Borough Petitions NJ Supreme Court

AVALON – The Avalon Borough Council unanimously passed a resolution June 14 permitting borough attorneys to petition the state Supreme Court regarding the continued litigation with the owner of the Marina at Avalon Anchorage. 
Such petitions to have a case heard by the state’s highest court are denied approximately 90 percent of the time.
The litigation by the borough against the marina stems from an action by the borough to vacate parts of 20th Street in 2010. The borough would allow marina development in return for which the borough received assurances that the marina would maintain the fuel dock and provide other public amenities, including a public access ramp and a boardwalk public walk area.
According to court documents, the borough confirmed that the vacating ordinance provisions had been met without placing restrictions on the title for the actual construction of the amenities promised.
Again, court documents suggest that this may have presented no problem as long as the borough was dealing with the property owner with whom it had negotiated the deal.
In 2012, the marina was sold to the Marina at Avalon Anchorage, LLC owned by Travis Marshall. The sale went through with no known deed restrictions or any legal requirements recorded regarding the proposed public amenities at the marina.
The borough litigated to force the new owner of the marina to meet the obligations the borough felt had been openly agreed to with the previous owner as part of the vacating process.
In June 2016, the borough lost the case in Superior Court.
The court dismissed the borough’s claims and recognized the vacated portions of the street has “fully vested” for the marina owner.
The court ruling stated that the marina is under “no obligation to provide any public benefits, including but not limited to a boat ramp, public walkway, or gasoline dock facilities.”
The borough appealed that ruling and the Appellate Division case was decided June 5 of this year, just about one year after the lower court ruling.
The ruling again was unfavorable to the borough.
The court found that it is “likely the borough could have compelled Anchorage’s predecessor in title to construct the public benefits improvements or relinquish the property vacated.”
However, the court ruled “that because Anchorage was a good faith, innocent purchaser without knowledge of the agreement between its predecessor and its borough, it took title free of the unexpressed conditions of which it had no notice.”
The court went so far as to state that the borough had the power to “effectively condition the street vacation on those benefits” and failed to do so.
Before the vote to authorize attorneys to file for certification with the Supreme Court, Marshall used the public comment period to address council.
He argued that he bought the property in 2012. He said that it was only when he went to the borough with his site plan in 2015 that he was made aware of the improvements the borough was expecting.
Marshall cited the court findings and reiterated that his title was free and clear when he purchased the property.
He stated that the error on the vacating ordinance was caused by the borough’s attorney.
Marshall said he had spent over $100,000 litigating this issue with the borough. He recounted his attempt to OPRA (Open Public Records Act) records on what the borough had spent on the case.
He said he was unable to get the information and claimed that the borough did not even know how much of tax funds had been spent on the litigation.
Any further litigation, which Marshall argued would result in affirming the court decisions already in hand, would just be a further waste of taxpayers’ money.
Marshall added that the litigation by the borough was arbitrary and capricious, and said it was punitive in nature.
There was no comment from any member of council to Marshall’s presentation and he and his wife, Heather, left the council meeting before the vote on the resolution.
The borough’s resolution states that special litigation counsel advised the borough “There is a basis on which to seek a further review” and that borough council “believes that it is in the public interest to do so.”
During the meeting discussion, Assistant Business Administrator James Waldron indicated that the basis for appeal rested on a constitutional principle which the Appellate Court did not resolve. Waldron did not elaborate on the nature of that principle.
Business Administrator Scott Wahl did not respond to a request to elaborate on the borough’s position, saying that it was borough policy to not comment on pending litigation.
To contact Vince Conti, email vconti@cmcherald.com.