Avalon Marina Settlement Final; Planning Board Votes Approval

AVALON – The long legal battle over the future of the Avalon Anchorage Marina is over. With a vote to approve development plans for the marina, the Avalon Planning Board, Nov. 1, carried through on a crucial condition of a settlement agreement in the case.
The saga began in 2010 with the approval by Borough Council to vacate a portion of 20th Street to allow the previous owner of the marina to develop a residential complex on the property.
Conditional for that approval by the council was a series of public amenities which the property owner promised to include in the development project.
Problems began when the borough failed to restrict the deed to ensure that the amenities were part of any development of the property.
In 2012, the property was sold to Travis Marshall.
As the state, Appellate Court decision noted “nothing in either the ordinance vacating the portion of 20th Street or the site plan approval expressly conditioned the street vacation on the construction of those public benefits.”
The court went on to state, “We note only that the power to have effectively conditioned the street vacation on those benefits was in the borough, and that the Recording Act shields the subsequent purchaser from having to construct the improvements having never been noticed of any such obligation.”
After altering his original development plans due to changed requirements following Superstorm Sandy, Marshall presented his site proposal to the Planning Board in 2015.
Marshall’s plans failed to gain approval largely because they lacked the proposed amenities. 
Marshall offered to sell the property to the borough in 2015, but that offer was ultimately rejected.
The borough sued in February 2016 arguing that the vacating of public property imposed a strict requirement that the amenities must be included regardless of the fact that Marshall had a clear unrestricted deed to the property.
What followed were two setbacks for the borough in court at both the trial and the appellate level. The borough made a constitutional argument and entered a petition to the state Supreme Court only to have that court reject the petition. That left the Appellate Court decision in place.
Meanwhile, Marshall filed suit against the planning board concerning its rejection of his plans based in part on requirements the courts had ruled did not impose an obligation on him.
Settlement talks have proceeded for several months with all parties, the marina, the borough and the planning board as participants.
The settlement appears to be a win for all sides.
The plans the planning board approved at its special meeting Nov. 1 are essentially the same ones the board had rejected in 2015-16. Marshall is free to move ahead with a development effort. 
His investment in the property is free of legal entanglements.
The borough stated in a release that the settlement ensures “tremendous improvements to the Marina District that will pay dividends for generations to come.”
The agreement permits the development at the marina which includes a residential complex while it maintains 20 boat slips that will be available for rent by the marina to the general public.
The plans also call for a renovated gazebo, which will mimic the borough’s signature gazebo on Dune Drive, with a public access boardwalk from the gazebo to the waterfront.
The borough agreed in the settlement to reconfigure electrical power to the marina area for underground infrastructure, removing a series of poles that made the area more vulnerable to loss of power during storms.
The removal of poles also improves the view of the waterfront and the proposed gazebo.
The borough also agreed “to replace 40 linear feet and a 10-foot existing wing wall of a bulkhead that provided resiliency for the region.”
The reconfiguring of the bulkhead and the electrical infrastructure at borough expense were not part of Marshall’s original plans for the marina and constitute improvements for the development and the neighborhood.
Avalon Mayor Martin Pagliughi said in the borough’s release, “We have accomplished exactly what we set out to do.”
Pagliughi’s statement referenced maintaining the public access to the waterways, increased resiliency to a very special neighborhood, and continued availability of boat slips at the marina for public use.
Funding for the bulkhead replacement and the reconfigured electrical power will be included in the 2018 Avalon municipal budget.
Marshall said he was happy the litigation was over, and he is free to pursue a project of great personal importance to him and his family. The marina gains the approvals for the project, the new bulkhead and the reconfiguring of the electric infrastructure.
The original set of requirements tied to vacating borough land included a fuel dock. The settlement specifically ends any such requirement.
The borough also agreed as part of the settlement to pay “the entire cost of the mediation.”
All parties have agreed to end existing litigation and “execute mutual releases in favor of all other parties.” The threat of personal suits is thus ended as well.
To contact Vince Conti, email vconti@cmcherald.com.