ROXBURY, NJ –New Jersey’s top court has refused to overturn a lower court’s finding that the state illegally seized the former Fenimore Landfill in 2013, according to a published report.

In a March 16 order, the state Supreme Court, without comment, denied an appeal made by the state Department of Environmental Protection (DEP), according to Law 360. The DEP wanted the Supreme Court to overturn a November ruling by the state Appellate Division that said DEP Commissioner Bob Martin lacked the authority to take the landfill from its owner, Strategic Environmental Partners (SEP).

The DEP took control of the landfill after material brought by SEP to the formerly dormant dump began releasing noxious hydrogen sulfide throughout Roxbury. The DEP has since installed an impermeable cap over the site to trap the putrid gas which is being burned away on site by a massive oxidizer.

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The Appellate Division found that Martin’s “imminent threat” emergency decree was improper, siding with SEP’s claim that the state should have obtained a judge’s order before seizing the landfill in June 2013. It also agreed with SEP lawyer Matthew Fredericks’ position that the DEP improperly relied on measurements of hydrogen sulfide taken before the new Legacy Landfill Law – written in response to the Fenimore problem – was adopted.

“I think this decision by the Supreme Court indicates the appellate ruling was correct,” said Fredericks, according to the report. “The Appellate Division ruled that the DEP exceeded its authority and caused harm to the property owner when it seized the property without a court order.”

The appellate division ruling that was upheld by the Supreme Court sent the case back to the lower court for further consideration.

As Law 360 noted, a federal lawsuit filed by SEP against the DEP remains active. In that case, according to the report, SEP contends it is unfairly paying the price for imprudent government decisions that allowed houses to be built near the old landfill despite the fact that the dump was never closed in a proper, environmentally sound fashion.

It asserts the developer of the houses politically supported state Sen. Anthony R. Bucco, R-Morris, the father of Roxbury's township attorney, Anthony M. Bucco, a state assemblyman. The senior Bucco penned the Legacy Landfill Law.