The New Jersey Supreme Court has rejected a request by the town to review a November 2008 Appellate Court ruling regarding Damascus Bakery.
The Supreme Court decision not to review the case was made on February 17. Although the state Supreme Court did not directly rule on the case, its refusal to review the matter means the Appellate decision stands.
Last fall, the Appellate Division of the Superior Court of New Jersey ruled that the New Jersey Meadowlands Commission (NJMC), which has zoning jurisdiction over 88 percent of the land in Secaucus, acted within its rights when it approved the zoning certificate for Damascus Bakery.
In their ruling last November, the appellate court judges wrote, “We are satisfied that the [NJMC] acted within its ‘exclusive’ jurisdiction in this area… Accordingly, its decision was neither arbitrary nor unreasonable, and its procedures accorded appellants all the process due.”
The appellate ruling stemmed from a lawsuit the town filed after the NJMC approved zoning certificates for the bakery in May 2007.
Mayor Dennis Elwell believed Secaucus lost the appellate ruling on narrow legal grounds.
“When you read the decision, they state that the town had good cause to file [an appeal],” Elwell said shortly after the ruling. “They ruled on the very simple matter as to whether the [NJMC] had the right to make the zoning decision.”
Following the appellate decision the town vowed to appeal the ruling to the state supreme court. The court’s February 17 decision ends the town’s legal appeals. The bakery’s owners have decided not to relocate to Secaucus and are suing the town.
Legal battle dates back to 2007
In March 28, 2007, the Brooklyn-based Damascus Bakery applied to the NJMC for a zoning certificate for a warehouse located at 10 Enterprise Ave. in Secaucus. The wholesale bakery, which specializes in pita bread, had planned to relocate its expanding business to the town.
When residents learned of the bakery’s plans, however, they were angry they had not been notified of Damascus’ plans and expressed concerns about increased traffic from the bakery, the volatility of the baking ingredients, and other environmental issues.
Town had uphill challenge
Had the three-judge Appellate Court been divided in its decision, Secaucus would have had an automatic right to have its case heard by the New Jersey Supreme Court. However, the Appellate Court was unanimous in its decision, which meant the town had to prove there were special circumstances why the high court should hear its appeal.
Town Administrator David Drumeler and other representatives for Secaucus refused to discuss the Supreme Court decision, citing a need to discuss the matter with members of the Town Council in closed caucus session first. Therefore, it is unclear what “special circumstances” formed the basis of the town’s appeal to the Supreme Court. However, in the past the town has argued that the NJMC failed to notify the local community of the bakery’s plans and disregarded the health and safety needs of the community.
Bakery’s civil suit grinds forward
The owners of Damascus Bakery, brothers David and Edward Mafoud, have abandoned their plans to move to Secaucus and they are scouting other sites to relocate their business.
However, the bakery has filed a civil lawsuit against Elwell and other town officials alleging that Damascus Bakery has lost more than $5 million because it was unable to move to the Enterprise Avenue warehouse and expand the business as planned. The Mafouds are seeking more than $1 million in lost revenue due to the delays caused by their inability to expand the business.
The brothers and their attorney, Anthony Laura, say the appellate ruling and last month’s Supreme Court decision will bolster their civil case.
“The Town is now essentially out of options. They have no more right of review,” Laura said last week. “The Appellate division’s affirmation of the issuance of approvals to Damascus Bakery now stands as is, which is good from our perspective. So, we are pleased with the Supreme Court decision.”
The Mafoud’s lawsuit has been at a standstill for months while the Supreme Court reviewed the town’s request. Now that the high court has decided not to hear the case Laura said depositions in the civil suit can move forward.
Mayor Elwell is scheduled to give a deposition in the civil case on March 19. The case is currently before the U.S. District Court in Newark.
E. Assata Wright may be reached at awright@hudsonreporter.com.