Millburn law firm hired to eye possible negligence
Matter in Manalapan centers around town's purchase of lot in 2005
BY KATHY BARATTA
Staff Writer

MANALAPAN - The township has retained an attorney to examine possible negligence in the municipality's purchase of a piece of property in 2005 - and former township attorney Stuart Moskovitz believes he is being made the scapegoat.

Although the firm of Ruprecht, Hart, Weeks, of Millburn, has been retained for the purposes of litigation, municipal officials still will not confirm that legal action is being taken against Moskovitz regarding his preparation of a contract of sale for property the township bought in order to expand the Manalapan Recreation Center, Route 522.

Moskovitz was Manalapan's township attorney in 2005 when the township closed on the sale of two homes on Route 522 that are in front of the recreation center.

A Township Committee resolution hiring Ruprecht, Hart, Weeks states that the firm was retained to represent Manalapan "... with respect to the client's claim for damages suffered as a result of professional negligence in connection with real estate purchases by the township in 2005. The law firm will pursue the claim of the client with respect to those who may be responsible for the injuries or damages."

Ruprecht, Hart, Weeks is not billing Manalapan on a per-hour basis. The firm has been retained on a one-third contingency basis with a reimbursement for out-of-pocket expenses necessary to any litigation provided for in the contract.

Meanwhile, Moskovitz contends he is being made a scapegoat in the matter that has Manalapan on the line for a cleanup of petroleum hydrocarbons and pesticide contamination that have been found on property that was purchased in 2005.

Moskovitz also maintains that a letter obtained by the News Transcript from the New Jersey Department of Environmental Protection (DEP) is a "fake." He said he has been informed an investigation has been opened by the state Attorney General's Office into how the News Transcript obtained a letter which states the DEP is OK with a remediation plan that was submitted by township engineer CME Associates for an environmental cleanup of the tainted property.

As of Monday, the News Transcript had not been contacted by any state agency in regard to the DEP's letter.

As initially reported in the News Transcript on May 16, the letter from the DEP to Township Administrator Tara Lovrich was faxed directly from the DEP press office to the newspaper on May 11 following a reporter's request about the status of the remediation plan that had been submitted by CME Associates on behalf of Manalapan.

A follow-up call to the DEP by the News Transcript confirmed that the

agency's letter had been mailed to Manalapan.

Township Clerk Rose Anne Weeden said the DEP's letter was received on May 18.

The matter came to the attention of the public during the May 9 Township Committee meeting when former committeeman Drew Shapiro, who is running for election in November, asked for an update on the situation.

The two homes Manalapan purchased in 2005 are known as the Herbert tract, 95 Freehold Road, which cost $432,000, and the Dreyer tract, 93 Freehold Road, which cost $465,500. The township closed on the sale of both properties on May 27, 2005.

Municipal officials and professionals said the qualifying process undertaken to receive $270,000 from the state Green Acres program revealed there was contamination on the Dreyer property from historic pesticides and the leakage of heating oil from an underground storage tank.

Moskovitz maintains that a 2004 state Superior Court order left Manalapan officials with no option but to buy the Herbert-Dreyer parcels regardless of whether there was contamination found at the site.

He contends that even if contamination had been found on the property, he does not believe the township could have backed out of the court order that required Manalapan to acquire the property through a negotiated purchase or eminent domain.

Moskovitz said the contract he drew up was everything it needed to be given the circumstances of the court order and the fact that officials had to choose between acquiring the property in a market-price purchase or in eminent domain proceedings.

He said his negotiations with the Dreyers on behalf of the township resulted in Manalapan paying less for the property by purchasing it than it would have in condemning it in an eminent domain proceeding.

Shapiro claims the contract of sale Moskovitz prepared for the Dreyer home was a "boiler plate" document that did not feature any necessary environmental contingencies.

Moskovitz said a clause in the contract of sale which states that "... the purchase of this property is dependent on funding to be received and/or reimbursed from the state and/or the county governments" is all the protection the township needed in the matter.

Also, the contract of sale states that "the property is being sold 'as is.' The seller does not make any claims or promises about the condition or value of the property included in this sale. The buyer has inspected the property and relies on this inspection."

According to Weeden, the file for the purchase of the Dreyer home indicates no inspections were performed by any township inspectors at the time of the purchase.

Also, a report from Birdsall Engineering, the township engineer at the time, dated May 26, 2005, stated that although the sellers maintained they had abandoned an underground oil tank on the property under the auspices of the township, "no permits or information regarding the abandoned underground storage tank were provided by the (township) construction department." The

report recommended that the underground oil tank be excavated and checked for any problems.

Once the Dreyer home was purchased, the new township engineer, CME Associates, performed an examination of the property which revealed there was pesticide and heating oil contamination.

Asked to comment on the committee's current examinagency's letter had been mailed to Manalapan.

Township Clerk Rose Anne Weeden said the DEP's letter was received on May 18.

The matter came to the attention of the public during the May 9 Township Committee meeting when former committeeman Drew Shapiro, who is running for election in November, asked for an update on the situation.

The two homes Manalapan purchased in 2005 are known as the Herbert tract, 95 Freehold Road, which cost $432,000, and the Dreyer tract, 93 Freehold Road, which cost $465,500. The township closed on the sale of both properties on May 27, 2005.

Municipal officials and professionals said the qualifying process undertaken to receive $270,000 from the state Green Acres program revealed there was contamination on the Dreyer property from historic pesticides and the leakage of heating oil from an underground storage tank.

Moskovitz maintains that a 2004 state Superior Court order left Manalapan officials with no option but to buy the Herbert-Dreyer parcels regardless of whether there was contamination found at the site.

He contends that even if contamination had been found on the property, he does not believe the township could have backed out of the court order that required Manalapan to acquire the property through a negotiated purchase or eminent domain.

Moskovitz said the contract he drew up was everything it needed to be given the circumstances of the court order and the fact that officials had to choose between acquiring the property in a market-price purchase or in eminent domain proceedings.

He said his negotiations with the Dreyers on behalf of the township resulted in Manalapan paying less for the property by purchasing it than it would have in condemning it in an eminent domain proceeding.

Shapiro claims the contract of sale Moskovitz prepared for the Dreyer home was a "boiler plate" document that did not feature any necessary environmental contingencies.

Moskovitz said a clause in the contract of sale which states that "... the purchase of this property is dependent on funding to be received and/or reimbursed from the state and/or the county governments" is all the protection the township needed in the matter.

Also, the contract of sale states that "the property is being sold 'as is.' The seller does not make any claims or promises about the condition or value of the property included in this sale. The buyer has inspected the property and relies on this inspection."

According to Weeden, the file for the purchase of the Dreyer home indicates no inspections were performed by any township inspectors at the time of the purchase.

Also, a report from Birdsall Engineering, the township engineer at the time, dated May 26, 2005, stated that although the sellers maintained they had abandoned an underground oil tank on the property under the auspices of the township, "no permits or information regarding the abandoned underground storage tank were provided by the (township) construction department." The

ation of his actions in 2005, Moskovitz provided a written statement in which he said, "There are only two ways an attorney can protect his client in a situation like this, assuming he was free to write any contract he wanted to write, with no court order. He can put in a clause allowing the client to back out if there's an environmental situation. He can put in a clause charging the seller with the cost of remediation. That's it. Both are covered here.

"First, paragraph 12 says that the sale is dependent on state funding. That's Green Acres funding. Green Acres regulations provide they won't approve funding unless there are no environmental issues. After receiving the (Birdsall Engineering) report in 2005, Green Acres told the township they would contribute to this project. Had Green Acres said no funding because of an oil contamination, the deal would have been null and void, as I said before and, of course, we'd be back in prolonged, expensive litigation."

Moskovitz also referred to a state statute which he contends affords Manalapan all the protection it would need in the matter.

Alluding to litigation the Dreyers had brought against Manalapan regarding the township's placement of Pop Warner youth football fields near their homes - litigation which Moskovitz contends was settled with the 2005 purchase of the property - Moskovitz said his contract saved the taxpayers money.

"The second point to remember is that remediation costs are expected to total about $15,000. Engineering costs involving the inspection are higher, but that's irrelevant, because those are the inspection costs the protagonists are saying we should have incurred prior to the sale anyway. There is no chance that if we tried to back out of the deal we wouldn't be back in court at the very least continuing with the litigation that the purchase was settling - the placement of the football field next to these residential homes," he said.

"There is no chance that we wouldn't have spent multiples of that $15,000 in that litigation. So in reality, this is much ado about nothing, isn't it? The township was harmed by the litigation caused by moving the football field (from the Village Green on Route 522 to the Manalapan Recreation Center), years before, without question. But the township has incurred no net loss whatsoever resulting from any actions in 2005, regardless of who's at fault or what was or wasn't done in 2004 or in 2005," Moskovitz said.

Regarding the Birdsall Engineering report, Moskovitz said, "Finally, as to those belittling the fact that Birdsall's report was a 'preliminary assessment and site inspection' that's not just a first step. It is precisely the inspection required by Green Acres and the county. You need go beyond that only if there is evidence of contamination. At the time, there was no indication that there was any evidence of contamination.

"If it were otherwise, why did no one consider an additional inspection until more than a year later, near the end of 2006? The removal of the oil tank, which could not have been accomplished prior to the purchase of the property, since no sane seller would let you rip up their back yard while they're living in the house, is what triggered the additional inspections."

Township engineer Greg Valesi of CME Associates said the extent of the contamination was discovered during a site investigation by his firm that began in August 2006 and continued in February. The site investigation included the removal of the Dreyers' underground storage tank, soil samples from the area of the tank, as well as samples from a former farm field that were taken at the same time as the tank removal.