Dear Mayor Muller and Members of the Borough Council:
Congratulations on the Borough’s long-awaited victory at the Appellate Division in the Matheny case. Thank you for continuing to support the Peapack Gladstone Land Use Board’s thorough and appropriate decisions, and for defending the reputation of our town against false and baseless charges of discrimination by Matheny’s management.
The attached decision of the Appellate Division: (i) affirmed the 28-page decision of Judge Edward M. Coleman of the Superior Court of New Jersey dated August 7, 2013 upholding the decision of the Peapack-Gladstone Land Use Board to deny Matheny’s expansion and use variance application, and (ii) affirmed the 27-page decision of Judge Hany Mawla of the Superior Court of New Jersey, Law Division dated May 22, 2014 granting summary judgment to the Borough with respect to all Federal and State discrimination charges.
I am writing as one of your constituents to request that the Borough prepare and file a motion to dismiss the Federal Court action brought by Matheny’s management, in order to end Matheny’s redundant lawsuits against our town once and for all. It is important that the Borough take this opportunity to end the strife and taxpayer expenses which have continued for over six years.
Although I would hope and expect that this thoughtful Borough Council is already reflecting upon the logic and efficiency of filing a motion to dismiss, since the Borough Council handles litigation matters in Executive Session I do not have visibility into your deliberations. Therefore, I choose to share my thoughts with you in this letter.
It is my understanding that the Borough and Matheny’s management have had settlement discussions, and that a recent Executive Session with the Borough Council and the Land Use Board has been held to consider a proposal. Any privately negotiated settlement by the Borough Council and Matheny’s management which does not include Matheny’s neighbors at the table will not end the litigation, especially in view of the Appellate Division’s definitive ruling. To the contrary, such a settlement will merely open the Borough up to further, new litigation.
The Appellate Division typically issues a 2-3 page decision for appeals of land use board decisions, merely affirming or denying the lower court decision. This 37-page signed opinion, which is likely intended for publication and to serve as precedent for future cases, warrants respect. Furthermore, because there was no dissenting opinion on the three-judge panel, and this case does not seek to resolve a split among the lower courts or constitutional issues, it is highly unlikely that this case would be heard by the Supreme Court of New Jersey even if Matheny’s management were to file an appeal. A lapse of the time to appeal or a final dismissal is likely just months away.
The Appellate Division waded deeply into the record of the lengthy Matheny hearings, and clearly understood the competing interests of the developmentally disabled and of those whose lives and safety would be materially adversely impacted by further Matheny expansion. This includes not only the safety of the children who walk to their school buses in the Highland Avenue roadway but also that of Matheny’s own employees who walk a mile in the Highland Avenue roadway to Matheny’s site from the train station.
The Court supported the well-established standard for review of inherently beneficial use variances embodied in the Sica decision. Without equivocation the Court affirmed that the PG Land Use Board, prior to denying a use variance to Matheny for further expansion: (i) appropriately examined all of the facts, (ii) weighed the credibility of all witnesses, (iii) considered the competing interests of all parties, and (iv) evaluated the feasibility and enforceability of all proposed solutions. Importantly, the Court also affirmed the summary judgment dismissal of Matheny’s discrimination claims under both the relevant State and Federal statutes.
Any further decision by the Federal Court regarding the baseless Federal discrimination charges hurled at our town by Matheny’s management risks an inconsistent decision on the exact same issues which have already been litigated and decided by the State Courts. It is time for the Borough to put an end to Matheny’s forum shopping.
The doctrines of “res judiciata” and “collateral estoppel” are designed to prevent such forum shopping and to unburden our court system by disallowing multiple courts from hearing and deciding the same issues and claims – which is exactly the situation we now face. The only remaining issue unique to the Federal Court action is a claim that somehow the Borough Council’s resolution approving a 30-day tightly-controlled use of Blair Drive for the Mansion in May event showed evidence of discrimination and civil rights violations against Matheny by the Borough. Despite 13 prior actions of the Land Use Board which approved Matheny expansions, and not one shred of evidence of discrimination or discriminatory intent, Matheny’s management chose to besmirch our town’s character.
Peapack Gladstone, including myself and my neighbors, have been incredibly generous and supportive of Matheny’s students, patients and mission for over 50 years, only to find that no good deed goes unpunished. In this case, two good deeds are being punished – 50 years of generous support of Matheny and our generous support of the Morristown Memorial Hospital, by allowing a unique event which raised over $2,000,000 to serve children and patients of that worthy institution.
If Matheny’s management wishes to change its uses and the nature of its proposed expansion entirely, it must do so by submitting a new application before the Land Use Board and not via a Whispering Woods settlement hearing. There is substantial case law that describes the limitations of a municipality and zoning board to settle a land use case; approving an entirely new set of uses and site plan from those originally proposed for the site goes far beyond any authority which would be supported by the Courts. This is especially true when a private contract effectively amends the zoning ordinance, as would be the case if any new uses are added to the Matheny site.
I and other neighbors met with Matheny’s President, Dr. Ken Sprott, its Board Co-Chair, Edana Desatnik, and other representatives for several hours. Subsequent to that meeting we presented a fair and detailed settlement proposal which we believed addressed both their wishes and our concerns. Although over a year has gone by, we have not even had the courtesy of an acknowledgement of our proposal. Instead, Matheny’s management has gone behind and around its neighbors to negotiate with the Borough privately, just as it has gone around the State Court to re-litigate the same discrimination issues in Federal Court.
Nonetheless, I and other members of the neighborhood remain willing to discuss directly with Matheny’s management any solutions that might serve the revised goals of this important institution and work equally well to ensure the safety of its neighbors. We recognize that the landscape of healthcare services is changing and that the State of New Jersey’s move to de-institutionalize the care of the disabled has caused a complete reversal in Matheny’s original plans to increase its hospital size, independent of our opposition to such plans. We continue to believe that there is a mutually beneficial way forward, and that there could be a new application before the Land Use Board which would be supported by the neighborhood. A return of the site to an exclusively residential nature by adding group homes, in return for relocating the facilities and activities which bring outpatient and day traffic, would be one such win-win.
I caution the Borough Council not to overestimate the value of a piece of paper. If the Borough Council wishes to believe that Matheny’s management will adhere to terms and conditions contained in a settlement agreement, it need look no further than the repeated disregard of terms and conditions in past resolutions of the Land Use Board by Matheny’s management. If the Borough Council wishes to believe that Matheny’s management can at long last work in collaboration with the Borough and its neighbors, it need look no further than the fact that Matheny’s management has chosen to ignore its neighbors entirely in the settlement process.
Finally, if the members of the Borough Council wish to believe that Matheny’s management will not attack each of you and your experts personally should you attempt to enforce any zoning violations in the future, you need look no further than that:
- in 2009 Matheny’s management was successful in placing a front page story in The Star Ledger comparing the Land Use Board hearings to the Nuremberg trials, where Nazi war criminals were convicted of heinous crimes,
- in 2012 Matheny’s management sanctioned litigation to contest the amount of Roger Thomas’ fees to punish the Land Use Board’s counsel for drafting a 200+-page resolution that appropriately documented his client’s decision in a manner that could be sustained upon appeal, and
- in 2013 Matheny’s management secretly attempted to have me sanctioned by the New Jersey Bar Association Ethics Committee with spurious allegations of ethical violations.
Fortunately, the Star Ledger columnist’s story masquerading as news had a short lifespan. The Somerset County Construction Board of Appeals affirmed Mr. Thomas’ right to be paid and Judge John J. Coyle, Jr. of the Superior Court affirmed this decision when Matheny appealed it. Thankfully, the attempts by Matheny’s management to intimidate me by threatening my livelihood and attacking my professional integrity (which I learned of only upon being copied on the reply letter from the Ethics Committee to Matheny’s President) were swiftly rebuffed by the Ethics Committee as wholly inappropriate.
I am at a loss to understand how the Borough Council could believe that the imposition of fines or penalties on Matheny for future zoning violations will be effective upon an organization which has institutionalized the practice of personally attacking its perceived “enemies of the state”, and which has repeatedly used the media to spin a false story of discrimination which smears citizen volunteers of the Borough who served as Land Use Board members.
Furthermore, it is not even remotely realistic for the Borough Council to be returning to Court for enforcement, nor would any such action make for favorable news headlines: “PG Borough Council Fines Matheny $10,000 for Serving the Disabled”, followed by “DOJ Investigates PG Mayor and Council for Discrimination Against the Disabled as Fines Mount Against Matheny”. A use or combination of uses fundamentally belongs on the Matheny site only if it can exist without the need for fictional enforcement mechanisms.
Five highly-regarded judges have now considered the facts of this case and written comprehensive and definitive opinions supporting the PG Land Use Board’s decisions. I am requesting that the Borough continue to vigorously defend its reputation against the false accusations of discrimination by Matheny’s management in the Federal lawsuit. Anything less would represent a disservice to all citizens of the Borough, including those who have served the Land Use Board and those who have trusted in our zoning laws and the zoning review process. No settlement will stand which is built on sand, and a settlement without the active participation and agreement of the Highland Avenue neighborhood is just that. Another 6-year court battle will serve not one resident of the Borough.
Editor's Note: The writer represented some of Matheny’s neighbors as their attorney during the Land Use Board proceedings, before turning the representation of those neighbors over to the law firm of Lieberman & Blecher for the litigation. This letter was sent to the Mayor and Borough Council in her capacity as a private citizen only.
Editor's Note: The reader can access the Appellate Division opinion by clicking on the link in the first sentence of the second paragraph of the letter, or by clicking here.