NJ Supreme Court Denies Avalon’s Petition in Marina Litigation

AVALON – In a one-page statement, the New Jersey Supreme Court denied the Borough of Avalon’s petition for certification in a long-standing litigation against Travis Marshall and the Avalon Anchorage Marina, bringing an end to one aspect of the legal dispute that has engulfed Marshall’s plan to develop the marina which he bought in 2012.
Still facing Avalon is the lawsuit Marshall filed against the borough’s Planning Board which has withheld approval of his development plans.
Brief History of the Case
In 2007, the borough vacated part of 20th Street adjacent to the bayfront marina in order to facilitate the development of condominiums. The agreement between the borough and the previous owner of the property hinged on the redevelopment plans including a set of public amenities at the property. 
After the borough vacated the public property on 20th Street, the marina was sold to Marshall’s Avalon Anchorage, LLC. According to court documents at both the trial and Appellate courts, the deed was never restricted and the title was clear of any obligation for the public amenities when it passed to Marshall.
Marshall says that it was only when he presented new plans for the development of the marina to the Planning Board in 2017 that the borough began the litigation.
The courts have sided with Marshall ruling that the borough had every opportunity to place restrictions on the sale of the property and that it failed to do so.
The borough sought the intervention of the state Supreme Court.
Supreme Court Petition
The process known as a petition for certification carries strict requirements. Over 90 percent of all petitions are denied.
What a successful petition requires is that the matter being brought before the court is of sufficient public importance that it justifies the court’s involvement. In short, the case must present a compelling and substantial constitutional question that was not dealt with as part of the appellate process.
What the borough’s legal team argued, in this case, was that the state’s Constitution “does not allow the conveyance of public land without receipt of commensurate public benefit.” The argument being that this constitutional principle overrides the “protections afforded by New Jersey’s recording statutes,” in effect the unrestricted deed.
The borough’s argument was that the lack of restrictions on the deed did not absolve Marshall from the obligations imposed by the agreement with the previous owner when the land was vacated.  Those restrictions whether they were part of the deed and title transfer or not remain enforceable because the public must have compensation for the vacating of public land.
The courts ruled against the borough and the Supreme Court did not find the constitutional issue compelling enough to grant the petition which would have led to a review of that issue.
The End of Litigation
Normally this would be the end of the litigation. It is possible to file a motion for reconsideration. There is no word as to whether or not the borough would seek to prolong the process through such a motion. A request for comment from the borough received no response.
For Marshall, the whole process “has been hell.” He said he “never wanted any of this to happen.” Marshall points to a time in 2015 when he offered to sell the marina to the borough.  “We met and they never followed up as they said they would.” Marshall feels the borough wanted to tie him up in expensive delays.
Part of the process of a petition to the Supreme Court is a certification by the borough that it filed with the court because of the constitutional principle at stake and not as a means of delay in the legal proceedings. 
Marshall sees it differently. “They persisted at every turn just to tie my hands,” he said. “I couldn’t sell it, I couldn’t develop it, and I couldn’t refinance it because of their malicious punitive lawsuit,” he added.
Marshall sees the court’s denial of the petition as “vindication” and calls on the borough for an apology. He also says that the borough has “a lot of explaining to do to the taxpayers.”
Future Development Plans
One of the public amenities that was part of the original deal to vacate the land was having the marina maintain a fuel dock. Just recently, Marshall had the fuel tank removed signaling what he terms as “the start of the development of the marina.”
Yet Marshall’s own suit against the Planning Board remains and his plans for the marina’s development have not been formally approved by that body.
To contact Vince Conti, email vconti@cmcherald.com.