Concerned Citizens for Sewell Tract Preservation

Mayor-elect Zack Mullock recently posted on Facebook an “update” on Sewell Tract. Honestly, I wish that Mr. Mullock would look forward instead of trying to re-write history so I didn’t have to follow up his postings like a clean-up squad. This response addresses the many errors and misstatements in that posting.:

Jim Testa

“Reaching Out”

“Several weeks ago, I personally offered to brief Mr. Mullock on the latest developments about the Sewell Tract litigation but instead elected to have the entire Council updated as a body. Information was prepared by Concerned Citizens and reviewed by the City Solicitor with Council on November 16^th. All members of the Council and the solicitor can confirm that.  In all time up to now, while we have “reached out” to the City and have been in authorized contact with the other two parties, i.e. Sewell Tract owner, East Cape May Associates, and the state DEP, I have no recollection of Mr. Mullock ever having “reached out” to Concerned Citizens.  It would be nice, and it would be appreciated, but so far it has not happened.

 

Contacts with Litigating Parties

The contacts Mr. Mullock has had with the other two parties were both unauthorized and unhelpful. Among the five-person Council, no single member has been authorized on behalf of the City to “reach out” individually to any of the parties in the litigation. In fact, that kind of behavior is both rare and potentially disruptive. Even so, we are aware of occasions during 2020 when Mr. Mullock has made personal contact, particularly with the DEP, the party with the most adverse position to the City, to have a dialog on the case for purposes and with content that has not been revealed to us. Mr. Mullock was never authorized to put out such feelers and in fact, was remonstrated for doing so.  Finally, his most recent contact with the deputy attorney general representing the DEP had to be rebuffed by that official to make the point that Mr. Mullock was simply not authorized to receive confidential information about, or participate in, settlement discussions. We were left with the impression that the state viewed Mr. Mullock’s wayward contacts as not contributing to the settlement process.

Opposition to Concerned Citizens Had No Impact on the Litigation.

Mr. Mullock’s persistent opposition to assisting Concerned Citizens with funding (and refusing to let the City cooperate with us) as we requested last December had absolutely nothing to do with “forcing” Concerned Citizens to seek to settle the Sewell Tract lawsuit. In fact, as we wrote Council in February, the City’s gridlock over helping us out financially (resulting from stalemates forced by Mr. Mullock and Council member Sheehan) was met by a large upsurge in funding from our private donors. Their new donations more than enabled us to litigate the case we were preparing if it were to come to trial.  When we disengaged from the City on funding, Concerned Citizens was not headed by the Deputy Mayor’s husband, and our cooperation offers (consistently rejected by Mr. Mullock) always included mechanisms by which the City would participate in the control of the lawsuit.

 Perceptions About Conducting the Sewell Tract Litigation

Mr. Mullock may always have “felt” that the Sewell Tract litigation was a case that needed to be settled out of court, but gut feelings do not drive cases.  Good preparation and ability to win on the merits do. On prior occasions, Mr. Mullock, who is not a lawyer and seems not to be advised by any, has failed to understand both the merits of the case and the tactics being used to implement it.. Things in real lawsuits are not so simple as Mr. Mullock makes them out to be. You just can’t settle a case without preparing to win it.  In part, that may account for Mr. Mullock’s mistaken view that Concerned Citizens has been hell-bent only to litigate and win a case, as if that were our main objective all by itself. That is wrong. Our efforts have not been about winning lawsuits. Rather, Concerned Citizens, as spelled out in our charter, has been dedicated to the protection and preservation of Sewell Tract. We stepped into a case the City refused to take, and then prepared to litigate that case to achieve the preservation goal. Preservation can be achieved by being successful at trial, but if it can also be reached by satisfactory compromise, we have always supported that alternative.

The Real Factors Driving a Settlement

In the past two months, the three parties have been in active discussion seeking to reach a full agreement about settling the Sewell Tract suit.  We are there not because Mr. Mullock has made great revelations, or forced or persuaded anyone to the table, but because the dynamics and perception of the two principal parties (NJDEP and Sewell Tract owner, ECMA) of the case’s outcome have changed. For one thing, 2019 saw a new presiding judge take up the case, and the new judge handed down rulings (on burden of proof and standards) that reversed the assumptions the parties held for five years previously. Those rulings significantly reduced the plaintiffs’ chances for success at trial and increased the need for potentially drawn-out appeals. For another, ECMA’s views of the value of its claim became more modest, and its takeaway from a properly structured settlement became more favorable due to certain tax strategies. Also, as ECMA was preparing for trial, one of its founding principals died. Those were the main factors leading toward seeking to negotiate a settlement, and they had nothing to do with City efforts or Mr. Mullock’s unsolicited contacts.

Proclaiming Preservation and Then Attacking Preservation Measures

Mr. Mullock then attacks newly passed Ordinance 407-2020, labeling it as a mechanism for depriving City taxpayers of “just compensation” for 10 acres of City lots bordering the western part of Sewell Tract. The new ordinance, which is confined to giving up rights of way only on City land, does nothing to deprive the City from obtaining proper value for its lots–nor does putting them on the ROSI (Reserved Open Space Inventory) list.  In prior advice, briefings and a new letter from us to the Council, we have confirmed there appears to be no need to monetize the City lots to pay for a Sewell Tract settlement. So, there is no present need to sell the lots for Sewell Tract related needs.

Now, Mr. Mullock seems to admit in his posting that he does not favor developing the City lots and claims no one else does either (that is not at all clear from positions taken by at least one person who was one of Mr. Mullock’’s major backers in the recent election). Yet, it was Mr. Mullock himself who publicly projected the lots might be worth upward of $22 million as sites for 44 residential dwellings in voicing objection to how much “just compensation” might be lost.  Is it not incongruous that someone should speculate on values for the City lots based on prime residential development as a measure of the City’s loss, and then say he would not develop the lots?

Mr. Mullock also keeps maintaining that the lots were put on ROSI and Ordinance 407-2020 was enacted without a plan. Again, he is wrong, as it is clear to us that the two steps are part of a very clear pro-preservation plan. The plan being carried out is one suggested by the City’s latest Master Plan element–to hold and use land east of Pittsburgh Avenue, including the City lots and Sewell Tract, as a larger natural preserve area.

As our most recent letter to Council points out, with discovery information obtained in the litigation, we know with a high degree of certainty that the City lots are affected by substantially the same environmental limitations as western Sewell Tract. Those include wetlands, wetland buffers and flooding drainage complications.  By and large, therefore, they are not buildable and are only suitable for preserved open space.  So, the lots do not command premium value, no need exists to monetize them, and they are useful only as open space. As such, no one is knocking on the City’s doors seeking to buy them even for that purpose. In fact, Mr. Mullock knows from our updates that attempts to monetize the City lots now in the public open space market could pose potential harm to a settlement.

So, the plan to hold the lots for future open public space use and flexibly deal with them as valuable assets in constructing a natural preserve is the best plan. It is the very plan the outgoing administration has made clear it has been pursuing, and that plan is directly promoted both by the ROSI list and by new Ordinance 407-2020. We remain puzzled– how can you be for preservation and vote against steps being taken to achieve it? Likewise, how can you be for preservation and threaten to “immediately reverse” preservation measures?

Unjustified Ethics Attacks

Then, Mr. Mullock gratuitously moves on to assert conflicts of interest for Deputy Mayor Hendricks resulting from her depositions in the Sewell Tract case, and her voting on ROSI and Ordinance 407-2020. Mr. Mullock seems to be confused by what he reads and then says. Mrs. Hendricks’ deposition taken by the Sewell tract owner concerned her position regarding rights of way WITHIN that portion of Sewell Tract being affected by the state’s forced development scheme. City rights of way within Area I or II of the Tract could have an effect on the owner’s claim for value or the viability of its case.  However, Ordinance 407-2020 has nothing to do with City rights of way in those parts of the Tract, but with lots outside those areas and not owned by ECMA. Thus, Ordinance 407-2020 has no connection with ECMA’s claim or the Sewell Tract litigation, a point Mr. Mullock seems not to grasp. In voting on 407-2020, Mrs. Hendricks was consistently voting for natural preservation of only City property as part of a policy and plan that had the same objective for Sewell Tract. However, she was not voting on any matter that was part of claims being made by any party in the suit, nor one that would benefit Concerned Citizens in any way. We said that plainly in our public comment letter on the ordinance.  So, we do not understand, aside from Mr. Mullock’s apparent mistaken sense of what Ordinance 407-2020 really does, what he had in mind when he voted against it. This is even harder to comprehend now that he admits he does not favor development of the City lots and knows there is no present need to get compensation for them.

Ethical Behavior Supported by Legal Advice

When Mrs. Hendricks testified in her deposition on Sewell Tract policy that, hypothetically, she would abstain from voting on issues in the Tract, she was doing nothing more than what she had done in the earlier Council votes dealing with City assistance to Concerned Citizens. She was following legal advice from the City Solicitor to avoid even the appearance of conflict of interest (since Concerned Citizens was a party to the suit and her husband had been affiliated with us).  Mr. Mullock never tells his readers that Mrs. Hendricks was just dutifully following legal advice and not some nefarious scheme. In the most recent matters of ROSI and Ordinance 407-2020, the process was the same, but the result was different because the facts were different. Again, with knowledge of the facts and law, and after Mrs. Hendricks asked for advice on issues affecting only City land outside the litigation, the Solicitor advised Mrs. Hendricks she did not face the same potential conflict situation and that she could vote. So, she did.  Mr. Mullock has known all along that Mrs. Hendricks has just been following legal advice and acting in accordance with that advice on these issues.

Mr. Mullock also thinks it makes some difference in ethics compliance as to whether Mrs. Hendricks sat in on privileged Council deliberations on Sewell Tract. In fact, since all Council members are covered by the same legal privilege, it does not. Unless there was a concern that Mrs. Hendricks could not maintain confidentiality (a problem Mrs. Hendricks has never had), nothing compels a Council member who will not vote from observing the deliberations of other members who can. Mrs. Hendricks did change the position mentioned in her deposition from exclusion to observation, but that was her right as an elected member. Not voting does not compel ignorance, and we believe her later decision to be better informed was the right one.

It simply does not do for Mr. Mullock to set himself up in Facebook postings and elsewhere to be the public arbiter of Mrs. Hendricks’ ethics conflicts. For one thing, he does not practice law or have the expertise to do so. In that respect, the state has a comprehensive Local Government Ethics Law to determine and regulate such conflicts for local government officials.  On the issue of ROSI and Ordinance 407-2020, as previously, Mrs. Hendricks sought the opinion of the City’s Solicitor on the LGEL, received it, and followed it in doing what she believed best for her constituents. Most people would agree that kind of careful conduct deserves praise and not criticism. If Mr. Mullock still believes Mrs. Hendricks has behaved unethically, he should follow the proper channels and file an LGEL complaint. Facebook is not such a channel.

Misunderstanding State Concern about Vacating Rights of Way

The request from the state about passing Ordinance 407-2020, unfortunately, also has been mischaracterized by Mr. Mullock.  Prior to the Council meeting of November 16, 2020, a deputy attorney general representing the DEP contacted the City Solicitor and suggested it would be better if the City “deferred” passage of the ordinance in question. Rather than ignoring the issue and proceeding to a vote, as Mr. Mullock claims, the matter was deferred until December 1, 2020. In the meantime, the City and Concerned Citizens and their counsel attempted to determine the origin and basis for the state’s concern.  They came to the conclusion that it had no basis, except perhaps through misunderstanding.  While the state, in settling the suit, might worry that the City vacating its rights of way in the disputed part of the Tract could affect ECMA’s claimed value, vacating rights of way only on City lots would have no such effect.  We do not know, but suspect, that the details of the proposed ordinance were inaccurately communicated to, or misunderstood by, the state—not by us or the City Solicitor.  So, neither we nor the current administration went out of the way to “ignore” the communication, but rather investigated and considered it. Only after that, did the vote go ahead to further the preservation policy for the City lots that was part of the plan Mr. Mullock does not think exists.

Mr. Mullock seems to have forgotten, in the Sewell Tract litigation, the City is not “asking” the state to pay money in a settlement out of the goodness of its heart. The state is not being asked to do the City a favor by buying out Sewell Tract. Rather, the state is being forced to pay compensation to settle the owner’s legal claim that it has made a regulatory taking of the owner’s property.  As we said in our comment letter on Ordinance 407-2020, the passage of that measure ought to have no adverse effect on the pace or terms of a settlement.  It is wrong to derogate it as if it would.

Recognizing the Past and Looking Ahead

Finally, we were happy to see Mr. Mullock taking a longer range, natural resource-oriented view of the future for Sewell Tract and environs. We hope he carries forward with his aspirations. To do so, however, does not need a fabricated narrative that the City has played a decisive role in the Sewell Tract litigation over the past six years, or its hoped-for settlement. It could have, but it has not –largely because, first, it chose not to and, then, because it was not allowed to. Hopefully, it will play a major role in things to come. It has always been our goal to provide the City with a result from the lawsuit, whether a win or a settlement alternative, that will enable Cape May to get along with that task. If that happens, Concerned Citizens, supported by its generous and public-spirited donors, and no one else, will have made that happen for the benefit of the City. It will be our signature on the settlement agreement.”

December 11, 2020

James A. Testa

President

Concerned Citizens for Sewell Tract Preservation Inc.