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UPDATE: Massive Brush Fire Rages In Berkeley,…

Judge Denies Open Space Injunction

However, STEM's challenge to the township's Open Space spending is still unsettled.

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.”

Smack that August 03, 2012 at 08:03 PM
So I'm guessing this is pushed off until next year?
Alex August 03, 2012 at 09:53 PM
Mayor Button is wise to wait. He must be under some pressure but he made the right decision.
HomeBrew August 03, 2012 at 10:38 PM
Thanks to Patch for timely news report. Thanks to STEM for standing up. And praise for Mayor Button. He's inclined to wait ... and that's a start.
Donnerstag August 03, 2012 at 11:03 PM
Look folks, let's be perfectly honest here. Our judge has made a "tenative" decision. Being inclined to wait, may only be until that decision is complete. Perhaps this is delayed a bit. When Should "council" move on these funds? A few weeks? A couple of months, after election day? Lame duck period? Or a "smack that" approach wants next year? By being under much pressure, the "smack that" guess may "be a start" for the new year. Spin time for the elections this year? Time will tell..
Grass stains August 04, 2012 at 02:35 PM
So what does the MSOS crowd say now? This ought to be interesting... Any rebuttal ?
HomeBrew August 04, 2012 at 05:13 PM
My four-point peace plan: 1) Council abandons effort to use OS funds for syn-turf; 2) STEM withdraws suit; 3) Council revises OS tax ordinance and interpretive statement to clear up ambiguous language, places revised OS tax question on November ballot; 4) Council puts second referendum question on November ballot: Should Moorestown use OS funds for syn-turf? Interpretive Statement: Problems solved!
MotownFan August 04, 2012 at 07:31 PM
Could someone please explain the ambiguity in the interpretation?
Grass stains August 04, 2012 at 09:20 PM
I thought the interpretive statement was wrong then and now? Come on where mh and that small coalition to rebut this?
Tom August 04, 2012 at 09:47 PM
Why would STEM withdraw their lawsuit now? They might not like the outcome but they got their answer and the use is legal according to the judge. The question of if the lands are eligible is undetermined still.
Roger August 05, 2012 at 12:36 AM
I apologize in advance as I have not read the judge's ruling, however I would not think that the judge ruled on the legality of the issue, just that there was insufficient grounds to support the injunction. I believe that the issue of "legal uses" is yet to be determined. I believe it is that issue that is causing our mayor to take pause. Should the open space funds be used and the decision from the lawsuit determines that it is improper usage, then the township may be obligated to replace those funds. Not a legal mind by any stretch but that is the way I "interpreted" it.
Tom August 05, 2012 at 12:58 AM
Roger, this is what is written above “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.” I assume the quotes are from the ruling but defer to Patch.
MotownFan August 05, 2012 at 05:46 PM
Will Mr Testa get a public apology from the group that sued and has been attacking his character for months? He should.
Ed Nice August 05, 2012 at 07:20 PM
Nice question Fan!! Considering I would think that part of Mr. Testa's business model is to rent his indoor facility for lacrosse or other sports, which normally happens when out door fields aren't available because of over use or rain, I would think his willingness to move forward with this kids project will cause is rentals to go down. I would think a guy looking to rent field space would want the local fields to be in as bad a shape as possible. But of course the OSer's want to try and twist that around. Sounds to me he is willing to sacrifice what is good for his business for what is best for the town, in my opinion!
Townie August 05, 2012 at 08:14 PM
Ed, Since we're making up assumptions....maybe the new fields allow increased traffic through larger tournaments. Which in turn increases the utilization of his space during bad weather, making it more competitive to book and driving prices up. The fact that he voted on something you agree has the potential to effect business is a problem. If you're right, his ethics are wrong.
Stain remover August 05, 2012 at 08:50 PM
What rebuttal do you want? I guess we all could keep this thing dragging right along because these funds may not be used fr "those uses" once January comes. The clock is ticking.
Stain remover August 05, 2012 at 09:22 PM
Ed, don't paint a broad brush on that. Not all OS fans weren't part of that! Be more specific or rephrase that broad statement.
Ed Nice August 05, 2012 at 10:20 PM
Ahhh Stain isn't it OS that is suing the town. If not all the OS fans support what they are doing maybe more of them should have stood up to them and kept the leaders of the OSer's from being so selfish. By the way wasn't Mr. Testa already cleared by an ethics board? Doesn't the naming of Mr. Testa by STEM in this law suit leave them vulnerable to a counter suit by Mr. Testa for malicious prosecution? Not a lawyer, but I'm not so sure it was very smart to name him in the law suit for something he was already cleared of!! Just saying. Townie I don't know how voting on something that will effect his business in a negative way makes him wrong for voting on it. With that thinking I don't think anyone could vote for the library because they may send their kids there to read a book, or how can they vote on the town hall. they may go there to pay a bill. Obviously that is stupid to think. It would be pretty hard for any council person to vote on anything when they live in that town. Someone could always try and argue that they could get a benefit by making that vote. I may agree with you Townie if he was the one promoting the tournaments. To my knowledge he has only been one of many vendors at these tournaments. Then again I'm not around them nor am I involved with them. Just thinking out loud!
Open spaces August 06, 2012 at 02:01 AM
I agree Ed when can we pay bills online?
G. Williams August 06, 2012 at 05:38 AM
Ed, If you listened carefully to what Baron, the attorney representing MSOS/STEM said, the ethics board never took the full case on the charge against Councilman Testa. Bill Kearns, the boards attorney, cited what he determined was a similiar case where the charge was dropped. Maybe that set a precedent for them since it ended there. However, the case was refiled with the AG's office, and there it sits. Your interpretation that it negatively affects his business is your opinion, of course. But, no public official should ever vote on a bond, resolution or contract where there is any personal conflict or financial gain in any way attached to it. Even the perception of conflict is sometimes enough when you are a public official. At the very least, full acknowledgement of any potential for conflict should have been divulged and reviewed by legal council prior to any vote. And, good councel would advise you to back away.Comparing this case to an elected officials child using the Library or Town Hall he voted on is lame, unless that child is hired by the Library because of it. If MT is a vendor who sells equipment to players in a sport he just voted to improve and/or expand, then he benefits through their appreciation of his efforts on their behalf, and he profits from the sales. I don't know if that is precisely the case here, but you yourself say he is a vendor. In fairness, it will heard and ruled on.

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