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CAPE MAY - A debate on the Sewell Tract surfaced Dec. 17, at the Cape May City Council meeting.

Concerned Citizens for Sewell Tract President Charles Hendricks urged the city to financially support the non-profit organization’s 5-year-old litigation to prevent development of a 100-acre natural parcel in East Cape May. 

Hendricks rose to the podium, after resident Jules Rauch argued that the city should not consider using taxpayer dollars to support a private organization’s litigation.

A recent court ruling gave rise to this debate when a newly appointed judge in the long standing litigation significantly changed the parameters of the case by altering the burden of proof, placing it on the plaintiffs, including Concerned Citizens.

With a new trial scheduled for March, Concerned Citizens has funded its legal actions largely through private donations. It cannot, according to Hendricks, carry the full burden of the legal expenses any longer.

Hendricks told council that the group spent over $400,000 on legal expenses, money provided by over 100 donors.

The Concerned Citizens lawsuit focuses on an “amelioration offer” by the state Department of Environmental Protection (DEP), which would potentially allow the development of part of the tract. Environmental groups and residents argue that the tract must remain undisturbed.

The city’s master plan identifies the area as a critical part of its flood mitigation, supporting the view that the wetlands need to be preserved.

The litigation predates the entry of Concerned Citizens, involving a 1991 request for a Coastal Area Facilities Review Act (CAFRA) permit to develop a 366-home residential complex on the tract.

A Florida limited partnership, East Cape May Associates (ECM), sought the development permit, which DEP denied. What began then was an odyssey through the courts, as ECM claimed DEP had engaged in a regulatory taking due compensation.

The amelioration offer by DEP, in 2014, was an attempt to settle the dispute without payment by the state. Concerned Citizens entered the picture in an attempt to preserve the entire tract, opposing the DEP offer of partial development.

The city has had several roles to play in this dispute, including early support for development, even agreeing to provide water and sewer service to the tract. That position has changed over the years, with the most recent act being a 2018 resolution formally placing the city at odds with any development of the tract.

In this three-way litigation, ECM appears to be seeking compensation for the regulatory taking, more than a right to develop part or all of the tract.

DEP appears to be trying to avoid payment for any regulatory taking by offering enough of a development potential to rid it of any liability. Concerned Citizens remains committed to its original purpose: preservation of the entire tract as wetlands.

The city, which advocates opposition to development of the tract, has thus far stayed clear of the litigation. At the Dec. 17 meeting, Solicitor Frank Corrado said that the city was considering its position, with respect to the ongoing court case.

Potentially complicating matters further is the fact Charles Hendricks’ wife, Patricia Hendricks, is a member of city council, as deputy mayor, a potential conundrum that has kept her sequestered from closed council discussions on the matter.

Charles Hendricks railed against any suggestion of a conflict of interest as he and Rauch exchanged barbs.

The issue at stake: Hendricks states that Concerned Citizens can no longer “continue this effort alone.”  He argued that there is no problem with the city committing public funds, stating that research done by Corrado affirmed that fact. Corrado did not confirm Hendricks’ statement.

Throughout the discussion, both Hendricks and Rausch seemed to have knowledge of discussions that had been part of closed council sessions, which have not been released to the public.

For Charles Hendricks, “it is time for the city to share” in the cost of the litigation. The alternative, as Hendricks painted it, may be that Concerned Citizens cannot go forward with the March trial.

For Rauch, using taxpayer funds to support a private organization’s litigation is a dangerous step, establishing a bad precedent regardless of the issue.

Corrado said that the city is considering its options with respect to the case.

To contact Vince Conti, email vconti@cmcherald.com.

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