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Wednesday, April 17, 2024

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North Wildwood Mayor: DEP Acted in Retaliation

Shay Roddy/ File Photo
North Wildwood Mayor Patrick Rosenello at a City Council meeting in 2021.

By Shay Roddy

Rosenello says beach woes are due to politics

NORTH WILDWOOD — In a statement submitted to a Superior Court judge, Mayor Patrick Rosenello said he has reason to believe the condition of North Wildwood’s eroded beaches is the result of an act of political retribution on the part of state government.

In a five-page certification filed as part of the city’s lawsuit against the state Department of Environmental Protection, Rosenello wrote that there “appears to be a direct link” between critical public statements he made in June 2020, about the state’s handling of the economy throughout the COVID pandemic, and the DEP’s lack of progress in acquiring the easements that must be obtained before the U.S. Army Corps of Engineers can begin construction of the Five Mile Dune project.

The crux of the city’s suit is an allegation that the state agency breached contracts by failing to perform shore protection work in North Wildwood, causing the city to spend more than $21 million when it was forced to take shore protection into its own hands.

The dune project was first presented to the public about 10 years ago, with the DEP and Army Corps executing their partnership agreement in 2017, but until recently very little was done by the DEP to advance the project. Meanwhile, North Wildwood’s beachfront has been battered by the ocean, and erosion has forced the city to close access to several blocks of beachfront.

A March 3 photo taken from where there used to be a beach and dune system, showing a bulkhead the city installed without the DEP’s authorization. DEP issued North Wildwood notices of violation and associated fines for installing the bulkhead. Photo Credit: Michael Heenan

In further support of his statement, Rosenello wrote that he was advised in “direct communications with several DEP employees in the DEP’s Office of Coastal Engineering” that notices of violation the DEP sent to the city and its contractors were “issued under pressure from the state.”

The notices – the first of which was issued on June 6, 2020 — came within days of Rosenello’s public criticism of the state’s handling of the pandemic, he wrote. Within a week, the “DEP marshals the full resources of the commissioner’s office to issue notices of violations for things as trivial as the installation of an American flagpole some 30 years ago,” he continued.

A second set of violations was issued June 25, 2020. At the time, Catherine McCabe was the DEP’s commissioner, and current Commissioner Shawn M. LaTourette was her chief of staff.

The notices of violation were later followed up with a historic $12.8 million in associated fines levied against the city by the DEP.

The Rosenello certification was not sworn under oath, but it included language acknowledging that the mayor would be subject to punishment if it included statements that were willfully false. It was filed in opposition to the DEP’s motions seeking to have the deposition notice the city sent to LaTourette thrown out and in opposition to the agency’s attempt to limit the scope of discovery available to North Wildwood to exclude anything pertaining to COVID policy or the June 2020 notices.

The DEP’s motion to quash the notice of deposition to LaTourette — which the court granted at a hearing earlier this month — cited the high burden established in a 1975 Appellate Division decision to depose a high-ranking government official on a topic that is not even subject to discovery.

A motion to quash the city’s subpoena of McCabe is pending before Superior Court Judge James H. Pickering Jr. Deposing LaTourette can be revisited after the city’s efforts with lower-level DEP officials are exhausted, the judge ruled.

In the Rosenello certification, which aimed to provide a basis for North Wildwood’s discovery requests for “communications concerning” the 2020 notices of violations, the mayor writes the city had repeatedly asked the DEP to take emergency action for years leading up to the summer of 2020, but those requests were ignored by McCabe and LaTourette. Not one of nearly a “dozen correspondences were ever replied to,” he wrote.

“It is amazing, then, that on June 6, 2020, a Saturday during one of the most challenging summers in the history of the Jersey Shore due to the COVID-19 pandemic, former Commissioner McCabe herself issued a press release and called me on my personal cellphone on a Saturday morning, regarding the June 2020 NOV,” he continued.

In a reply brief supporting the DEP’s motion to quash the LaTourette deposition notice, Deputy Attorney General Dianna E. Shinn argued that North Wildwood’s assertion that the DEP has failed to acquire the easements in retaliation for the mayor’s critical comments are “without any evidence or even an alleged cause of action” and are being raised now for the first time in this litigation, a case that began in December 2022, when the DEP moved for an injunction to prevent the city from installing a bulkhead.

The DEP was granted the injunction request, but the judge also ruled that a counterclaim the city filed in January 2023, seeking $21 million in compensatory damages, could proceed.

In June 2023, some of North Wildwood’s counterclaim was dismissed while other claims were transferred out of the Chancery Division, where it had been assigned to Judge Michael J. Blee when it was first filed. It is now in the Civil Division, in front of Pickering.

The DEP argued North Wildwood is “using this litigation as a fishing expedition on unrelated topics, which is an abuse of the discovery process,” pointing out the city’s claims regarding the notices of violation were dismissed with prejudice by Blee, and arguing that matters arising from those notices are being properly litigated in the Office of Administrative Law.

In its pleadings, the DEP called the city’s “theory” of retaliation on the part of the state and its connection to COVID policies “out of left field” and further argued the city failed to articulate “any relation to DEP’s performance to acquire easements” for the Five Mile Dune project, adding that North Wildwood’s theory “is entirely unsupported by any facts.”

In response to the Herald’s request for comment on the mayor’s certification, Larry Hajna, a DEP spokesman, said, “The DEP does not comment on litigation.”

When reached by phone, the typically outspoken Rosenello acknowledged that not responding to the Herald’s inquiry would be out of character, but he said he agreed with the advice of an attorney representing the city, Anthony Bocchi, and would not comment beyond what was in the certification.

He also declined to answer several follow-up questions from the Herald, including which DEP employees gave him the information he relied on in part to form the theory laid out in the certification and which critical public statement he made about COVID policy he believes caused the alleged retaliation.

In response to another Herald inquiry, Allison Inserro, a spokesperson for the state Attorney General’s Office, sent three orders signed by Pickering, which granted the DEP’s motion to quash the LaTourette deposition notice, ruled North Wildwood is not entitled to discovery on the notices of violation or COVID policy implementation, and determined the city cannot demand any communications or documents from the DEP or the governor’s office related to either topic.

“The orders speak for themselves; we have no further comment,” Inserro wrote in an email.

Bocchi, North Wildwood’s lawyer, was also tight-lipped when reached by the newspaper, declining comment on whether the city plans to appeal or file for reconsideration, but he did say in court the city would consider appealing to the Appellate Division.

“I’m not saying that we’re going to do that, but that’s what discovery is for,” he argued in court. “That’s not how our discovery rules work. We get to ask questions. What are they hiding? Why are they fighting this so vigorously?”

During an average high tide on March 3, waves threaten John F. Kennedy Beach Boulevard, shown here from 2nd to 7th avenues, and the property west of it. To the right of 2nd Avenue is Hereford Inlet. Photo Credit: Michael Heenan

In the certification, Rosenello pointed out that of the 127 miles of coastline in New Jersey, only the Wildwoods have not gotten an Army Corps project, adding that the Five Mile Dune project is the only post-super storm Sandy, Army Corps project in New Jersey that has not yet been constructed and the only project in the Army Corps’ Philadelphia District still in the design stage.

“The reason for this is because the DEP has failed to obtain the necessary easements as it is obligated to do,” Rosenello wrote, adding, “We believe there is a direct link between my outspoken opinions and the DEP’s unfair treatment of North Wildwood.”

In addition to Pickering’s decision to throw out the LaTourette deposition notice, the judge issued orders limiting the scope of discovery, in effect ruling to exclude items responsive to the theories raised in Rosenello’s certification, something that would make it difficult for the city to obtain evidence to advance its case.

Pickering decided North Wildwood is entitled to certain discovery related to the 2017 partnership agreement for the Five Mile Dune project between the DEP and Army Corps, over the DEP’s objection. The agency argued the city was not a party to that agreement.

That argument did pass muster with the judge in the context of another DEP motion, which sought to dismiss the city’s claims for damages related to the 2017 project partnership agreement, as he ruled from the bench that North Wildwood was not a party to or third-party beneficiary of the agreement, and has no standing to bring a breach of contract claim, “particularly where the other party to the 2017 PPA has not made any assertion.”

“I’m having some trouble with the concept of a municipality being a beneficiary of a beach project. I think if the state and the Army Corps is involved in this, it’s because they want to make life more enjoyable, I guess, for people to go to the beach, whether you’re from North Wildwood, or whether you’re from inland in Cape May County — like I am — or whether you’re a resident of Missouri,” Pickering said during the motions hearing, held March 1. “I don’t know that the beneficiary is the municipality where the beach is located.”

The judge also dismissed the city’s claims related to the DEP’s alleged breach of the state aid agreement it entered with the city in 2009. Pickering ruled the claim was barred by a one-year statute of limitations, since the project the agreement pertained to was completed in 2010.

Surviving in the case is North Wildwood’s claim that the DEP breached a 2021 state aid agreement it entered with the city, although the DEP contends it wasn’t executed until 2022, which may become relevant if it comes to awarding damages.

Dismissal of the breach of contract claims on the 2009 and 2017 agreements could also limit the amount of damages the city could collect if it ultimately prevails on the remaining claim related to the 2021/2022 agreement. Significant beachfront work was done by the city prior to 2021/2022, which North Wildwood had sought court-ordered reimbursement for.

A request by the city to mediate the matter with Blee, the judge who had the case when it was in the Chancery Division and tried then to help settle it, was rebuffed by the DEP.

“If the basis is still what the parties have been talking about for over the last six months, I would say no [to agreeing to mediation before Blee],” Shinn, the deputy attorney general, said to the judge on behalf of the agency. “It’s DEP’s position that they’re not responsible for doing what the ask is of North Wildwood. So, we don’t think it’s worth our time.”

The return date on the DEP’s motion to quash the McCabe subpoena was set at March 28, and the city must file opposition at least eight days prior, under the rules.

In a Feb. 12 email to Bocchi and an associate at his firm, Ryan P. Duffy, that was included as an exhibit in the DEP’s motion to quash the McCabe subpoena, Shinn asked North Wildwood to withdraw the request for her deposition, again citing the 1975 appellate case limiting depositions with high-ranking government officials.

“Furthermore, Catherine McCabe was not even in office when the [2022 state aid agreement] was fully executed,” Shinn wrote.

However, the city refused.

“High level government officials may, in fact, be deposed when there is a showing of ‘first-hand knowledge’ and ‘direct involvement’ in the events giving rise to the action,” Bocchi wrote in response to Shinn, underlining and bolding the word “and” in the email.

Bocchi added that he wanted answers from McCabe on why she made that Saturday morning call to Rosenello and at who’s direction.

“The city maintains the [notices of violation] are inextricably linked to the DEP’s contract failures under the applicable state aid agreements,” he added.

The parties are scheduled to be back in front of Pickering on April 10 for a case management conference.

To reach the reporter, Shay Roddy, email sroddy@cmcherald.com or call (609) 886-8600 ext. 142.

Reporter

Shay Roddy is a Delaware County, Pennsylvania native who has always spent as much of his summers as he could at the Jersey Shore. He went to Friends’ Central and is a graduate of the Walter Cronkite School of Journalism at Arizona State University.

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