Protection for town at issue in land deal
BY KATHY BARATTA
Staff Writer

MANALAPAN - Stuart Moskovitz contends he did nothing wrong in his capacity as Manalapan's township attorney in 2005 when he prepared a contract of sale for property the township bought in order to settle a legal matter.

Meanwhile, municipal officials said they have now hired a special attorney to review the entire issue.

The property in question is expected to be used in conjunction with the expansion of the Manalapan Recreation Center, Route 522.

Moskovitz said he believes he is being made a scapegoat over a matter that has Manalapan on the line for the cleanup of petroleum hydrocarbons and pesticide contamination that have been found on the property.

The township purchased two parcels on Freehold Road (Route 522), the Herbert house, 95 Freehold Road, for $432,000, and the Dreyer house, 93 Freehold Road, for $465,500. Manalapan, represented by Moskovitz, closed on the sale of both properties on May 27, 2005. The properties are in front of a portion of the recreation center.

Helping to defray Manalapan's costs was the promise of $250,000 from the Monmouth County Municipal Open Space Grant Program and about $270,000 from the state Green Acres program, according to Mayor Andrew Lucas.

Lucas said Manalapan is due to receive the county's money in about a month. He said the Green Acres money will not be paid to Manalapan until the state Department of Environmental Protection (DEP) certifies the township's remediation of the property and issues a No Further Action letter.

When asked to comment on whether Manalapan is planning to sue Moskovitz for his role in drawing up the 2005 contract of sale on the two parcels, Lucas said the only comment he could make now is, "We have retained special counsel to look into this matter."

Asked how much money has been allotted to pursue legal action or how much the remediation costs for the property are being estimated at, Township Attorney Caroline Casagrande would only confirm Lucas' statement with her own observation that Manalapan is "keeping all of its options open" with regard to the matter.

Casagrande said the matter is the subject of possible litigation and said she did not think it would be prudent to discuss any money that may have already been spent or any future estimated costs.

"We are attempting to look at all avenues available to us and money for us is strategy," Casagrande said.

Moskovitz said that according to a 2004 state Superior Court order which settled litigation brought against Manalapan by the Dreyers and several other parties, the township would have had to buy the Herbert and Dreyer tracts regardless of whether there was contamination found at the site.

"Even if we had found contamination I don't know that we could have done anything to back out. How do you back out of a court order? There was a court order in 2004 that forced us to take the property. All I did (in 2005) was the paperwork," he said.

Township engineer Greg Valesi said the contamination was discovered when a preliminary assessment of the property which is part of the Green Acres qualification process was undertaken after the township took possession of the property.

Moskovitz said the 2004 court order that required Manalapan to purchase the two properties was prepared by Donald Lomurro, who was the township attorney in 2004. He said Lomurro had not included an environmental contingency in the court order.

When contacted by the News Transcript, Lomurro said when he left as township attorney and Moskovitz took over in 2005, "the Dreyer matter was still open."

Lomurro said when he left, the amount for the purchase of the properties had not been agreed upon and "there was just the willingness between the Dreyers and the township to settle the case."

"When I left, the amount of the purchase and the terms of the contract had not even been discussed," he said.

Lomurro said any legal review and action regarding the terms of the contract of purchase between Gus and Linda Dreyer and Manalapan would have been Moskovitz's responsibility.

Lomurro said he wanted to make it clear that he had never seen the contract of sale that Moskovitz drew up for the purchase of both properties.

When asked if an environmental contingency clause should have or could have been included in the contract, Lomurro said, "I would have expected that all reasonable terms including environmentals would have been addressed in the contract. One would expect that before any closing all actions would have been taken to make inspections. I would have expected him to do that."

Moskovitz contends that an environmental clause would have been moot because Manalapan was under a court order to purchase the properties "no matter what we found."

Lomurro responded to that, saying, "An environmental clause would have held up and would have been a contingency provision that the town could have used to negotiate."

According to Moskovitz, one reason he did not include a specific environmental clause in the purchase contract was because Birdsall Engineering, the township engineer at the time, had done an examination of the property prior to the closing and found there to be no contamination from the underground oil tank on the Dreyer property.

Conceding there is now an identified Total Petroleum Hydrocarbons (TPH) contamination issue, Moskovitz contends that contamination occurred after Manalapan took possession of the property and filled an oil tank that had been installed in the basement of the Dreyer home after the Dreyers abandoned the underground tank in 1995.

According to Moskovitz, a pipe in the basement tank allowed oil to leak into the basement after the township filled the tank in order to heat the empty house. That, he said, resulted in the soil contamination that was eventually discovered around the Dreyer home.

Moskovitz said the abandonment of the underground tank by the Dreyers in 1995 was overseen by township officials with the tank being pulled from the ground, cleaned and then left at the site.

Valesi said Moskovitz's information is incorrect on several counts. He said the work involving the abandonment of the underground tank was done by a private company, that the job had not been done properly and that the work had not been inspected nor approved by any township personnel.

"The biggest issue is that the tank, prior to [the Dreyers] abandonment of it, had rusted and holes developed," he said.

Valesi said a "proper" inspection would have revealed that the tank was leaking.

"Even the abandonment of the tank should have been done under the jurisdiction of the code official," Valesi told a reporter. "The construction code official was never asked to oversee the abandonment."

A Birdsall Engineering report dated May 26, 2005 states that "no permits or information regarding the abandoned underground storage tank were provided by the (township) construction department."

According to Valesi, the tank has since been removed by the township. He said it was during the removal of the tank when it was revealed that the soil contamination from the release of the TPH exceeded the allowable DEP threshold of 10,000 parts per million.

According to Valesi, the initial investigation indicated the TPH levels to be 23,000 parts per million "within the footprint of the abandoned in-ground tank and as it was so close to the house they got nervous and pulled it out."

As to Moskovitz's assertion that Birdsall Engineering said there was no indication of concern regarding possible contamination from the underground tank, Valesi said, "On the contrary. Birdsall had said there were two areas to be concerned about," referring to not only the heating oil contamination in the immediate area around the house, but also the possibility of historic pesticide contamination due to the fact the property had been an operating farm.

According to Valesi, there is an "exceedance of DDT levels set by the DEP in a localized area," explaining that he meant an area in the "farm field." He did not have the levels of pesticide contamination available at the time of interview.

"Birdsall Engineering did Phase One for the property and identified areas of concern and it was up to the buyer to do further investigations," he said.

A copy of the Birdsall Engineering report obtained by the News Transcript dated May 26, 2005 states that the Dreyers had completed a questionnaire stating that the abandoned underground tank had been "emptied, cleaned and filled with sand after approval inspection by the township inspectors in 1995."

The Birdsall report goes on to state, "... However, it is recommended that the underground storage tank be excavated and removed in accordance with applicable procedures in order to ensure that a historic release of fuel oil from the underground storage tank did not occur."

Drew Shapiro, who is running for a seat on the Township Committee this year, was on the committee when Manalapan closed on the property in 2005. Shapiro was the only member of the governing body to vote against the purchase of the property for the amount paid and said he did so because he believed the township was overpaying.

"I was against the acquisition from the start because it was close to $1 million for a little more than an acre and now it's found to be contaminated," he said, adding that he blames Moskovitz for not properly indemnifying Manalapan when he drew up the purchase contract.

"It is my belief that in closing on any property that had an oil tank there should have been a No Further Action letter obtained from the state to protect the buyer. I believe the attorney's job is to protect his client even if it means delaying the closing to make sure the taxpayers were not paying for land that was contaminated," Shapiro said.

Responding to Shapiro's assertion that he made mistakes in developing the contract of sale in 2005, Moskovitz said, "I couldn't legally say, 'if there's an environmental problem we can void the contract.' "

Moskovitz said, however, that he included a clause in the contract that afforded Manalapan all the protection he believed it needed.

According to Moskovitz, since the township was going to be receiving state funds under the Green Acres initiative to help buy the Herbert and Dreyer properties, he included a clause in the contract of sale that indicated the contract would be "null and void" if Manalapan was not able to qualify for Green Acres funding.

"I did the most I could do in the contract of sale by requiring Green Acres itself to give approval which requires environmental approvals," he said.