Today is the scheduled hearing in New Jersey Superior Court for the state’s motion to show cause in State of New Jersey vs. Novak, et. al. Following is a summary of my defense:
STATE OF NEW JERSERY VS. NOVAK, ET. AL.
SUMMARY OF ARGUMENT AGAINST MOTION FOR ORDER TO SHOW CAUSE
by Tony Novak, Controller, Baysave Association
1) This is a case of government behaving badly. The state is asking for a court order after having unilaterally broken two agreements with Novak over the past six years after Novak performed in good faith. Then they denied three separate requests for problem resolution in the past year where all of the parties could have sat down and worked on a solution. The state is not entitled to behave this badly and then come into Superior Court to enlist legal muscle in its actions.
2) This is an unreasonable request. There is a coalition of government agencies, private businesses, nonprofit agencies and industry leaders – more than 20 in all – working on the sustainable and fully compliant redevelopment and compliance of Money Island Marina. Collectively, we have more than 70 active community redevelopment projects under development with more than 30 of them including land use permitting. It is unreasonable to think that any one person or entity can bring the transformation to a sustainable environmental future for this community, let alone develop those plans within a 30-day time frame requested by the state. Novak does not have the legal authority or capability to act unilaterally to take the actions requested.
3) The facts are in dispute. The state’s filed complaint and supporting certifications are so riddled with errors that it is impossible for us to know what the prosecution intends. We need a process – whether ongoing community-based planning, alternate dispute resolution process or discovery in this ongoing legal action – to determine the facts in this matter.
4) The admitted responsible parties are not involved yet. In this same Superior Court, before the same Judge, during questioning under oath, another person testified about her willingness to accept the legal and financial responsibility for the NJDEP violations to these properties. We expect that the responsible parties and local government will step forward but the legal process is expected to take another one to two years. It will likely take even longer for government to act on its already approved resolutions that will address compliance issues.
5) Other parties were not notified. It appears that all pre-hearing notices were sent to Novak’s home address in Money Island New Jersey despite notification that the other parties are not here. Novak is the only resident of the western half of Money Island and there is no indication that any other parties are aware of the State’s legal action. The state is required to make reasonable efforts notify parties before it takes legal action against them.
6) No environmental damages. The prosecution has presented ZERO evidence of any environmental damage or immediate threat to the environment. We have a stellar reputation and track record for best operating practices and environmental test results. What they are saying is that their paperwork trail wasn’t documented for decades, and internal management process has been flawed for many years before any of us were on the scene. A failure on their part does not equate to a crisis on my part. We all agree on the goal of working toward full land use compliance under new regulations that the NJDEP admits are not even promulgated yet. But this ‘crisis action’ and legal threats are not the way to do it.
7) A new master compliance plan of action is already underway. The NJDEP Acting Director of Coastal Land Use Planning has already announced the department’s intention to “work closely with this Money Island project to promulgate new regulations that are effective for the bayshore region of Cumberland County”, per our mayors in the past month. Last week the news was released that our new NJDEP Commissioner’s Office had fast-tracked and approved funding for the #1 environmental entanglement: public sewer systems for the nearby towns. We know that we will be included in the next phase and that all parties are working as quickly as possible. There is no need for this current legal action and, in fact, the legal action is slowing down the progress toward full compliance by causing some key stakeholders to remain uninvolved until after the legal action is resolved.