AVALON – What would normally be a matter of straightforward infrastructure management has become an issue of threatened litigation and public accusations of behind-the-scenes deals in the borough.

The Borough Council at its July 24 meeting adopted a resolution that authorized the borough’s engineering firm, Mott MacDonald, to move ahead with efforts to modify an existing permit so that an outflow pipe that the borough says has failed can be relocated and replaced.

But it’s anything but a routine matter.

The Pipe

The outflow pipe currently sits in an easement at 576 Seventh Street, a property owned by Paul Morrissey. Business Administrator Scott Wahl said at the June 12 council meeting that the borough planned to replace the failed pipe and relocate it farther toward the center of the 70-foot easement between Morrissey’s property and the adjacent property at 606 Seventh Street owned by Dan Hopkins.

In an email dated June 21, Wahl said the failed pipe is in an easement created when the borough vacated an area of Sixth Street 44 years ago. The proposed work, he said, will leave the pipe on Morrissey’s property but farther west, toward the Hopkins property but still within the easement. The borough will seek what Wahl called a minor permit modification for the work.

In an email dated July 31, the administrator, responding to a request for comment on the matter from the Herald, said, “The responsibility of the Borough of Avalon is to provide flood relief to the neighborhood in the interest of public safety, and our interest is not exclusive to the two property owners who recognize the borough has had an easement for this exact purpose for over four decades.”

The Controversy

There is controversy over why replacing the pipe requires relocating it. For those members of the public who have spoken out against the relocation, things don’t add up. Martha Wright, of Seventh Street, went so far as to say the relocation argument “doesn’t smell right.” She accused the borough of “pandering” to individual interests at the expense of the community as a whole.

At the Borough Council meeting on June 12, an attorney for Hopkins said his client would vigorously oppose any movement of the pipe toward his client’s property. The threat of litigation led borough solicitor Nicole Curio to advise the council to refrain from responding to any public comment on the issue. That advice, not uncommon in matters with potential civil action, had the perhaps unintended impact of making the borough’s motives and intentions more opaque.

Back in June, Wahl explained that the borough was relocating the pipe close to the center of the easement between the two properties as a matter of municipal policy. He explained that the need to replace the failed pipe opened the issue of placement, and that borough policy was to “share the burden” of such infrastructure along a line of two adjacent properties, in this case 576 and 606 Seventh Street. Wahl did not at that time go into the full rationale he later supplied in his July 31 email.

At the July 24 meeting, Wright called the “shared burden” justification for relocating the pipe “nonsense.” Hopkins asked why a permit for work on the pipe where it is currently located needed to be modified at taxpayer expense, an expense estimated at $53,000.

Hopkins said, “You have a permit issued in October of 2023. What changed in that time period that justifies this relocation?” Under advice from Curio, the council made no response to any of the questions Hopkins asked.

Another question that went unanswered was why, if the pipe has suffered a “catastrophic failure,” the borough is willing to delay replacing it while seeking a Coastal Area Facility Review Act (CAFRA) permit modification.

At the same July meeting, Assistant Business Administrator James Waldron introduced a rationale for the relocation that had not been offered in the public discussions in June. Waldron said the borough lacks evidence that it had “a legal right” to place the pipe where it was placed “40 or 60 years ago.”

Waldron added that the borough knows it has the right to use the proposed easement area. Once that decision was made, he continued, what Curio termed the “fair share burden” policy dictated the location within the easement.

The claim that the current pipe was located where it has no legal right to be is different from what was discussed at the June council meeting and different from Wahl’s June 21 email in which he said the pipe currently resides within the easement created by the vacating of the Sixth Street area.

Hopkins challenged Waldon’s explanation as “factually incorrect,” citing statements the borough made in its CAFRA permit application as evidence. At this point Waldron said he “may stand corrected.”

Hopkins argued in an email to the Herald that after the meeting the borough “has not provided an explanation for why they want to amend the permit to move the pipe farther to the property line rather than the location approved in the permit,” a location that, he adds, “avoids the need to remove trees.”

Wahl spoke to previously unstated reasons in his July 31 email on why the failed pipe cannot be replaced in its existing location. Much of what he says in his email was not part of the borough explanation as it was summarized by Curio at the start of the July 24 discussion or by Waldron in response to public questions at that meeting.

Borough Response

Wahl argues that the current location for the pipe is “to the extreme easterly portion of the easement, adjacent to the property line and within a couple of feet of the physical structure on the lot.” He goes on to say that doing the replacement in the current location would “require disturbance to the actual structure on the easterly lot,” 576 Seventh Street.

The borough also asserts that the work needs “more room” because the new pipe replacing the failed pipe is larger in size. The move will provide an additional catch basin in line with the larger pipe diameter, providing greater ability to deal with flood conditions. Wahl says the new location accomplishes the borough policy goal of sharing the burden between the two neighboring properties.

Another concern, expressed by Seventh Street resident Adam Melson, is that the relocation is an attempt to set up lots for development that would allow a third house to be built. Curio denied that any such issue had been discussed by the council and said such an issue would be for the Planning and Zoning Board and not for the council.

The council approved the spending of taxpayer funds for the modification of the existing permit and made no further comment regarding the questions raised by residents.

Transparency

Public accusations at the council meeting concerning a lack of transparency were denied by Curio and Waldron, but those denials did not satisfy residents who spoke at the meeting. Wright called the entire matter a “kerfuffle” dating back to 2017. Hopkins, as one of the property owners involved, strongly disagreed that the borough had handled the matter with transparency.

There is also still the allegation that the council is acting to support a sale that has already occurred of the 576 Seventh Street property. The attorney for Hopkins in June asserted that the sale of that property initially carried a condition that the outflow pipe be relocated.

In the second round of public comment, Wright again raised the issue of a behind-the-scenes deal to move the pipe to benefit the previous and current owners of 576 Seventh Street. She called setting up the property for eventual subdivision the “real underlying reason” for the council’s action.

To those who claim there is no evidence the outflow pipe has failed, the borough, through Wahl, cites two inspections by Middlesex Water, “a regulated New Jersey utility company that manages the borough system,” which documented failure “each time.” To those who claim that the movement of the pipe is a prelude to increasing density in that area of Seventh Street, Wahl says density could not increase when the borough vacated the Sixth Street area, “and it cannot increase now.”

Wahl ends his email response to the Herald by stating, “Avalon intends to close this matter at the August 14th meeting with evidence that the proposed location of the new pipe is equitable and addresses an issue that if ignored, would get worse and not better.”

Contact the reporter, Vince Conti, at vconti@cmcherald.com.