchase. The result of such a review offends substantive due process. If it is the Appellate Court's contention that "as is" meant acceptance of these deficiencies despite a fraud, the PAGE 43 following cases found that fraud will vitiate "As Is" contract. Packard-Dallas, Inc. v. Carle, Tex.Civ.App., 163 S.W.2d 735, 737; New England Foundation Co, y,. Elliot A. Watrous, Inc., 27 N.E. 2d. 756, 759, 306 Mass. 177. The Appellate Court's finding violates the Fourteenth Amendment and the following well stated finding, which is still appropriate today: "We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are, "No State shall make or enforce a law which shall abridge the privilege or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws." They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken, A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it." Ex Parte Virginia, 100 U.S. 339, (1879). (Emphasis Added) PAGE 44 ARGUMENT 9 TOWNSHIP ATTORNEY ACTED AS AN ADVOCATE-WITNESS AND RISKS A FRAUD UPON THE COURT Mr. Bell, the attorney for the respondent, violated RPC 3.7 by asserting the following as an advocate-witness in his statement of facts to Judge Harper: "The Township of Rockaway was prepared to grant an endorsement of his request when said restriction oy pera ry , ay the Municipal Engineer" (emphasis added). This statement of personal knowledge meets the judicial expressions upon the subject in Schwartz v. Wenger, 267 Minn. 40, 43-44, 124, N.W. 2d 489, 492 (Sup. Ct. 1963), and in Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 499, 141 A. 866, 869 (Sup.Ct.Err.1968). The court in the latter case held: (Opinion # 233, 254/Ethics) "The great weight of authority in this country holds that the attorney who acts as counsel and witness, in behalf of his client, in the same cause on a material matter, not of a merely formal character, and not in an emergency, but having knowledge that he would be required to be a witness in ample time to have secured other counsel and given up his service in the case, violates a highly important provision of the Code of Ethics and a rule of professional conduct, but does not commit a legal error in so testifying, as_a result of PAGE 45 Mr. Bell created the impression that the Council was unaware of the grant condition until he brought this fact to their attention. He then states the contrary in a_ brief to Judge Russell: (DB319) "Mr. Fernandes admits, by his own affidavit, that he knew of the EPA Grant Condition ( and _the Township's concealment of same and decision to sell despite it )." By admitting that the council deliberately concealed the Grant Condition, he admits his misstatement and the town's concealment. Had the court not dismissed these issues, he and the engineer would have testified to a fact that he subsequently recants. Mr. Bell's actions meet the following finding, which resulted in a new trial: "even if the lawyer has no duty to disclose the whole truth, he does have a duty not to deceive the trier of fact, an obligation not to hide the real facts behind a facade." ri y rior C oles 393 F.Supp. 1061 (1975) Mr. Bell admits the truth to Judge Russell in order to make it appear the petitioner's case is beyond the statute of limitations for the federal claims. However, Judge Russell didn't accept this contention, based on the following finding: "But he didn't know, he thought it came on after he got the property." Mr. Bell's retort confirms the Council's presale knowledge, PAGE 46 "That doesn't mean we didn't." (T71) The case of General Mill Supply Co. v. SCA Services, Inc., 697 F2d. 704, 716 (1982) found motions to be part of the trial when reviewing an advocate-witness case: "Under the Fed.R.Civ.P. the ultimate "trial" is connected as a seamless web to the ascertainment of issues at pretrial proceedings, and particularly to the discovery depositions. . . . . The most acute evils we would foresee from failure to enforce the canon in this instance would occur in the pretrial period, the one in which the most time and money is consumed in civil cases." This case also concluded that the court should sua sponte raise ethical problems involving danger to a just, speedy and inexpensive remedy . . . but the court did not. Mr. Bell was required by the N.J. code of ethics to withdraw from the case . . but he did not. The petitioner, being a pro se litigant unaware of this ethical responsibility, should be entitled to a trial in conformance with the findings in Erwin M. Jennings Co. v. DiGenova, supra. In view of Mr. Bell's admission that the Town Council deliberately concealed the grant condition, the Appellate Court should have disregarded Judge Harper's finding: "as far as anything that has to do with fraud, he's he's time barred." (1T30,6-8) PAGE 47 The engineer's involvement in this admitted deception puts the township's credibility into serious question which should have resulted in estoppel, in accordance with: "Hence, even if there is no substantial compliance with the notice provisions of the Tort Claims Act, a public entity will be estopped from asserting this defense "where the interests of justice, morality and common fairness dictate that course."" Hill vy. Middletown Bd. of Ed., 183 N.J. Super. 36 (A.D.1982) United States v. Pranth, 764 F.2d 548 (1985) also found the advocate-witness rule to be a fundamental tenet: "The advocate-witness rule prohibits an attorney from : both : ntl Same litigation. This venerable rule is a necessary corollary to the more fundamental tenet of our adversarial system that juries are to ground their decisions on facts of a case and not on the credibility of advocates. Accordingly, adherence to _ this time-honored rule is more than just an ethical obligation of individual counsel; enforcement of the rule is a matter of institutional concern implicating the basic foundation of our system of justice." The following Supreme Court finding recognizes the inherent risk associated with a prosecutor's assertions of personal knowledge during a trial. Those risks are not lessened by a municipal attorney's statements of personal knowledge to a motions judge, especially when he subsequently admits those statements were false: PAGE 48 "Nonetheless, the Supreme Court has admonished that "improper suggestions, insinuations, and, especially assertions of personal knowledge are apt to carry much weight against the accused when they Should properly carry none." Berger y. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935) I submit to this Court that the failure to respond or act to the above conduct is a finding. The Court's failure to refer the matter for further investigation in accordance with the findings of Crispin v. Volkswagenwerk, A.G., 96 N.J. 366 (1984) appears to condone the attorney's conduct, which may lead to further abuses of this nature. An investigation would have eliminated that impression. PAGE 49 ARGUMENT. 10 AN ISSUE OF FACT WAS DECIDED AT THE SUMMARY JUDGMENT HEARING Judge Harper decided as follows though faced with allegations of concealment, fraud and violations of statute versus the attorney's statement that the Town Council was unaware of the Grant Condition: "I'm comfortable in finding that even if the complaint weren't time barred, that there's no substance whatsoever to the fraud count because the Sale went in accordance with the resolution and even though he might have been told and he may say he's been led into a false sense of security about what he was told, that doesn't rise to the level of a, of a violation of the terms of sale. It doesn't in my mind rise to the level of a, of a, of a fraud." When asked if the respondent violated N.J.S.A. 40A:12-13, the judge's response shows he was uncertain: "The Court: I'm saying that the manner in which they sold it appears to be consistent with law." Since the resolution states the sale conforms to statute, how can the judge be certain the sale went according to the resolution without reviewing the statute? Now that it appears the attorney's statement was aimed at achieving a dismissal, it shows the judge's decision was hasty and contravenes the following on summary judgment. "On such a motion the court is not authorized to decide an issue of fact, but is to determine whether the PAGE 51 pleadings and record before the court creates an issue of fact to be tried." Ramsouer yv. Midland Valley R. Co., 44 F.Supp. 523 at 526. Judge Russell decided that the EPA sewer ban did not make the title unmarketable. This decision of a material fact not at issue is not sufficient to dismiss a federal claim: "This is an as-is sale, marketable title. As far as I can see from the papers before me, it's a marketable title. make it an unmarketable title." Consequently, these decisions violated the following: "proceed with care in order that this procedure be not perverted to the trial of disputed questions of fact upon affidavits.” .Ramsouer v. Midland Valley R. Co, supra. The Appellate Court has also violated this principle by affirming the dismissals, then by making further findings based on the summary judgment record. The summary judgment proceeding is to determine if an issue of fact exists for trial, not for the presentation of all the facts as though it were the trial. Therefore, further findings from that record deny the petitioner substantive due process. PAGE 52 ARGUMENT 11 THE COURT DISMISSED STATE LAW ISSUES AFTER RECOGNIZING A MATERIAL ISSUE OF FACT EXISTED The following shows that Judge Harper recognized that a material issue of fact existed that prevented a decision on the summary judgment motion. "You're saying that there's some statement in the Township engineer's certification that is factually inaccurate, is that correct? THE PLAINTIFF: Yes. * *THE COURT: Okay. What I'm going to suggest is this, that I, I, I, can't hear them or, and determine anything today based on that.*" (T20-21) Despite this finding Judge Harper dismissed the state law issues, which contravenes the following: “proceed with care in order that this procedure be not perverted to the trial of disputed questions of fact upon affidavits." .Ramsouer v. Midland Valley R. Co, 44 F.Supp. 523 at 526. PAGE 53 ARGUMENT 12 THE RESPONDENT'S ACTIONS AMOUNTS TO A TAKING Rockaway's land use ordinance §54-100 L and the EPA grant condition represents a taking which offends the 14 th. Amendment. And by deliberately passing a resolution to knowingly sell a lot that violates the 14 th. Amendment, the township violates 42 U.S.C, §1983. The chain of events leading to the Township's violation begins with the EPA. They directly impose on municipalities a policing function which is confiscatory in nature. They do so not by virtue of any authority over municipalities, but rather by a contractual condition that requires the RVRSA and its municipal members to take a benefit protected by a federal statute. By doing so, the EPA trespassed limitations in the recipient's ability to contract and police power, which in turn violates the following: "The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative or judicial. Such enforcement is no invasion of State Sovereignty. " Ex parte Virginia, 100 U.S. 339 (Oct. 1879) PAGE 55 When faced with a national policy outlined in Executive Order 11990, the EPA reacted with an interpretation of a regulation that allows them to restrict sewer hook-up, though it appears aimed at the properties of the recipient, not the public. By interpreting it as giving the recipient authority over private property, the EPA interferes with state judicial findings that restrict municipal powers in the area and the prohibition in the 14 th. Amendment. The EPA's action disregards the following holding from City of Scotsbluff_v. Winters Creek Canal Co., 53 N.W.2d 543: "x * * The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a Shorter cut than the constitutional way of paying jor the change." The respondent grasped the federal principle and took it a step further. They not only deny access to the sewer system, they also sell these lots, upon reversion for nonpayment of taxes, by concealing the condition in order to profit from its sale and continued taxation. They then by ordinance stop the new owner from developing the lots, which creates a cycle that profits from the continued resale of such lots. This exercise of power is contrary to state judicial holdings and the following holding from Chicago, PAGE 56 B_& QO. RR. Co, vy. State, 47 Neb. 549, 66 N.W. 624, 630, 41 L.R.A. 481, 53 Am.St.Rep. 557: "It will not, of course, be contended that the power of the legislature is in that respect absolute, or that it may at will impose upon property burdens so unreasonable as to work a practical confiscation. There is, as all admit, a limit beyond which it cannot go, and within which it will be confined by the judicial power of the state." The EPA Grant Condition imposes a servitude upon lots with wetlands for a period of fifty years, and the township ordinance was legislated in support of that Condition, which cannot be considered incidental. The EPA also denies a right protected by a federal statute as a means of achievinga . . confiscation. In the final analysis, the municipal land use ordinance and the underlying EPA Grant Condition meet the following holding which shows their actions represent a taking: "Before there can be a taking a servitude must have been imposed upon the land, that is to say, a subjection of the land for a more or less definite time to a use inconsistent with the rights of the owner." No. Counties Hydro-Electric Co, v. United States, 70 F.Supp. 900, Peabody v. United States, 231 U.S. 530, 34 S.CT. 159, 58 L.Ed. 351. The municipal land use ordinance prevents construction by denying hookup to lots known to be in the wetlands. However, the township continues to profit from taxation of the lots, thereby meeting the following finding on taking: PAGE 57 "by reason of inability to meet the requirements of the zone in which it is situate, is practically unusable, yet remains subject to the burden of taxation." AMG Associates v. Tp. of Springfield, 65 N.J. at 112 (1974), Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928). The respondent embeds the restriction among other conditions to disguise its transfer to the buyer, so it would appear that the buyer accepted this condition, though this condition prevents the sale according to statute. Their knowledge of the condition while attempting to foist it upon the public is proof of their deliberate efforts to sell a lot so diminished in rights that it represents a taking: "h) This sale is made subject to such facts as an accurate survey may disclose, existing tenancies, rights of persons in possession, zoning ordinance, easements, existing conditions, covenants and restrictions, codes and ordinances of the applicable municipalities, County of Morris, State of New Jersey, and the United States. of America." PAGE 58 CONCLUSION For the foregoing reasons the petitioner, Nelson A. Fernandes, respectfully requests that a writ of certiorari be granted so the judgment of the New Jersey Supreme Court may be reviewed and reversed. In view of the state court's expressed displeasure with these issues and the distinct possibility that a remand is required, the petitioner asks this Court to address whatever issues it is empowered to hear. The petitioner fears that the Appellate Court's position on the statutory violation will result in a repetition, unless this Court is able to provide clarification on the federal issues. Respectfully submitted’ Nelson A. Fernandes - Pro se 9 Fox Run Denville, New Jersey 07834 (201) 627 - 2138 PAGE 59 FILED MAY 13, 1993 SUPREME COURT OF NEW JERSEY M-1104 September Term 1992 NELSON FERNANDES. Plaintiff-Movant, V. ROCKAWAY TOWNSHIP TOWN COUNCIL, et al., Defendants. This matter having been duly presented to the Court, it is ORDERED that the motion for reconsideration is denied. WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at Trenton, 11th day of May, 1993. STEPHEN TOWNSEND CLERK OF THE SUPREME COURT certification of true copy PAGE 6] FILED MARCH 17, 1993 SUPREME COURT OF NEW JERSEY C-682 September Term 1992 36,376 NELSON FERNANDES, Plaintiff-Petitioner, V. ROCKAWAY TOWNSHIP TOWN COUNCIL, et al., Defendants-Respondents. To the Appellate Division, Superior Court: A petition for certification of the judgment in A-4311-91 having been submitted to this Court, and the Court having considered the same; It is ORDERED that the petition for certification is denied with costs. WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at Trenton, 15th day of March, 1993. STEPHEN TOWNSEND CLERK OF THE SUPREME COURT certification of true copy PAGE 62 FILED JAN. 22, 1993 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION A- 4311-91T2 NELSON FERNANDES, Plaintiff-Appellent, V. Rockaway Township Town Council AND Township Engineer, Defendant-Respondants. Argued December 9, 1992 - Decided Jan. 22, 1993 Before Judges Gaulkin and Stern. On appeal from the Superior Court of New Jersey, Law Division, Morris County. Nelson Fernandes, pro se, argued the cause for appellant. Joseph Bell argued the cause for respondent's (Dorsey & Fisher, attorney) John H. Dorsey on the brief. PER CURIAM Plaintiff appeals from a judgment dismissing his complaint which sought rescission and damages from defendants following conveyance by the Township of Rocakaway of a lot purchased by plaintiff at public auction. Plaintiff planned to build a residence on the property and on an adjoining lot which he subsequently purchased. His plans PAGE 63 were frustrated because of a sewer ban imposed by the United states Environmental Protection Agency (EPA). Plaintiff claims that defendants’ conduct in selling the lot and thereafter, in the circumstances when the "Township did conceal the existence of the EPA Grant Condition," the engineer "covered up this concealment" and the Township created "a false impression that the lots could be connected to the sewer" (even after "[p]ercolation test results . show[ed] these lots violated his federal constitutional and civil rights and various provisions of state law. Particularly given plaintiff's acknowledgment of the "auction information" indicating that the property was sold "as is," and acknowledging the "terms and conditions" of the sale as embodied in the governing resolution in which the Township expressly made "[n]o representations of any kind . . . aS to the condition" of the property, and making the sale disturbing the judgment. R. 2:11-3(e)(1)(A),(E). In light of those provisions, we see no basis for the breach of contract claims advanced by the plaintiff. While plaintiff argues that "(t]he issue before the court is a breach of contract not a tort claim," and cites cases for the PAGE 64 proposition "that contract issues are not subject to the Tort Claims Act,"_he cites no authority for the proposition that : y ie to every buyer" in essence, that before the sale a id blic his ; —— i; and we are referred to no authority in statute or case law so nidinn. © laintiff hat NJS 40A:12- om ~ To the extent plaintiff relies on the tort claims because of the personal injury aspect of the federal claims, see Wilson v. Garcia, 471 ULS. 261, 105 S.Ct. 1938, 85 L.Ed.2D 254 (1985), no timely notice was given as required by statute. See N.LS.A, 59:8-8, -9. Wilson v. Garcia, supra; N.J.S.A. 2A:14-2. Plaintiff does not contest the applicable period but contends that defendant's waived the statute of limitations because they failed to raise PAGE 65 the defense in their pleadings. However, the Supreme Court has recognized that the statute of limitations is not waived for failure to plead it as an affirmative defense when it is later raised, as heres. in defendant's motion for summary judgment. Fees v. Trow, 105 N.J. 330, 335 (1987); Rappeport v. Flitcroft, 90 N.J. Super. 578, 579-81 (App. Div. 1966). We also conclude that any procedural defects noted by the plaintiff, even if they constituted error, cannot be said to have affected the result. Finally, as plaintiff was not a "prevailing party" he was not entitled to the award of counsel fees or costs. See 42 U.S.C.A. § 1983, 1988; N.J.S.A. 2A:15-59.1. See also R. 4:42-8, -9 (a) (9); N.J.S.A. 22A:2-5. The Judgment is affirmed. PAGE 66 FILED MAY 27, 1992 NELSON FERNANDES, : SUPERIOR CT OF N.J. Plaintiff, LAW DIV.- MORRIS CNTY V. Township of Rockaway, a : DOCK. NO. MRS-L-5845-90 Municipal Corp. of the Civil Action State of New Jersey : ORDER Defendant. THIS MATTER having come before the Court on the Motion of Plaintiff for reconsideration, and the Court having considered the submissions of both parties, [tis on this 27 th. day of March, 1992 ORDERED, that reconsideration is denied for the reasons set forth in the attached opinion. Karen D. Russell, J.S.C. PAGE 67 The are four aspects to plaintiff's most recent motion for reconsideration; namely, (1) plaintiff seeks to vacate the July 10, 1991 Order entered by Hon. John J. Harper dismissing Counts 1, 3, 4, 5, 7, 8, 9, 10 and 11 of the plaintiffs Complaint, (2) plaintiff seeks to vacate the January 2, 1992 Order entered by this Court dismissing Counts 2 and 6 of plaintiff's Complaint, (3) plaintiff seeks leave to file an Amended Complaint, and (4) plaintiff seeks an Order that the matter be tried by a jury, rather than non-jury as requested by defendant. The first issue dealt with an Order entered by Judge Harper, thus the motion papers were forwarded to his attention. He declined to take any action and returned the papers to this Court. A review of the file of the County Clerk indicates that the July 10, 1991 resulted from motions argued and decided on the record by Judge Harper on April 5, 1991. A dispute ensued over the form of Order to be entered. Plaintiff moved for reconsideration, which was argued and denied on the record by Judge Harper on May 31, 1991. The Orders reflecting the decisions of April 5, 1991 and May 31, 1991 were both signed and filed July, 10, 1991 (attached hereto). In response to correspondence from the plaintiff, Judge Harper wrote August 2, 1991 to reiterate that he stood by his decision as set forth on the record. The PAGE 68 aut lia ites, 56ers motion by plaintiff argued before this Court reconsideration the decision of Judge Harper, who was at the time unavailable due to temporary assignment to Essex County. This Court had no authority to review the decision of Judge Harper and thus refused to do so. Reconsideration of that refusal is denied. As to the second issue, which was argued before and decided by this Court, the Ferreira decision is applicable, and the Court agrees with the arguments earlier advanced by the defendant Township that the EPA violation occurred upon sale to plaintiff. Plaintiff Fernandez herein received marketable title, even if it is not fully utilizable without installation of an above-ground ISDS, thus no unconstitutional "taking" occurred. Reconsideration is denied. As to the third issue, reconsideration of the denial of leave to file an amended complaint is denied. The proposed First Count advances a cause of action which was previously dismissed by Judge Harper. The proposed Second Count asserts a cause of action premised on 42 U.S.C.A. Section 1983. As Judge Barry ruled in the November 29, 1992 Order of the District Court dismissing plaintiff's Amended Complaint, "plaintiff has failed to adequately state a claim ; PAGE 69 for a violation of his federal constitutional rights." Plaintiff fails to plead a cause of action under section 1983. Moreover, even if plaintiff had stated a claim, from the facts as stated in the proposed Amended Complaint, al! actions of which plaintiff complains occurred more than two years prior to the proposed Amended Complaint. Pursuant to Wilson v. Garcia, 105 S.Ct. 1938 (1985) for claims under section 1983, the applicable statute of limitations is the New Jersey two-year limitations for actions for personal injury. N.J.S.A. 2A:14-2. Thus, if plaintiff were able to state a claim under Section 1983, that claim would be barred as beyond the applicable statute of limitations. Inasmuch as proposed Counts Three through Eight state claims under the New Jersey Tort Claims Act or 42 U.S.C.A. Section 1983, plaintiff may not assert them in an amended Complaint. These claims are all either previously dismissed by Judge Harper, barred by the notice provisions of the New Jersey Tort Claims Act, or beyond the two-year statute of limitations applicable to Section 1983. In addition, the proposed Fifth and Sixth Counts fail to state a claim in that they are vague and conclusory. And lastly, Count Eight does not state a "taking" claim. As Judge Barry ruled, plaintiff "has certainly not been deprived of all use of his property, see, Bello v. Walker, 840 F.2d 1124, 1131 (3rd. Cir. 1988), PAGE 70 and thus, even if articulately stated, this claim would be dismissed as well." In light of the foregoing, plaintiff's application for leave to file a proposed Amended Complaint was denied. The fourth issue is moot since the July 10, 1991 Order of Judge Harper in fact granted plaintiff's request that the matter proceed by trial by jury. PAGE 7] FILED JAN. 3, 1992 Dorsey and Bell, P.O. Box 228 Boonton, N.J. 07005 (201) 334-1900 NELSON FERNANDES, : SUPERIOR CT OF N.J. Plaintiff, LAW DIV.- MORRIS CNTY V. : DOCKET NO. MRS-L-5845-90 Rockaway Township Town Council, and Township : Civil Action Engineer, ORDER Defendant. THIS MATTER having come before the Court for a hearing on April 5, 1991 on the motion of plaintiff requesting an Order for Partial Summary Judgment as well as Cross-Motions filed by the defendant and the matter having been fully submitted and heard and this matter again being considered by the Court by a motion filed by the plaintiff for reconsideration on March 31, 1991; and THIS MATTER having come before this Court for a hearing on April 25, 1991. on the motion of defendant requesting an Order for Dismissal for Counts 2 and 6, the remaining counts of plaintiffs Complaint and the matter having been fully submitted and heard; IT IS HEREBY ORDERED on this 2 nd. day of January, 1992 as follows: PAGE 72 1. The defendant's motion requesting the Court to strike and dismiss the remaining counts of plaintiff's original counts to wit: Count 2 and 6 is hereby granted. Karen D. Russell, J.S.C. PAGE 73 FILED JULY 10, 1991 NELSON FERNANDES, >: SUPERIOR CT OF N.J. Plaintiff, LAW DIV.- MORRIS CNTY V. . &? DOCK NO. MRS-L-5845-90 Township of Rockaway, a Municipal Corp. of the : Civil Action State of New Jersey ORDER ON Defendant. : RECONSIDERATION - THIS MATTER having come before the Court for a hearing on April 5, 1991 on the Motion of Plaintiff requesting an Order for Partial Summary Judgment as well as Cross-Motions filed by the defendant and the matter having been fully submitted and heard; and THIS MATTER again being reconsidered by the court on a Motion filed by the Plaintiff for reconsideration on May 11, 1991; and THE COURT having again considered the papers submitted as well as arguments of counsel and for good cause shown; It is hereby ordered this 10 th. day of July, 1991 as follows: PAGE 74 sivaneninalh, WekiaiiSioute adie 1. The Plaintiff's Motion requesting an Order for Partial Summary Judgment is hereby denied. 2. The Defendant's Cross-Motion requesting the Court to strike and dismiss Counts 1, 3, 4, 5, 7, 8, 9, 10, and 11 of Plaintiff's Complaint is hereby granted. 3. The Plaintiff is permitted to litigate Counts 2 and 6 of his Complaint asserting that his United States and New Jersey Constitutional Rights have been violated pursuant to 42 U.S.C. Subsection 1983. 4. Discovery in this matter is continuing, however, the discovery conducted pursuant to the initial Federal Court Action can be used in the New Jersey Superior Court action. Videotaped depositions may be conducted as part of the discovery process. 5. The Plaintiff's request for a trial by jury is hereby granted. John J. Harper, J.S.C. PAGE 75 AMENDMENT V OF THE CONSTITUTION: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in the time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." AMENDMENT XIV OF THE CONSTITUTION "Section 1. All persons born or naturalized in the United States , and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." PAGE 77 U.S.C. 2000D. Prohibition against exclusion from participation in, denial of benefits of, and discrimination under Federally assisted programs on grounds of race, color, or national origin. No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. PAGE 78 U.S.C. 42 § 4331 Congressional declaration of national environmental policy "(a) The Congress, recognizing the profound impact of man's activity on the interactions of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local 1 of bli sad organizations, to use all practicable means and measures, including financial and technical assistance , in a manner calculated to foster and promote the general welfare , to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." PAGE 79 40 CFR CH. I (7-1-88) Subpart F - What Other Federal Requirements Must I Comply With? You must comply with all applicable Federal Laws. (e) Civil Rights Act. You must comply with section 602, Title VI of the Civil Rights / F 1964, (42 U.S.C. 20004), and related nondiscrimination laws and Executive Order 11246. These authorities prohibit you from excluding f ‘icipati benefits of, or discriminating against them on the basis of race, color, or national origin under any program or activity involving Federal financial assistance, sec. 40 CFR Parts 7 and 8 for specific requirements. PAGE 80 40 CFR CH. I (7-1-88) $6.302 Wetlands, floodplains, important farmlands, coastal zones, wild and scenic rivers, fish, and wildlife, and endangered species. The following procedures shall apply to EPA administrative actions in programs to which the pertinent statute or executive order applies. (a) Wetlands protection, Executive Order 11990, Protection of Wetlands, requires Federal agencies conducting certain activities to avoid, to the extent possible, the adverse impacts associated with the destruction or loss of wetlands and to avoid support of new construction in wetlands if a practical alternative exists. EPA's Statement of Procedures on Floodplain Management and Wetlands Protection (dated January 5, 1979, incorporated as Appendix A hereto) requires EPA programs to determine if proposed action exists. (emphasis added) PAGE 81 40 CFR Ch. I (7-1-85 Edition) § 35.925-13 Sewage Collection System. (e) The system would not provide capacity for new habitations or other establishments to be located on environmentally sensitive land such as wetlands, floodplains or prime agricultural lands. Appropriate and effective grant conditions, (e.g. restricting sewer hookup) should be used where necessary to protect these resources from new development. Executive Order 11990 as signed by Jimmy Carter on 5/24/77, which provides in part, Section 2. (a): "each agency, to the extent permitted by law, shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) ep ey ‘cable al ; 1 (2) that 1 pom ‘cabl . a lands whicl from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors." (emphasis added) PAGE 82 eae (The following grant condition imposed by the EPA, represents a violation of federal statute and regulation by both the EPA and the RVRSA, as well as, its member communities that legislated land use ordinances in support of this grant condition) Assistance I.D. No. C340389-04 amendment no. 1 (4.b.) " The grantee agrees that for a period of 50 years from November 29, 1983, no sewer hookup or other connection to the sewage treatment facilities included in the scope of this grant will be allowed or permitted so as to allow the discharge of wastewater from any building, facility or other construction on any parcel of land, as delineated on the maps cited in (a) above, that is within any wetlands or within the 100 year floodplain, which land parcel as of November 29, 1983 was undeveloped (i.e., upon which no building, facility or other construction has been erected or placed) unless approved in writing by the Regional Administrator." (emphasis added) PAGE 83 (4.c.) "This condition is intended to benefit any persons or private organization or government entity which may have an interest in the avoidance of any future development in the designated areas. Any such beneficiary (who may otherwise have standing to seek enforcement and the right to begin such action in a court of competent jurisdiction) may seek to enforce compliance with this condition in the courts of the State of New Jersey against the Grantee or any nonfederal person, organization, or entity subject to this condition if notice of intent to seek such enforcement is first given to the EPA Regional Administrator, the NJDEP, the Grantee and affected governmental entities and if none of those so noticed initiates corrective action within ninety days of such notice." 63 C.J.S. on Municipal Corporations § 968 a. —— sa Sy ee | be} ‘al: (5) Good faith and freed ay er 6) Municipal i; m PAGE 84 N.JuS.A. 40A:12-13. Sales of real property. "Any county or municipality may sell any real property, capital improvement or personal property, or interests therein, not needed for public use, as set forth in the resolution or ordinance authorizing the sale, other than county or municipal lands, real property otherwise dedicated or restricted pursuant to law, and, except as otherwise provided by law, all such sales shall be made by one of the following methods:" (emphasis added) N.JuS.A. 404:12-13 (a) "Such restrictions or conditions shall be related to a lawful public purpose and encourage and promote fair and competitive bidding " PAGE 85 N.JuS.A. 40:48-2 "Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law." (emphasis added) N.JLS.A. 46:4-6 "A covenant by the grantor in a deed "that he has done nothing to encumber the said lands", shall have the same estate or otherwise." (emphasis added) PAGE 86 N.J.S.A. 54:5-43. If sale set aside: tax refund to purchaser. If the assessment itself is valid and the tax, assessment or other municipal charge, or any part thereof, is justly due, no sale shall be set aside, except on condition that the amount due shall be paid to the municipality for the use of the holder of the certificate of sale by the person applying to set it aside. If the sale shall be set aside, the municipality shall refund to the purchaser the price paid by him on the sale, with lawful interest, upon his signing to the municipality the certificate of sale and all his interest in the tax assessment or other charges and in the municipal lien therefor, and the municipality may readvertise and sell if the municipal lien remains in force. PAGE 87 $54-1 00. ROCKAWAY'S LAND USE ORDINANCE "No land : ren structure may be erected, razed, moved, extended, enlarged, altered or used for any purpose unless and iL all cx f thi lied with:" §54-100 L. "Wetlands. The connection of any structure, to the Rocl Valley Besienal 9 \uthorit ) —— - ends j hibited unless a waiver is granted by said Authority. For the purpose of administering this provision wetlands are delineated on a set of municipal tax maps available for inspection at the office of the Township Engineer. Any lands designated as wetlands may be counted as part of a tract acreage for the purpose of computing the maximum density permitted in the zone in which it is located." PAGE 88 | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1158%3A1. Public record. Not legal advice.