OCAPA’s REPLY to MONICA KOWALSKI’s STATEMENTS AT THE NEPTUNE BOA MEETING 6/2/10

June 2, 2010

Monica C. Kowalski, Esq.

Law Offices of Ms. Monica C. Kowalski, Esq.

509 Main Street, Suite 1

Avon by the Sea, NJ 07717

Re: The propriety of communications between OCAPA and other residents of Neptune Township with the Zoning Board of Adjustment

Dear. Ms. Kowalski:

This letter replies to your letter of April 14, 2010 which was unfortunately mislaid in which you objected to any attempt by residents of the Old Corlies Avenue area of Neptune to communicate with members of the Zoning Board of Adjustment of Neptune Township regarding any matter related to the “1019 Old Corlies, LLC” application, citing the continuing litigation over the matter. Please be advised that I respectfully disagree with your analysis and advice for the following reasons:

First, notwithstanding any litigation, these residents have a nearly absolute constitutional right to communicate with any government officials, including BOA members. The fact of litigation makes no difference whatsoever. Your letter cited to no legal authority for the proposition that there is some “impropriety” in these or related communications due to a litigation. Perhaps you had in mind Rule of Professional Conduct (RPC) 4.2 (“Communications with Persons Represented by Counsel”) which provides in relevant part as follows: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows … to be represented by another lawyer in the matter….” Thus, the RPC applies solely to OCAPA’s attorney, and there have been no communications between this office and members of the BOA. Moreover, in the “Comment” to RPC 4.2, the Court notes a First Amendment exception to this rule even for a lawyer: “Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with a governmental official. For example, the constitutional right to petition and the public policy of ensuring a citizen’s right of access to government decision makers may permit [even] a lawyer representing a private party in a controversy with the government to communicate about the matter with government officials who have authority to take or recommend action in the matter.” (Emphasis added.) In short, if even OCAPA’s attorney has a right to make such communications, then it clearly follows that there can be no impropriety in Neptune Township residents, including OCAPA members or supporters, communicating – or attempting to communicate – on their own with the BOA “to take or recommend action in the matter.” Thus, I urge you to revise your advice to the BOA membership and to release to them whatever communications, petitions or letters that you may have intercepted, held back from them, or advised them to disregard due to a mistaken understanding of the matter.

Second, I must disagree that there is nothing that the BOA has authority to do or recommend be done with respect to the 1019 Old Corlies development project, a jurisdictional decision which, in any event, is for the BOA to determine, though, of course, your input could be solicited on that question. As I understand it, the primary thrust of these OCAPA communications, petitions and letters is their effort to seek the assistance of the BOA in the enforcement of a condition of the 1019 Old Corlies “Resolution of Memorialization” (“ROM”) which reads as follows:

“ADDITIONAL CONDITIONS:

“ALL APPROVALS GRANTED HEREIN ARE SUBJECT TO THE FOLLOWING CONDITIONS….

“n. SUBJECT TO ALL REPRESENTATIONS AND TESTIMONY OF THE APPLICANT BEING TRUTHFUL AND ACCURATE

“o. SUBJECT TO ALL CONDITIONS AS SET FORTH ON THE RECORD AND AS OUTLINED BELOW:”

As you know, OCAPA members and supporters have been stating, and continue to state, that there is evidence to indicate that the above condition “n” was not satisfied. They have cited to potentially false or inaccurate testimony and statements made to the BOA regarding, for example, the justification for constructing an extensive off-site stormwater management system that is (1) disruptive to the Old Corlies Avenue community, (2) may cause a substantial increase in the release (discharge) of “non point” pollutants into the Shark River Brook and Shark River Estuary, and (3) disregards an existing stormwater collection system alternative along Route 33.

Thus, OCAPA’s recommendation that the BOA at least give serious consideration to this important matter and determine its jurisdiction to rescind the grant of variance approvals or take other prudent action – such as referring the matter in the first instance to the Zoning Officer who is charged with investigating zoning complaints; see N.J.S.A. 40:55D-70(a) and Paruszewski v. Tp. of Elsinboro, 154 N.J. 45, 53 (1998) – is an entirely proper act of civic responsibility by these residents of the Township. (See also, Nouhan v. Bd. of Adjust of Clifton, 392 N.J. Super. 283, 291 (App. Div. 2007; permitting appeal to the BOA of any claim that a Zoning Office has erred.) At a minimum, their letters should not have been intercepted and withheld, as apparently occurred at your direction.

In conclusion, I wish to request that you promptly share this letter with the Zoning Board membership so that they will have the opportunity to render their own decision on these issues. I also urge you to release at once any letters or other communications you may have in your possession that were intended for the BOA members.

Sincerely yours,

POTTER AND DICKSON

By R. William Potter

RWP/erd

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