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CAPE MAY - Longstanding litigation over the fate of the 100-acre Sewell Tract, in East Cape May, resulted in a mistrial after one witness testified.

The lawsuit focuses on an “amelioration offer” by the state Department of Environmental Protection (DEP), concerning the potential development of part of a tract of land residents and environmentalists argue must remain undisturbed.

Concerned Citizens for Sewell Tract Preservation, a non-profit group, issued a press release Nov. 18. The group has resisted the amelioration order since it was issued in 2014.

The potential developers, East Cape May Associates (ECM), claimed an earlier denial of a permit by DEP constituted a “regulatory taking due compensation.” The 2014 amelioration offer by the DEP would potentially allow for a portion of the tract to be developed, an outcome strongly opposed by Concerned Citizens.

The City of Cape May has a stake in the outcome on many fronts, including the potential cost of water and sewer mains for any development, an outcome that may result from a decades-old decision by the city to support development. The city is formally opposed to the development of the tract, a position it made clear in a 2018 resolution by Cape May City Council.

Concerned Citizens has taken the position that the DEP has sacrificed its environmental responsibilities, concerning the tract, to avoid paying a potentially large sum to ECM for the regulatory taking.

The trial heard direct testimony from one witness, when Judge Christine Smith shifted the burden of proof in the case, causing what she agreed was a substantial prejudice to the plaintiffs, who had been relying on earlier decisions concerning the law of the case.

Smith shifted the burden of proof to the plaintiffs, Concerned Citizens, and away from the DEP. She also set the bar higher than the usual “preponderance of the evidence,” normally the standard in civil litigation.

Smith took over the case in October 2019, when Judge Christopher Gibson was rotated off after five years. She set a new trial date for March 15, 2020.

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