Source: http://www.northjersey.com, January 5, 2014
By: Karen Sudol
The owner of a proposed residential development off Soldier Hill Road is claiming that borough officials and residents have engaged in a false, yearslong campaign to preserve the land — even referring to it as pristine open space knowing that it served as a dump for household waste.
Officials, however, say they have done nothing to impede the remediation of the property and that neighbors have a right to object to the project. The result has been a protracted battle of wills that has served as a political issue during local elections; proved costly to both sides because of litigation; and led to the formation of a neighborhood group that sought to prevent the land from being developed. “I have never come upon anything with this fact pattern,” said Craig Johnson, the attorney representing owner Shamrock Creek LLC. “When have you seen a developer trying to remediate a property that the DEP and the borough are trying to prevent from being remediated?” Borough Attorney Paul Kaufman took issue with Johnson’s statements. “The borough has never done anything to stop them from remediating the property,” he said. “There isn’t a scintilla of evidence to support that wild allegation. We want them to clean it up.” He added that Shamrock Creek had an application pending before the Zoning Board of Adjustment and “never proceeded with it.” Department of Environmental Protection officials said Shamrock Creek should contact the agency with any concerns about approvals tied to the cleanup and construction of the site. The problems began almost as soon as Shamrock Creek, which bought the 35-acre parcel in 2002, signed a contract with developer JDME Acquisitions to construct a 144-unit housing development for adults 55 and over on a 35-acre property. JDME and Shamrock Creek planned to remediate the contaminated site, which called for an estimated $2 million capping to prevent contaminants from being released into the groundwater. The site is contaminated with arsenic, lead, barium and zinc. An 18-acre portion served as a dump for household waste between at least 1947 and 1957, according to court documents. A recent tour of the property revealed vast amounts of glass bottles embedded in the soil as well as rusted oil cans and slabs of concrete. Borough officials initially seemed supportive of the development plan in the mid-2000s, according to Johnson, but then changed their minds due to neighbor opposition. That was followed by the borough filing a lawsuit against Shamrock Creek and JDME in 2006, contending the company had failed to comply with a 20-year-old agreement with a previous owner that precluded development of the property. About a year later, the borough tried to acquire the land to use as an extension of Reid Park with playing fields but that fell through because of complications seeking state Green Acres funds. A state Superior Court judge in 2008 determined Shamrock Creek wasn’t bound by the 20-year-old developer’s agreement and the project could move forward. An appellate court sent it back, saying a planner’s testimony was necessary. But the state Superior Court ultimately reached the same conclusion. Shamrock Creek sought variances from the zoning board to build the residential complex. However, it adjourned a fifth hearing date to revise its application and has not returned before the board. That board administratively dismissed the application last year, Johnson said.
On the cleanup front, Shamrock Creek sought DEP approval to rehabilitate the dump, which comprises 65,000 cubic yards of garbage or 7,000 truckloads, according to Johnson. While a remediation plan has been approved, the developer was denied stream encroachment and freshwater wetlands permits because the project would encroach on a required 300-foot buffer to the stream that feeds into Soldier Hill Creek. That creek runs into the Oradell Reservoir, which serves as a drinking water source. “Our hands are tied,” Johnson said on moving forward with the cleanup. “The purpose of the buffer is to protect the stream from contamination but what they ignored was that this part of the buffer is a dump that is contaminating the stream. They’re preventing us from taking care of the environment.” The owners appealed the DEP’s decision twice, including to the DEP’s commissioner. After the commissioner agreed that the development would disturb the area near the brook, Shamrock Creek contested it at the state Appellate Division. In 2012 the company also filed suit against current and former borough officials and the two founders of Save Paramus Wetlands alleging that the borough was responsible for the dump and should pay for its cleanup. It also claimed Save Paramus Wetlands manipulated public opinion by touting the property as pristine when it is contaminated and through its name — the wetlands area was not part of the development plan. The lawsuit seeks $14 million in damages for what it would have received from the sale of the 35-acre property to JDME, which planned to build the units but later backed out. That suit is currently in mediation. “The problem is nobody knows the truth” about the extent of the contamination at the site, Johnson said. “How frustrated would you be when all you want to do is clean up somebody else’s dump and get your money?” Kaufman said there has been no evidence presented by Shamrock’s attorney to prove that the area had served as a municipal dump. The borough attorney also said the residents in the surrounding neighborhood who are opposed to building on the property “have a right to do so under the law.” Mark Distler, co-founder of the Save Paramus Wetlands group, was unavailable for comment. Johnson also noted that taxpayers have paid a hefty price over the years in legal bills related to the development. For example, bills submitted by Dennis Oury, the former borough attorney who had represented Paramus in the lawsuit against Shamrock Creek in 2006, totaled $63,000 and that does not include the appeals, Johnson said.