Strategic Envtl. Partners, LLC v. Bucco
Decision Date | 04 May 2016 |
Docket Number | Civil Action No. 13-5032 |
Parties | Strategic Environmental Partners, LLC, et al, Plaintiffs, v. Senator Anthony Bucco, et al, Defendants. |
Court | U.S. District Court — District of New Jersey |
Matthew Michael Fredericks, Matthew M. Fredericks, Esq., LLC, West Orange, NJ, for Plaintiffs.
William Ray Lamboy, New Jersey Department of Law & Public Safety, Robert Joseph Kinney, State of New Jersey, Trenton, NJ, Aileen F. Droughton, Stuart Alan Panensky, Traub, Lieberman, Straus & Shrewsberry, LLP, Red Bank, NJ, Michael Peter Rubas, Law Offices of Michael Peter Rubas, LLC, Jersey City, NJ, for Defendants.
This matter comes before the Court on two separate motions to dismiss the Second Amended Complaint of Plaintiffs Strategic Environmental Partners, LLC ("SEP"), Marilyn Bernardi, and Richard Bernardi (collectively, "Plaintiffs"). As discussed further below, this case concerns allegations that all the Defendants retaliated against Plaintiffs and illegally seized Plaintiffs' landfill. Defendants New Jersey State Senator Anthony R. Bucco ("Bucco" or "Senator Bucco"), the New Jersey Department of Environmental Protection ("NJDEP"), NJDEP Commissioner Bob Martin, and former NJDEP Deputy Commissioner Irene Kropp (collectively, including Senator Bucco, the ) filed a motion to dismiss the Second Amended Complaint. D.E. 48.1 Defendants Roxbury Township ("Roxbury"), Fred Hall, and Christopher Raths (collectively, the "Roxbury Defendants") joined the motion. D.E. 53. Defendant Atlantic Response, Inc. ("Atlantic") filed a separate motion to dismiss. D.E. 49. Plaintiffs opposed both motions. D.E. 55, 57. On April 29, 2015, the Court entered an Order requiring the parties to submit further briefing on issues raised by the parties in their motions. D.E. 76. As ordered, the parties submitted supplemental briefing. D.E. 78–80, 82–83, 85–86. Because the motions raise similar issues of law and fact, the Court will consider the motions to dismiss together. For the reasons discussed below, both motions to dismiss are granted.
This action arises out of a project (the "Project") undertaken by SEP to remediate a landfill in Roxbury Township, New Jersey. Plaintiff Marilyn Bernardi is the sole member of SEP and Plaintiff Richard Bernardi is her husband and an "authorized agent" of SEP. Second Amended Complaint ("SAC") ¶¶ 3–4, 51. Plaintiffs allege that Defendants violated their Constitutional rights, as well as multiple state laws and the New Jersey State Constitution, by interfering with the operation of the Project and by eventually taking control of the landfill. Id. at Introduction.
In 2010, SEP acquired 103 acres of real property in Roxbury Township that was formerly the known as the Fenimore Landfill (the "Landfill" or the "Site"), with the purpose of remediating the Landfill and developing the property as a solar farm. Id. at ¶¶ 13–14, 39–40.3 Shortly after SEP acquired the property, Plaintiffs allegedly began to encounter opposition to the Project from Senator Bucco, the NJDEP, and the Roxbury Defendants. Plaintiffs assert that, while SEP was in the process of obtaining permits from NJDEP to proceed with the Project, Senator Bucco met with Mr. Bernardi and "told Mr. Bernardi that all permit applications related to the Landfill would have to be submitted through Senator Bucco's office." Id. at ¶¶ 49–52. SEP "ignored Senator Bucco's absurd demand ... and declined to involve Bucco in its remediation project." Id. at ¶ 53. Plaintiffs also refused to comply with Roxbury's "demands," that SEP "apply to the Township for permission to undertake the remediation of the Landfill," as SEP believed that permission from the Township was not required. Id. at ¶¶ 54–55.
Plaintiffs contend that these refusals to involve Bucco or Roxbury in the Project "frustrated and angered" Roxbury, Bucco, Hall (Roxbury's Mayor) and Raths (Roxbury's Manager).Id. Plaintiffs allege that the ultimate source of Bucco and Roxbury's opposition to the Project was a fear that Roxbury could be liable for "negligent handling of the Landfill and the houses built around it." Id. at ¶¶ 48, 50. Plaintiffs also allege that Bucco feared Roxbury's potential liability because his son, Anthony M. Bucco, is the Township Attorney for Roxbury. Id. at ¶¶ 47–48. In addition to this fear of potential liability, Plaintiffs contend that Bucco and Roxbury opposed the Project because they believed, "correctly," that the Project would create heavy truck traffic on residential streets and that this would upset local residents. Id. at ¶ 45.
Plaintiffs allege that SEP's relationship with the NJDEP also soured when SEP objected to a provision of the "Closure Plan" for the Landfill. In October 2011, the NJDEP issued a Closure Plan to SEP, which permitted SEP to accept " construction and demolition screenings ("CDS"), a non-hazardous, recyclable material to cap and fill the Landfill. Id. at ¶ 56. "Several months" after the NJDEP issued the Closure Plan, Plaintiffs' objected to a provision of the plan that required SEP to deposit all of its income from "tipping fees" (fees paid to SEP in consideration for accepting NJDEP-approved fill material such as CDS) into an escrow account controlled by the NJDEP. Id. at ¶¶ 56–59. Following SEP's refusal to deposit tipping fees into the escrow account, the NJDEP issued an order "commanding SEP to cease operations at the Site." SEP sought injunctive relief against the NJDEP, but the parties resolved the matter with "an injunction by consent." Id. at ¶¶ 59–60. The resolution was short-lived, however, because according to Plaintiffs, SEP's request for an injunction "incensed and frustrated Defendants Martin, the NJDEP, Bucco and Roxbury," so that "Commissioner Martin and the NJDEP escalated [their] efforts to shut SEP down." Bucco and Roxbury allegedly "joined the NJDEP against SEP." Id. at ¶¶ 61–62.
Subsequently, Plaintiffs allege that Defendants took the following actions as part of their efforts to "shut SEP down":
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