A reader sent us the following: an OPRA request for one month’s worth of emails between former Jackson Township Business Administrator Helene Schlegel and Mayor Mike Reina, related to a pending zoning lawsuit against Jackson Township. A simple request, right?
Unfortunately for this requester, these records have left the building. The emails from 2014 were deleted recently pursuant to New Jersey’s Destruction of Public Records Law, which allows government bodies to destroy old records in order to declutter their lives after filing a certificate with the state Division of Record Management.
While the timing of the township’s sudden need to destroy years of records is odd, given the number of legal battles they have just reignited, there is also something that does not spark joy about Jackson’s record disposal filings with the state.
For one, the emails between the Mayor and Business Manager are categorized as “External Correspondence”, despite being entirely internal to Jackson. This is important because other emails may need to be retained for up to seven years.
Secondly, the certificate requires that clerk to sign off that the records in question are not “involved in litigation”, but the request clearly asks for records on the subject of an ongoing lawsuit. In fact, this case is still in the discovery phase, which was just extended by the judge.
With more legal troubles potentially on the horizon, what is Jackson Township trying to get rid of, and why are they doing it so haphazardly?
At this week’s council meeting, Council President Rob Nixon railed against a recent article he claims misrepresented his words (the author of which has responded as well). He also made a simple plea: “Talk to each other”. If you have an issue in the township, it can be solved by “real communication” with “willing partners”.
This statement stands in stark contrast to a sentiment expressed recently by another township head, Mayor Mike Reina: “Game on, gloves off”. After over one year of discussion, Reina and Nixon decided to walk away from an agreed-upon settlement with Agudath Israel about bans on schools, synagogues and dorms, negotiated at practically no cost to the township. Now, after kicking to the curb “communication” and “willing partners”, Mayor Reina sent around an email about the case saying that he is ready to throw down.
The mayor claims this is in the interest of “all our residents”, but is it in the town’s interest to head back into legal and financial uncertainty by putting a case that has come amid somedamningrevelations in the court’s hands and hiring a new legal team on the taxpayer’s dollar while the DOJ and AG hover overhead? Or, given the timing of their sudden change of heart, could this have more to do with Reina and Nixon protecting their political careers after last election season.
In what seems to be headed towards a bruising battle though, both sides are preparing to pull punches. After telling the judge that Jackson has been acting in “bad faith”, Agudath Israel was granted carte blanche to add new charges to their lawsuit in a hearing this week. It remains to be seen what will happen, but this case may get much more complex, especially if the state or federal government decide to join the melee.
A game of tossing around blame has begun in Jackson Township.
Agudath Israel, currently suing Jackson over bans on eruvs, schools, and dormitories, lobbed the first flaming spud last week with a letter blaming the township for unilaterally scuttling the results of over a year of negotiations. The letter to Judge Douglas Alpert, overseeing the case, alleges that the two sides came to an agreement in December that Jackson then ignored and discarded.
Jackson and Agudath Israel were ordered to mediation in August 2017. A few months later, in November 2017, both parties signed a preliminary settlement bringing litigation to a standstill. Jackson would allow an eruv on utility poles while the plaintiffs would not file any motions in court and would “discourage OPRA demands” on Jackson. According to court dockets, since then the parties have met and updated the judge almost monthly as settlement talks progressed on the other matters in the lawsuit.
If one side was to be seen as acting in bad faith, this could definitely raise the ire of the judge who has been spending time on this case for a year and a half. This is exactly what Agudath Israel’s letter suggests, that Jackson participated in negotiation solely to delay the case and seemed to agree to a settlement only to pretend that it never happened. Jackson has yet to throw the blame back, but there is a hearing on March 13th to discuss next steps in the case.
If this sudden turnaround by the township seems surprising, it may actually be a deft political move by Mayor Mike Reina and Council President Rob Nixon. After an election season where everyone was trying to paint each other as being cozy with Orthodox Jews, they may have decided that seeming to support a settlement with Agudath Israel in public would be career suicide.
Possibly Jackson’s politicians felt that any political damage to themselves could be avoided by having a judgement forced on them by the court. Even if the final terms end up worse than those in the settlement they agreed to in December (the judge could, for instance, throw out the ordinances entirely), the Mayor and Council can then point their fingers at Agudath Israel and say they had no choice: “we have to follow what the judge says”. So what if the town ends up with a few more schools or more permissive zoning, they have saved their jobs. Hurrah!
Where it stops, nobody knows
Jackson’s taxpayers have paid little thus far, as Jackson has been using attorneys provided by their insurance. The township’s “free” law firm, Marshall Dennehey Warner Coleman & Goggin, is a large multi-state firm with departments that specialize in RLUIPA litigation. According to his bio, the lead attorney representing the township, Howard Mankoff, “in a precedent-setting decision before the Third Circuit, successfully argued that a municipality can exclude houses of worship in order to facilitate economic redevelopment.”
The hot potato has just been passed to them though. On February 26th, Jackson agreed to pay $800 per hour to hire another lawyer, self-proclaimed RLUIPA expert Marci Hamilton, for a minimum of 20 hours. Jackson’s insurance will not be covering this extra expense: the policy covers damages up to $1 million in court and provides that the insurance firm may hire a lawyer to defend the township (the expense of which comes out of Jackson’s final claim), but explicitly states that “No other obligation or liability to pay sums or perform acts or services is covered.”.
The new lawyer contract is open-ended, and if this case heads back to court then the sky is the limit on how many hours might be billed at taxpayer’s expense. Aside from these new costs, if Jackson loses, the penalties and attorney fees (including those of Mr Mankoff and those of the plaintiff which can be awarded in RLUIPA cases) could easily surpass the $1 million dollar insurance limit. Further complicating things, there is the possibility that the NJ Attorney General and the US Department of Justice will step back in, both having subpoenaed township officials over this case in the past.
But take heart, this is all in service of a noble cause: lessening the political blow-back on Reina and Nixon.
After the lawsuit was filed, Westlake relented on the screened porch, a feature which other houses in the development have as well. However, they asked the court to dismiss the rabbi’s request for access to the gate and construction of a small path leading to the gate as accommodations that these laws do not require them to allow. In an ruling yesterday the judge let most of the counts stand though, dismissing one and consolidating two others, but leaving in counts that would require both the path construction and gate access. The suit will now proceed to discovery and trial unless it is settled first.
Much like for religious beliefs, special arrangements may need to be made to preserve the rights of those with handicaps. The protections provided by the Fair Housing Act require that a disabled person be allowed to make physical modifications to their home and exceptions to housing related policies as needed to “afford such person full enjoyment of the premises”:
(3) For purposes of this subsection, discrimination includes–
(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling;
A recent letter (shown below) sent by an attorney retained by Rabbi Philip Lefkowitz, a handicapped homeowner in the Westlake Golf & Country Club of Jackson, details the rabbi’s travails in trying to get the homeowners association to afford him full enjoyment of his house. If allowed access to an existing gate in a common area, it would enable him to attend religious services without pushing his wheelchair on a busy road. His requests to build a screened porch which could be used for religious observance were denied, despite other houses having a similar porch. And recently, the association bylaws were amended in a manner that would seem to prevent him from worshipping with a group at in his home:
1.38 (New) “Residential purposes” shall mean used solely as a place to live. Holding or conducting regular meetings, presentations, assemblies or other gatherings, to which members of the public are invited, shall not constitute a residential purpose and are prohibited. For purposes of this restriction “members of the public” shall mean individuals other than personal friends and members of a resident’s family.
Now, we’re sure there are perfectly perfunctory reasons for all this: the gate was intended for emergency vehicles only, screened porches are only allowed on some models of homes in Westlake but not others, and the association board had a sudden but unrelated need to clarify the word “residential” in their bylaws.
But to what end does the homeowners association continue to deny what seem like otherwise reasonable accommodations to a disabled resident?
The DOJ’s request focuses more on the recent school and dormitory ordinances and asks for 10 years worth of zoning and planning documents. Presumably this is to determine if the new bans are part of a coherent long-term development plan or created to target land use by a specific religion or group, thus falling afoul of RLUIPA and the Fair Housing Act.
There is a bit of irony here: while these ordinances were being conceived, Jackson actually had their attorneys send their own request to the NJ Attorney General and the US Department of Justice for investigations into housing practices:
They allege blockbusting by the Orthodox Jewish community, a charge which centers in general around real-estate professionals spreading fear in order to lower housing prices. Jackson’s proof? In addition to citing rumor, they give links to two videos of speeches, one where individual Orthodox Jews are encouraged to move to new neighborhoods, and the other in Yiddish (we bet the federal government sent it straight to their language specialists). Hardly compelling evidence that there is a professional effort to scare people from their houses.
We do however feel that there are some peddling panic in Jackson and scaring people into selling. Not the Orthodox Jews moving in, but so-called “strong” and “watchdog” community groups that harp on their every move and constantly invoke hyperbolic statements about the inevitable destruction of Jackson Township.
In response to the Township’s letter, the NJ Attorney General declined to investigate while the DOJ doesn’t seem to have ever responded. In the end though, both turned their sights to discriminatory behavior by Jackson officials themselves.