Judge Denies Open Space Injunction

A judge ruled Friday that STEM (Save the Environment of Moorestown) couldn’t immediately stop the township from , but the question of whether council is ultimately in the right is far from settled.

Superior Court Judge Ronald Bookbinder wasn’t sufficiently convinced in the strength of STEM’s case to grant the injunction—intended to block the township’s use of the Open Space, Recreation, Farmland and Historic Preservation Trust Fund for improvements to North—.

Even with the favorable ruling, Moorestown likely won't move ahead immediately on the project in case the town loses the larger case.

Bookbinder did not throw out STEM's lawsuit—which township attorney Thomas Coleman had requested—and during the proceedings raised questions about certain elements of the case.

Specifically, the judge was concerned over the use of the term “such lands” in the township’s interpretative statements on referenda to approve the Open Space ordinance in 1998, 2001 and 2007. In part, the statement reads that the Trust Fund will be used “exclusively for the acquisition of lands for recreation and conservation purposes; development and maintenance of such lands …”

Baron argued the use of the term “such lands” restricts the township to using the fund to maintain/improve land purchased with the fund, which Wesley Bishop was not.

“I have a serious concern about the interpretative statement,” said Bookbinder, though he did not elaborate on that point.

Based on the “such lands” argument, Coleman—who referred to the lawsuit as a “stale challenge”—questioned why STEM hadn’t sued the township when it appropriated money from the fund to pay for dam improvements at , which was not purchased with money from the Trust Fund.

Bookbinder challenged Coleman’s assertion however: “What you’re basically saying is somehow STEM, or anybody else, is stopped (from suing) because they let some other thing happen, and I’m not sure that that’s the law.”

On the other hand, the judge ruled Baron didn’t have a compelling enough case to grant the injunction. In his decision, Bookbinder wrote the language in the state statute governing the use of the Trust Fund is “sufficiently ambiguous” as to leave the definition of “recreation and conservation” open to multiple interpretations.

“This court disagrees with STEM’s argument that the definition of recreation and conservation clearly does not include or contemplate artificial turf fields or the type of athletic activities which would occur on artificial turf fields,” he wrote.

STEM also argued the state statute only promotes activities having a “natural origin,” i.e. not artificial turf. However, Bookbinder ruled this argument was “undermined” by the fact that language in the statute permits “public indoor recreation,” such as swimming pools and basketball courts.

Bookbinder also pointed to the phrase “or similar uses” included in the state statute’s definition of recreation and conservation to suggest “the Legislature appears to promote recreational and/or conservation activities which may not have been explicitly identified.”

“Semi-retired” attorney and township resident Donald Simpson also testified on STEM’s behalf and argued that the township’s attempts to use the fund for the installation of artificial turf were “deceptive.”

“There is nothing in the interpretative statement that suggests that could be possible,” he said. “I didn’t ever know it could be used for a use like this … What we’re saying is there’s a duty when filing an interpretative statement to give knowledge to the voter, and the voter was given false knowledge, if it means that they can put this kind of a thing in.”

Baron told the judge he could potentially file a brief in response to the decision within 10 days—pending some public records requests he plans to submit to the township Monday.

Bookbinder will hold a conference call with the attorneys Tuesday afternoon to discuss next steps.

In the meantime, council has to decide whether to move forward with the Wesley Bishop North project, knowing the court could ultimately rule against the township, which would leave them on the hook for the Trust Fund money. Bookbinder warned Coleman of such a possibility.

“I’m not going to decide this case because you spent money,” he said. “If Moorestown does something, that’s your risk.”

Due partly to that risk, Baron urged the judge to grant the injunction.

“Would you order them to put the $1.4 million back if they misspent it?” Baron asked rhetorically. “We are talking about open space, a valuable resource …. If they clear those fields, if they remove the indigenous species from that area, take out the soils from that area—in essence de-environmentalize that property—they can’t recreate that.

“Why should the residents of Moorestown have to deal with that result when it could easily be avoided by just restraining that for a little while?”

Coleman said council would have a closed-door session following their regular meeting Monday, but was not prepared to say what advice he would give them.

For his part, Mayor John Button, though encouraged by Bookbinder’s ruling on the injunction, said he’s inclined to wait.

“The prudent thing to do is to wait to use this money … That’s my immediate reaction,” Button said. “(The judge’s ruling) is not an automatic ticket to use the money.”