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City officials illegally withheld those records from 62-64 Main Street LLC, a company that owns property in the zone, through “baseless denial,” Assignment Judge Peter Doyne said in a decision released yesterday.
The requests were “clear and unambiguous,” and both city officials and their lawyers “were aware of the specific records being sought,” Doyne found. As a result, he said, they must “promptly provide all the requested invoices and records.”
The judge also ordered the city to reimburse the LLC for its attorneys’ fees but refused to fine anyone, saying it wouldn’t serve the interests of justice.
Doyne warned city officials, however, that “such delay and obstruction in the future may be redressed by the imposition of a sanction.”
The trouble began in August 2008, when the city designated a two-block area near the Bergen County Courthouse “in need of redevelopment.” The area included 62-64 Main Street.
The company’s principals — Michael J. Monaghan and his wife, Joan, and Frank and Danny Callahan — challenged the designation, which would have allowed the city to set restrictions on how they developed the property. A Bergen County judge later vacated the move based on a lack of adequate notice.
A state appeals court overturned the local judge’s ruling, after which the city Planning Board in early June 2011 declared all of downtown in need of redevelopment. Two weeks later, the City Council adopted a resolution approving the redevelopment designation.
On Aug. 22, 2011, Danny Callahan asked city officials for a copy of the council’s resolution.
Debra Heck, the city custodian of records, responded that “[n]o record exists,” Doyne wrote.
The LLC again went to court, leading to a May 2013 ruling by the state Appellate Division vacating the redevelopment designation “because the municipality did not first make a determination of actual blight,” Doyne noted.
City officials have appealed that decision to the state Supreme Court.
As the case wended its way through the courts, the City Council adopted a rehabilitation plan aiming to “revitalize the downtown area through the development of high quality architecture designed from the street up which includes improved infrastructure, streetscape and a hierarchy of parks and open spaces to support a business friendly atmosphere,” the decision issued yesterday says.
After the LLC challenged the move, Joan Monaghan submitted an OPRA request on April 24, 2013 for several records “pertaining to invoices and purchase orders submitted by law firms and consultants, and payments made to law firms and consultants” directly related to the investigation, pursuit and designation of the redevelopment plan.
These were to include any and all services rendered to both the Planning Board and City Council as they moved toward the plan, as well as the legal newspaper notices advertising the June 8 Planning Board meeting and June 21 Council meeting, Doyne’s decision says.
On May 1, 2013, Craig M. Pogosky, an attorney for the city, denied the request in writing, deeming it “vague and unclear.”
He “requested clarification of the term ‘consultants’ and which designation of an ‘area in need of rehabilitation’ was referred to,” Doyne wrote.
A letter subsequently sent to the LLC in June included “certain bills,” the judge added – a move that played a role in his decision.
Doyne said it was “disingenuous” of city officials to call the LLC’s OPRA request “vague and unclear.”
At the time, Pogosky’s firm was also representing the council and planning board in the challenge to the rehabilitation plan, the judge noted.
Given that the same lawyers were working the rehabilitation battle and OPRA requests, they “must have been reasonably aware of” and had “a familiarity with and understanding of” the documents sought, Doyne found.
He also rejected city officials’ request for the LLC to be more specific about which area they were referring to, noting that the OPRA request “specifically refers to the ‘Main Street Rehabilitation Area’.”
What’s more, he said, city officials’ request that plaintiffs “clarify what is meant by ‘consultants’ rings equally hollow.”
The fact that the city attorneys provided some invoices from an urban planner “demonstrated an understanding” of what constituted “consultants” and what the LLC was entitled to under OPRA, Doyne said.
On top of that, the judge said, city officials “strain reason” by insisting that the LLC clarify what it meant by the phrase “records pertaining to.”
The phrase “invoices and purchase orders” refers to “identifiable government records,” Doyne wrote. “Those records ought to have been provided.”
There’s more: Pogosky argued in court that “an ambiguity exists concerning the relevant time period for which the records were requested,” a claim that Doyne rejected based on city officials’ response that “bills and purchase orders for that time period are located in off-site storage.”
“Perhaps the most egregious omission from the records supplied are invoices pertaining to defendant’s counsel’s firm,” Doyne added.
The firm, Zisa & Hitscherich, represented the city in preparing the redevelopment plan, he said.
“At the very least, Pogosky ought to have supplied those invoices,” Doyne wrote.
Although he ruled in favor of the LLC on the key issues, Doyne said sanctions against the city, which the group’s principals requested, “would not serve the interests of justice.”
Noting that the city has new legal representation in the case, the judge said he doesn’t expect further problems.
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