Lakewood Legislative Slip-Up puts Polluted Property Lease in Legal Limbo

August 7th, 2017
Lakewood Legislative Slip-Up puts Polluted Property Lease in Legal Limbo

[Editor's Note: At 10:39 p.m. on August 8, at 8:52 a.m. on August 9 and at 6:52 p.m. on August 13, 2017, this story was edited for style, content and accuracy.

This is Part 2 of a three-part series.]

Legal problems for public officials of New Jersey's fastest-growing municipality are multiplying as quickly as the township's population.

On November 10, 2016, members of the Lakewood Township Committee acted to expedite a request for public property at minimal cost.

Instead of complying with state code that requires municipalities to adopt an ordinance on second reading for the lease of public property to a non-profit organization for a public purpose, members of the Lakewood Township Committee adopted a resolution to approve it.

Eight months later, township tenant Chemed (Center for Health Education Medicine & Dentistry), a non-profit corporation providing much-needed low-cost healthcare services to the public, accelerated development of taxpayer-owned property by deforesting it on Monday morning, July 24, 2017.

A tree removal service hired by Chemed reportedly cut down most of the trees on Block 1064, Lot 3 without a township-required permit, insurance or soil samples taken of the contaminated property undergoing state-authorized remediation under the N.J. Department of Environmental Protection (NJDEP), according to the e-mails a reporter for NJ News & Views received under OPRA.

The e-mails also reported that several hours later that same day, Lakewood Township Attorney Steven Secare, in consultation with Chemed Project Manager Shaya Brezak, prepared a license agreement for Chemed officials to sign so that the township lessee would not be held accountable for its' violations of local ordinance.

Township officials also provided a completed NJDEP Receptor Evaluation Form, signed on February 14, 2012 by Lakewood Municipal Manager Michael Muscillo and prepared five years ago by Project Manager Paul Kenny of Remington & Vernick, in place of a current soil testing report of the landfill undergoing remediation that Chemed disturbed last month by deforesting it.

The lease agreement that 2016 Lakewood Deputy Mayor Aisik (Isaac/Albert) Akerman signed with Chemed on November 22, 2016 required the non-profit healthcare provider to observe all local, county, state and federal law - including Lakewood's Protection of Trees Ordinance.

Popularly known as the township's Tree Save Ordinance, it calls for a fine of up to $2,000 per tree per day for removal of trees without a permit or a development board approval. The permit must be prominently displayed on all construction vehicles involved in the tree removal operation.

Although a typed copy of the license agreement Secare prepared was included with e-mails Brezak exchanged with township officials, "Chemed" was printed by hand at the top of the boilerplate document.

Dr. Dovid Friedman, Chief Executive Officer, signed the agreement for Chemed, with Brezak witnessing. Lakewood Municipal Manager Thomas L. Henshaw signed for the township, with Lakewood Township Clerk Katherine Hutchinson witnessing.

No elected representative of the local governing body signed the document because no public action was taken to approve it at a publicly-noticed meeting of the Lakewood Township Committee.

The Lakewood Township Committee is next scheduled to meet in the municipal building auditorium at 7:30 p.m. on Thursday, August 10, 2017.

The license agreement with Chemed, signed July 25, 2017, may be just as nonbinding as the resolution Lakewood committeemen approved on November 10, 2016 to lease Block 1064 Lot 3 to Chemed.

Under the 2009 New Jersey Code, Title 40A - Municipalities and Counties, 40A:12-14 addresses how county and local governing bodies should take legislative action to lease real property, capital improvements or personal property.

Section 40A:14(c) sets forth the legislative requirements for New Jersey county and municipal governments to lease public land to a non-profit corporation for public purpose.

The process is not the same for each.

"In the case of a lease to a nonprofit corporation or association for a public purpose, the lease shall be authorized by resolution, in the case of a county, or by ordinance, in the case of a municipality, and may be for nominal or other consideration," according to state law.

State law also requires that the non-profit corporation lessee be accountable to the public that is its' landlord by submitting an annual report of all activities taken on taxpayer-owned property, as well as their cost.

"Said ordinance or resolution shall also require any nonprofit corporation holding a lease for a public purpose pursuant to this section, to annually submit a report to the officer, employee or agency designated by the governing body, setting out the use to which the leasehold was put during each year, the activities of the lessee undertaken in furtherance of the public purpose for which the leasehold was granted; the approximate value or cost, if any, of such activities in furtherance of such purpose; and an affirmation of the continued tax-exempt status of the nonprofit corporation pursuant to both State and federal law," according to http://law.justia.com/codes/new-jersey/2009/title-40a/40a-12/40a-12-14.

As Lakewood has grown in population, so have the needs of its' citizens. Like millions of Americans across the nation, residents of the state's fastest-growing municipality want low-cost, affordable healthcare for all those that need it, not just for those that can afford it.

Chemed officials took a short-cut toward meeting that urgent need.

So did members of the Lakewood Township Committee.

The ends do not justify the means.

The law is the law.

In an undated, typewritten letter released through a July 26, 2017 Open Public Records Act (OPRA) request, Dr. Dovid Friedman, the Chief Executive Officer of the Center for Health Education Medicine & Dentistry (CHEMED) asked 2017 Lakewood Mayor Raymond Coles for public property to open a healthcare facility at the southern end of town, on the same site the township committee already leased to Chemed last year.

According to e-mails received under OPRA, the NJDEP assigned the same number to all blocks and lots being remediated on the site, which the state department refers to as the Hagaman Property. As a result, remediation of Block 1064 Lot 3, reportedly the only remaining contaminated parcel on the site, has delayed development of all other blocks and lots that comprise it - until July 25, 2017, when Chemed accelerated the remediation process.

"The needs of the community are many," Friedman told Coles. "Chemed has obtained a one million dollar grant to establish an additional facility in the south side of Town to assist Lakewood residents. In this regard, Chemed does hereby request that the Manager and Township Committee consider conveying the above mention unused property to Chemed. We understand that the responsibility of cleaning up this property would be on us."

At the top of the correspondence, written by hand, were notes made in response to the request.

According to the notes, the cost of public property ownership may come at a price neither Chemed nor Lakewood taxpayers are prepared to pay.

"Can we Donate?" an unsigned, handwritten note on the Friedman letter asked. "Costs?"