Strategic Envtl. Partners, LLC v. Bucco

184 F.Supp.3d 108

Strategic Environmental Partners, LLC, et al, Plaintiffs,

v.Senator Anthony Bucco, et al, Defendants.

Civil Action No. 13-5032

United States District Court, D. New Jersey.

Signed May 4, 2016

Matthew Michael Fredericks, Matthew M. Fredericks, Esq., LLC, West Orange, NJ, for Plaintiffs.

William Ray Lamboy, New Jersey Department of Law & Public Safety, Robert Joseph Kinney, State of New Jersey, Trenton, NJ, Aileen F. Droughton, Stuart Alan Panensky, Traub, Lieberman, Straus & Shrewsberry, LLP, Red Bank, NJ, Michael Peter Rubas, Law Offices of Michael Peter Rubas, LLC, Jersey City, NJ, for Defendants.

OPINION

John Michael Vazquez, United States District Judge.

This matter comes before the Court on two separate motions to dismiss the Second Amended Complaint of Plaintiffs Strategic Environmental Partners, LLC ("SEP"), Marilyn Bernardi, and Richard Bernardi (collectively, "Plaintiffs"). As discussed further below, this case concerns allegations that all the Defendants retaliated against Plaintiffs and illegally seized Plaintiffs' landfill. Defendants New Jersey State Senator Anthony R. Bucco ("Bucco" or "Senator Bucco"), the New Jersey Department of Environmental Protection ("NJDEP"), NJDEP Commissioner Bob Martin, and former NJDEP Deputy Commissioner Irene Kropp (collectively, including Senator Bucco, the "State Defendants") filed a motion to dismiss the Second Amended Complaint. D.E. 48.¹ Defendants Roxbury Township ("Roxbury"), Fred Hall, and Christopher Raths (collectively, the "Roxbury Defendants") joined the motion. D.E. 53. Defendant Atlantic Response, Inc. ("Atlantic") filed a separate motion to dismiss. D.E. 49. Plaintiffs opposed both motions. D.E. 55, 57. On April 29, 2015, the Court entered an Order requiring the parties to submit further briefing on issues raised by the parties in their motions. D.E. 76. As ordered, the parties submitted supplemental briefing. D.E. 78–80, 82–83, 85–86. Because the motions raise similar issues of law and fact, the Court will consider the motions to dismiss together. For the reasons discussed below, both motions to dismiss are granted.

I. BACKGROUND

A. Factual Background²

This action arises out of a project (the "Project") undertaken by SEP to remediate a landfill in Roxbury Township, New Jersey. Plaintiff Marilyn Bernardi is the sole member of SEP and Plaintiff Richard Bernardi is her husband and an "authorized agent" of SEP. Second Amended Complaint ("SAC") ¶¶ 3–4, 51. Plaintiffs allege that Defendants violated their Constitutional rights, as well as multiple state laws and the New Jersey State Constitution, by interfering with the operation of the Project and by eventually taking control of the landfill. Id. at Introduction.

In 2010, SEP acquired 103 acres of real property in Roxbury Township that was formerly the known as the Fenimore Landfill (the "Landfill" or the "Site"), with the purpose of remediating the Landfill and developing the property as a solar farm. Id. at ¶¶ 13–14, 39–40.³ Shortly after SEP acquired the property, Plaintiffs allegedly began to encounter opposition to the Project from Senator Bucco, the NJDEP, and the Roxbury Defendants. Plaintiffs assert that, while SEP was in the process of obtaining permits from NJDEP to proceed with the Project, Senator Bucco met with Mr. Bernardi and "told Mr. Bernardi that all permit applications related to the Landfill would have to be submitted through Senator Bucco's office." Id. at ¶¶ 49–52. SEP "ignored Senator Bucco's absurd demand ... and declined to involve Bucco in its remediation project." Id. at ¶ 53. Plaintiffs also refused to comply with Roxbury's "demands," that SEP "apply to the Township for permission to undertake the remediation of the Landfill," as SEP believed that permission from the Township was not required. Id. at ¶¶ 54–55.

Plaintiffs contend that these refusals to involve Bucco or Roxbury in the Project "frustrated and angered" Roxbury, Bucco, Hall (Roxbury's Mayor) and Raths (Roxbury's Manager).Id. Plaintiffs allege that the ultimate source of Bucco and Roxbury's opposition to the Project was a fear that Roxbury could be liable for "negligent handling of the Landfill and the houses built around it." Id. at ¶¶ 48, 50. Plaintiffs also allege that Bucco feared Roxbury's potential liability because his son, Anthony M. Bucco, is the Township Attorney for Roxbury. Id. at ¶¶ 47–48. In addition to this fear of potential liability, Plaintiffs contend that Bucco and Roxbury opposed the Project because they believed, "correctly," that the Project would create heavy truck traffic on residential streets and that this would upset local residents. Id. at ¶ 45.

Plaintiffs allege that SEP's relationship with the NJDEP also soured when SEP objected to a provision of the "Closure Plan" for the Landfill. In October 2011, the NJDEP issued a Closure Plan to SEP, which permitted SEP to accept " construction and demolition screenings ("CDS"), a non-hazardous, recyclable material to cap and fill the Landfill. Id. at ¶ 56. "Several months" after the NJDEP issued the Closure Plan, Plaintiffs' objected to a provision of the plan that required SEP to deposit all of its income from "tipping fees" (fees paid to SEP in consideration for accepting NJDEP-approved fill material such as CDS) into an escrow account controlled by the NJDEP. Id. at ¶¶ 56–59. Following SEP's refusal to deposit tipping fees into the escrow account, the NJDEP issued an order "commanding SEP to cease operations at the Site." SEP sought injunctive relief against the NJDEP, but the parties resolved the matter with "an injunction by consent." Id. at ¶¶ 59–60. The resolution was short-lived, however, because according to Plaintiffs, SEP's request for an injunction "incensed and frustrated Defendants Martin, the NJDEP, Bucco and Roxbury," so that "Commissioner Martin and the NJDEP escalated [their] efforts to shut SEP down." Bucco and Roxbury allegedly "joined the NJDEP against SEP." Id. at ¶¶ 61–62.

Subsequently, Plaintiffs allege that Defendants took the following actions as part of their efforts to "shut SEP down":

• Random Inspection and Injunction Application: In July 2012, the NJDEP conducted a "'random inspection' of the trucks entering SEP's Site which was in reality a staged and premeditated arrangement to create the appearance that SEP was accepting asbestos-containing-material," (id. at ¶ 63), and unsuccessfully sought an injunction against SEP on that basis (id. at ¶ 69).

• Truck Stops: Also in July 2012, in response to complaints from residents of Roxbury about truck traffic related to the Project, "NJDEP, Township of Roxbury, Bucco and Martin enlisted the services of the New Jersey State Police to pull over and detain all trucks traveling to and from the Landfill." Id. at ¶¶ 76, 79–80. SEP then obtained injunctive relief "prohibit [ing] the NJDEP from taking any action to prevent SEP from accepting Fill Material at the [Landfill]." Id. at ¶ 89.

• Odor Complaints and Injunction Application: In November 2012, in response to complaints from nearby residents about odor emanating from fill material at the Landfill, the NJDEP and Roxbury applied for an injunction in the New Jersey Superior Court that would prevent SEP from accepting additional fill material until such material was adequately shielded with cover soil. Id. at ¶ 94. The Superior Court eventually denied the injunction application. Id. at ¶ 95. In litigating the issue, however, SEP submitted a Certification to the Superior Court alleging that a conflict of interest had motivated the NJDEP's application for the injunction. The alleged conflict of interest arose because NJDEP Deputy Commissioner Irene Kropp was married to Brian Home, owner of the Mullica Landfill in Harrison Township, New Jersey, a landfill that allegedly competes with SEP for tipping fees. Id. at ¶¶ 97–100. SEP also filed a complaint with the New Jersey State Ethics Commission regarding this alleged conflict of interest in January 2013. Id. at ¶ 101.

• New Year's Eve Injunction Application to Judge Maenza: Because the NJDEP's previous injunction applications had been denied by Superior Court Judge Deanne Wilson, Plaintiffs contend that Defendants conspired to seek relief from Judge Philip Maenza, to whom Bucco "has close personal and political ties." Id. at ¶¶ 105–108. Specifically, Plaintiffs contend that "Bucco and Roxbury enlist[ed] the services of an attorney, Daniel Marchese," who presented Judge Maenza with a Verified Complaint and application for an Order to Show Cause on behalf of Roxbury residents, without notice to Plaintiffs, on New Year's Eve of 2012. Id. at ¶¶ 113–115. Although Judge Maenza signed the Order to Show Cause temporarily enjoining continuation of SEP's Project, on January 2, 2013, Judge Wilson issued an order dissolving the restraints therein. Id. at ¶ 122.

• Interference with SEP's Efforts to Address Odor Complaints: Plaintiffs allege that "Defendants intentionally and maliciously withheld permission for SEP to undertake remedial action, and called upon the State Police to pull over and detain and deter trucks carrying cover soil to the Site, while simultaneously encouraging residents to register complaints about the odor." Id. at ¶¶ 132–133.

• Tax Increase: The Roxbury Township Tax Assessor, "working in concert with Defendants," allegedly raised SEP's taxes by over two thousand percent between 2012 and 2013. Id. at ¶ 136.

• The Legacy Landfill Law: In March 2013, Senator Bucco submitted proposed legislation to the State Senate (S2617) that would give the NJDEP authority to seize SEP's property. After being modified by the State Senate, the proposed legislation contained "a broad, State-wide standard" limiting emissions of hydrogen sulfide (H2S), the compound responsible for the odors emanating from the Fenimore Landfill, for all landfills within the state.⁴ The NJDEP and Martin then proposed amendments which were eventually adopted, and which limited the application of the new H2S standard

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