Township seeks damages from atty. on land deal
Manalapan lawsuit claims contamination went undetected
BY KATHY BARATTA
Staff Writer

MANALAPAN - The township has brought a civil complaint against former Township Attorney Stuart Moskovitz.

The suit claims that Moskovitz breached his responsibility to Manalapan when he drew up the contract of sale for the township's purchase of two properties that were acquired in order to expand the Manalapan Recreation Center on Route 522.

Moskovitz was Manalapan's township attorney in 2005.

The lots that were purchased by the township in 2005 are referred to as the Dreyer and Herbert properties. Each lot contained a single-family home fronting Route 522, near Taylors Mills Road. There is now an issue of soil contamination on a portion of the property the township acquired. Municipal officials have said they will pursue a plan to clean up the contaminated soil.

The complaint against Moskovitz was filed in state Superior Court, Freehold, June 14, by the legal firm of Ruprecht, Hart and Weeks, of Millburn, which was hired by the Township Committee to handle the matter. The complaint seeks damages and costs from Moskovitz.

Reached for comment, Moskovitz said he was immune to any retaliatory measures by the township due to the New Jersey Tort Claims Act, which he said indemnifies him and any public official. He said the statute covered him in his duties as township attorney when the deal on the property closed.

"I cannot be sued for any damages resulting from an exercise of discretion," he said. "The Township Committee should have been told about the Tort Claims Act prior to spending one nickel on this case."

The filing of the complaint was accompanied by an Affidavit of Support from attorney Robert Renaud, of Cranford, who presented himself in the affidavit as a legal expert in such matters.

Renaud states, " ... it is my opinion that Mr. Moskovitz failed to conform to the standard of care for attorneys in his representations of the Township of Manalapan in its purchase of the ... property." He said Moskovitz "failed to conform to the accepted standard of care with a reasonable degree of legal certainty."

In the complaint, Manalapan is alleging that Moskovitz prepared a contract of sale that left the township unprotected and therefore unable to seek remuneration for the expense of an underground oil tank removal, the soil remediation costs incurred by cleaning up the heating oil contamination, and the cost of cleaning up some farm field pesticide contamination that was also discovered.

Moskovitz has said that a 2004 court order that settled litigation brought against Manalapan by the former owners of the Dreyer tract forced the township to buy the Herbert and Dreyer tracts regardless of whether there was contamination of the site. He has said he believes that the contract of sale he prepared afforded Manalapan all the protection the township needed.

The litigation filed by the township against Moskovitz states that as Manalapan's township attorney in 2005 he was "vested with the responsibility to act on the town's behalf" and that he breached his responsibility due to the fact that the contract of sale he prepared for the purchase of the Dreyer tract " ... does not contain a clause stating the township's contractual obligation to purchase the Dreyer property is contingent on the findings and recommendations of a preliminary site assessment on the Dreyer property or that the township's contractual obligations are subject to any environmental inspection of the Dreyer property stating that the property is free of contamination and therefore fit for public use or other similar provisions standard in such contracts."

Moskovitz has contended that the township received all needed protections from the standard clause contained in the contract he prepared.

Manalapan purchased the 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, respectively.

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.

According to township engineer Greg Valesi, officials became aware of the contamination after a preliminary assessment of the property - necessary to the Green Acres qualification process - was started after Manalapan owned the property.

According to the complaint against Moskovitz, Manalapan took possession of the property on June 8, 2005.

The complaint states that two months prior to the closing, Moskovitz received a memo from former township administrator Alayne Shepler on April 15 in which Shepler directed Moskovitz to hold off on the closing of sale of the Dreyer property.

The News Transcript was not able to obtain a copy of that memo by press time Monday.

According to the complaint, "Ms. Shepler explicitly stated in her e-mail to Mr. Moskovitz that obtaining the preliminary assessment was a condition of the Green Acres grant" and that Moskovitz " ... went forward with the closing on the Dreyer property despite Ms. Shepler's request that he hold off on the closing until Ms. Shepler received the preliminary assessment from Birdsall Engineering and despite his independent obligation to obtain the report before closing."

Valesi previously told the News Transcript that a "proper" inspection would have revealed that the oil tank was leaking into the soil.

According to Valesi, the abandonment of the oil tank by the prior owners should have been done under the jurisdiction of the township's code official, however, the code official was never asked to oversee the tank abandonment.

In an effort to seek redress against the private contractor who was hired by the previous owner to dispose of the underground tank, there are several John Does as individuals and one as a commercial entity that are named along with Moskovitz as defendants in the matter.

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." The report also states that the previous owners 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."

Manalapan will not receive the Green Acres money until the state Department of Environmental Protection (DEP) certifies the township's cleanup of the property and issues a No Further Action letter.