Supreme Court to possibly step in
By: Bill Greenwood
MONROE Opponents of a land swap that would allow the Board of Education to build a new high school in Thompson Park are asking the state Supreme Court to hear their case.
Richard Webster, an attorney for the Rutgers Environmental Law Clinic, submitted a petition for certification June 20 to the court asking it to consider the matter, according to Tamara Kendig, a spokeswoman for the state Judiciary.
The petition argues that a June 1 decision issued by the Appellate Division of state Superior Court in Trenton misinterpreted the Municipal Land Use Law and conflicted with previous decisions in state appellate court.
The June decision said that land dedicated to a municipality through cluster zoning does not need to be preserved as open space but may be used for any municipal purpose, allowing a conditional state approval of a swap of properties between Monroe and Middlesex County to stand.
The state, through the State House Commission, conditionally approved the transfer of ownership of 35 acres of Green Acres-protected land in Thompson Park in exchange for 175 acres of open land in January 2006. Once final approval is granted, Monroe will transfer the park site to the Board of Education, which plans to build a new high school on the property.
The Rutgers Environmental Law Clinic on behalf of the New Jersey Conservation Foundation, the New Jersey Public Interest Research Group and local group Park Savers filed an appeal in February 2006 seeking to overturn the approval.
On June 1, the Appellate Division ruled unanimously against the plaintiffs on all counts. Among its arguments, the law clinic had argued that the replacement parcels to be given to the county were already protected by Green Acres restrictions as open space.
According to the petition, the appellate court misinterpreted the Municipal Land Use Law by not "ruling in a manner that would have enhanced the provision of open space." The petition states that several of the replacement parcels were obtained through cluster zoning and that land acquired in such a way should be preserved.
"The lower court disregarded the settled expectations of state entities, citizens groups, homebuilders and legal scholars by finding that if the appurtenance, (the open land created through cluster zoning), was dedicated to a municipality, it could be used for any municipal use."
The petition also states that the appellate court’s ruling conflicts with several other decisions made at that level that require Green Acres restrictions to be applied strictly. According to the petition, in the case titled "In re Amendment to Recreation and Open Space Inventory of Plainfield to Remove Park-Madison Site," the appellate court ruled that land diversion proceedings are meant to be a barrier against developing parkland and that "diversion regulations must be ‘strict requirements’ that allow diversion only ‘under limited circumstances and upon definite conditions.’"
The petition also cites a case titled "Cedar Cove, Inc. v. Stanzione" in which the state Supreme Court held that diversion regulations should be interpreted in such a way as to increase the amount of land "dedicated to recreation and conservation." However, Assistant Township Attorney Peg Schaffer said the township does not believe the petition has merit. She said the arguments made in the petition were already addressed by the Appellate Division of state Superior Court in its unanimous decision on the matter.
"They’ve not raised anything new," Ms. Schaffer said. "They’re making the same arguments that were made before the Appellate Division and were rejected."
She plans to file a reply brief by the end of next week, after which the court will decide whether to hear the case.

