I had to file a lawsuit against the Borough of Seaside Park, because they failed to timely respond to a request for documents under the Open Public Records Act (OPRA) related to a lawsuit they recently settled with a politically connected resident.
Toms River GOP Chair Sued When He Didn’t Get A Variance
Seaside Park resident Juan Bellu, who is the chairman of the Toms River Republican Club’s board of trustees and that township’s municipal utilities authority, sued the Seaside Park Planning Board after they denied his application for a variance on his Sixth Avenue home.
According to court documents, Mr. Bellu along with wife Amy filed suit in Ocean County Superior Court after being denied the variance after an August, 2015 hearing before the planning board. Bellu requested and was denied a variance for driveway width, front setback, lot coverage, accessory side yard setback, accessory building height, and accessory building area.
Bellu’s attorney, Anthony Pagano, argued that the variances were necessary “… for the alleged expansion of a pre-existing non-conforming use in the R zone.”
Mr. Pagano claimed that the planning board’s denial of the variance was “arbitrary, capricious, unreasonable, and wholly unsupported by the record.”
After working its way through the legal system, court records indicated that the Bellu suit was settled this summer.
The New Jersey Superior Court’s online Automated Case Management System (ACMS) public database indicated that Bellu’s lawsuit was settled in late July of this year, with a stipulation being filed on July 26th, 2016 with the court.
Shortly after learning of the suit and its disposition, I filed an Open Public Records Act (OPRA) request with the borough to learn more about this case for the purpose of reporting on it here at this website. I initially attempted to file the request via email, but my email was quickly bounced back, as the Seaside Park clerk’s office email address that was publicly listed apparently doesn’t function.
Seaside Park Hasn’t Provided Settlement Agreement Since July
I then faxed in my request being sure to save the confirmation that it was received by the borough. OPRA provides that a public entity must officially respond to duly formed requests within 7 business days of being received.
There is no question that the documents I requested were public records and should have been readily available to the public. Settlement agreements between public entities and citizens – even if they contain a confidentiality clause – are public record and must be available to the public.
After the Asbury Park Press and John Paff brought a case before the state Supreme Court with respect to settlement agreements in 2010, the court held “A governmental entity cannot enter into a voluntary agreement at the end of a public lawsuit to keep a settlement confidential, and then claim a ‘reasonable expectation of privacy’ in the amount of that settlement.” Asbury Park Press v. County of Monmouth, 986 A.2d 678, 679 (N.J. 2010)
While the borough did not say that they are withholding access to the settlement agreement, their failure to respond within 7 business days constituted a denial of my request, in accordance with established OPRA case law.
At that point, I was left no choice but to sue, since my right to access public records was violated. My attorney, CJ Griffin, of the firm Pashman Stein Walder Hayden filed the following complaint on my behalf. Ms. Griffin is also the author of the NJ OPRA Blog, an informative website that provides information regarding new developments in OPRA litigation around the state.
The Rozzi Lawsuit
After the chambers of Ocean County Superior Court Judge Craig Wellerson contacted Seaside Park Borough Attorney Steven Zabarsky to advise him of the Order to Show Cause filed in my suit, the Toms River lawyer said in a letter that the borough’s custodian of records, Karen Barna, “…does not have a copy of your initial OPRA request.”
In his correspondence, Mr. Zabarsky also provided a copy of the lawsuit that was served on the borough in the Bellu case, which I originally asked for in my OPRA request, but he stated that neither he nor Clerk Barna, the borough’s designated custodian of records, was in possession of the settlement agreement, and that he would have to contact the planning board attorney in order to get a copy.
I find the claim that they were never aware of my initial request questionable, as after I did not hear back since July 30th, I made two separate followup phone calls to the clerk’s office in the weeks following my initial request, and the employee that answered the phone pledged that I would receive an answer, but I never received any call back or written response to same.
For good measure, after my phone calls, I sent in a fax advising that if I did not receive a response I would pursue legal action, and again I received no response from the borough.
Was It Mismanagement Or A Cover-Up?
At best, if we were to give the Seaside Park Clerk’s Office the benefit of the doubt, the clerk’s office is mismanaged, and alarmingly so, borough officials are not aware of or somehow unable to comply with the statutory requirements of the Open Public Records Act, which would be extremely concerning.
At worst, given their reluctance to respond, one could reasonably speculate that there’s something in that settlement agreement they don’t want the public to see. Both Zabarsky and the members of his law firm along with Mr. Bellu are key players in the Toms River and county GOP establishment.
As of the time of this article, neither myself nor my attorney have received a copy of the settlement agreement yet, so at this point there are still more questions than answers.