Judge rules against bakery, again

Business claimed Secaucus’ actions cost them more than $5M

A federal judge has denied a motion filed last year by the owners of a Brooklyn-based bakery that had once sought to move to Secaucus, according to town officials.
With the latest motion, the bakery’s owners hoped that the judge would reinstate their civil rights lawsuit against the town after a U.S. District Court decided last summer to dismiss the suit. But on Jan. 24, U.S. District Court Judge William J. Martini rejected a motion of reconsideration that had been filed by David and Edward Mafoud, brothers and co-owners of the Brooklyn-based Damascus Bakery. The wholesale bakery makes pita bread and other items.


The bakery’s only recourse now is an appeal with the Third Circuit Court of Appeals.

“Obviously we’re happy with this decision and we suspect this puts an end to this matter,” said Mayor Michael Gonnelli last week. “Not only will Damascus Bakery not be moving to Secaucus, but the town isn’t liable for the bakery’s move elsewhere.”

Bakery growing, but not in town

The conflict between the Mafouds and Secaucus dates back more than three years, when the brothers decided to relocate their growing bakery to an old warehouse at 10 Enterprise Ave.
In March 2007, Damascus Bakery signed a lease with property owner Hartz Mountain Industries and applied for a zoning permit from the New Jersey Meadowlands Commission (NJMC), a state agency that has zoning jurisdiction over 88 percent of the land in Secaucus. The NJMC approved the bakery’s zoning request and Damascus applied for a local building permit.
When residents learned of the bakery’s plans, they were angry they had not been notified of Damascus’ zoning application and expressed concerns about increased traffic from the bakery, the volatility of the baking ingredients, and other environmental issues.
Residents and town officials were particularly concerned about the warehouse’s close proximity to several homes and Clarendon School. The town filed a lawsuit to prevent the bakery from moving to the Enterprise Avenue address.
The bakery’s owners filed a lawsuit of their own, alleging they were subjected to “political maneuvering, stonewalling, and corruption” that held up the approval of their building permit and forced them to find another home for their business.
They further alleged that they lost more than $5 million because they were unable to move to the larger space and expand the business as planned.
One past official said that during a deposition, the brothers charged that their Arab American background may have played a part in their denial, but officials said they did not discriminate. When asked, the Mafounds said that racial discrimination was not part of their claim.
The lawsuit specifically named as defendants the town of Secaucus; the Secaucus Municipal Utilities Authority; former Mayor Dennis Elwell; Construction Code Official and State Assemblyman Vincent Prieto, an Elwell ally; Fire Code Official Vincent Massaro; and former Town Attorney Frank Leanza.


In August 2010 Judge Martini dismissed the Mafouds’ lawsuit, stating they had not produced enough evidence to support their claims.
In a 13-page decision, Martini wrote that Damascus Bakery failed to provide proof to support the allegations in the lawsuit.
“Viewing the evidence in the light most favorable to Damascus,” Martini wrote, “the court finds that [the] defendants’ behavior does not ‘shock the conscience’ or lack a rational basis, such that it rises to the level of a constitutional violation.”
Throughout the ruling, Martini examined each allegation made by the bakery, looked at the evidence used to support each one, and reflected on whether the bakery met the necessary legal standard to support its case.
For example, the judge concluded that even though the town raised problems with the fire lane and insufficient parking three months after the building permit had been approved, that wasn’t enough to prove the delays were done to derail the bakery’s application.
Similarly, Damascus had argued that the town treated its building application differently than those submitted by other bakeries. To back up this claim, Damascus supplied two Certificates of Occupancy that Secaucus had issued to Daisy Bakery at 35 UPS Drive and H&H Bagels. But Judge Martini wrote that, “Beyond the assertion that baking occurs at each facility, there is nothing in the record to demonstrate that [Damascus], H&H Bagels, and Daisy Bakery are alike in all relevant aspects,” as had been alleged by Damascus’s attorney.
Even Mayor Elwell’s claim that Damascus Bakery posed a serious fire hazard, Martini ruled, did not “shock the conscience,” which is part of the legal standard in cases where a plaintiff claims that government officials’ actions are alleged to be arbitrary.
Following Martini’s 2010 decision, Anthony Laura, the attorney representing the Mafouds, filed a motion of reconsideration, asking the judge to re-examine his decision. It was this request that the judge denied on Jan.. 24.
The bakery’s only recourse now is an appeal with the Third Circuit Court of Appeals in Philadelphia, Pa.
E-mail E. Assata Wright at awright@hudsonreporter.com.

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