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STATEMENT OF UNDISPUTED MATERIAL FACTS

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					  COUNTER STATEMENT TO THIRD PARTY DEFENDANTS’ STATEMENT OF
                 UNDISPUTED MATERIAL FACTS



      The Statement of Undisputed Material Facts as submitted by Third Party

Defendants are unsupported assertions, which attempt to be validated by

references to certain documents and letters. Notwithstanding the lack of

verification thereof, Third Party Plaintiffs respond to Third Party Defendants’

Statement of Material Facts as follows:


      1.       On or about June 28, 2004, an agreement (the “Agreement”) was

signed by James Totten, Totten Family Farm and Totten Family Trust (“Third

Party Plaintiffs”) and Richard Reilly of the Washington Township Board of

Education (“Board”). The Agreement as of June 28, 2004 was not finalized or

binding as between the parties at the time of its execution as the Agreement was:

(i) subject to the review and approval by legal counsel for both parties; (ii)

subject to the review and approval by a quorum of the Board; (iii) subject to the

remittance of the stated consideration and performance other obligations on the

part of the Board; and (iv) subject to satisfactory (from Third Party Plaintiffs’

perspective)    resolution   of   the   slanderous   comments   posted   on   the

www.longvalleynj.com website. (Affidavit of Dr. James Totten Paragraphs 31

and 32).
       A voice mail message was left with Gerry Vernotica on June 29, 2004 and a

letter was written to Third Party Plaintiff’s legal counsel that the Agreement was

“null and void” on June 30, 2004.       Joseph Dunn of the Morris County Soil

Conservation District (“MCSCD”) was also notified that the Agreement was null

and void on June 30, 2004. (Affidavit of Dr. James Totten, Paragraphs 39, 40 and

41).


       The Agreement did not state, as alleged by Third Party Defendants, “that

the Totten Family would allow the Board to connect the School’s drainage

system to the Totten property’s storm water drainage system”. There was no

storm water drainage system on the Totten Family Farm to receive water from

the school.    Upon the Property was a remnant of an old swale that was

conceptually believed could be modified to address the emergency storm water

drainage issues for the school Project, as well as the drainage issues for the farm.

(Affidavit of Dr. James Totten, Paragraph 21).


        It was agreed that the design and construction of the shared drainage

swale would be completed by the Natural Resource Soil Conservation Services

(NRCS) engineers and incorporated into the farm property overall Conservation

Plan as referenced in item Paragraph 2 of the Agreement. It was also stated by

Third Party Defendant, Maser Consulting, PA, that the drainage plan satisfied all




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regulatory requirements. The defined Soil Conservation Plan as described in

point 2 of the Agreement would then be subject to the review and approval of

the MCSCD. (Affidavit of Dr. James Totten, Paragraph 29). The discussion of a

“second swale” was never contemplated or discussed and would not have been

agreed to by Third Party Plaintiffs. (Affidavit of Dr. James Totten, Paragraph

100).


        On or about May 2004, Third Party Defendant, Washington Township

Board of Education, contacted Dr. James Totten, seeking his approval for an

easement to create a single 12’ shared swale upon the Property in order assist

Third Party Defendant, Washington Township Board of Education in its

application to obtain the necessary permit from the MCSCD for its Project. Dr.

Totten was advised by that the proposed single 12’ shared swale to be created

would be used as an “emergency spillway” and would have little impact upon

the Property. Dr. Totten was also advised that the drainage system to be built

under the parking lot at the Project and other detention basin areas were going to

hold back water other than huge rain storms from flowing onto the Property.

(Affidavit of Dr. James Totten, Paragraph 16).

           In a meeting with Dr. James Totten and Third Party Defendants, Dr.

Gerald Vernotica and Marla Roller, on or about May 2004 at the Long Valley

Pub, Washington Township, New Jersey, Dr. Totten was specifically advised by


                                                                                     3
both Dr. Vernotica and Ms. Roller, that not a single drop of water would touch

my Property except for a      huge rain storm. (Affidavit of Dr. James Totten,

Paragraph 17).


       2.     The Agreement, in addition to the payment of $15,000.00 (payment

received on or about September 2004), included multiple forms of consideration.

(Affidavit of Dr. James Totten, Paragraphs 31, 45, 46, 47 and 48).


       3.     The document referred to by Third Party Defendant is not

disputed. However, Third Party Defendants had knowledge that “the adjoining

property shall be protected from excavation or filling operations” yet, Third

Party Defendants channeled most of the school’s storm water runoff through the

middle of the farm fields without taking any steps to remedy the situation after

being notified repeatedly by Third Party Defendants and other governmental

agencies. (Affidavit of Dr. James Totten, Paragraphs 57, 59-66, 69-71, 74, 88-91).


       3a.    (improperly numbered 3) The document referred to by Third Party

Defendant is not disputed. On or about June 18, 2004, Mayor Ken Short, Third

Party Defendants, Dr. Gerald Vernotica and members of the Washington

Township Board of Education had a ground breaking ceremony on the school

property stating to the press and general public that the school would be open on

time and built within budget. (Affidavit of Dr. James Totten, Paragraph 27).



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       4.     The document referred to by Third Party Defendant is not

disputed.


       5.     Dr. James Totten was contacted by the Defendant, Washington

Township Board of Education on or about May 2004 to discuss the possibility of

allowing Third Party Defendants to create a single 12’ shared swale upon the

Property, as an “emergency spillway” (Affidavit of Dr. James Totten, Paragraph

16). The Agreement by its express terms, Paragraph 8, required approval by legal

counsel for both the Third Party Defendants and Third Party Plaintiffs.


       6.     Third Party Defendants described the storm water run off design as

an “emergency spillway” and further “not a single drop of water would touch

the Property, except from a huge storm”. (Affidavit of Dr. James Totten,

Paragraphs 16-18, 20, 59-60, 62, 67, 68, 69, 71, 72, 73, 74 and 89). Third Party

Defendants misrepresented to Third Party Plaintiffs the actual scope and effect of

the proposed swale storm water drainage system from the onset of their

discussions with Third Party Plaintiffs, in that Third Party Defendants intended

to discharge nearly 30 acres of storm water run off to a single discharge point

across the Property of Third Party Plaintiffs.


       Third Party Plaintiffs relied on the representations of Third Party

Defendants and its engineers, as the basis for entering into an Agreement. Third



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Party Plaintiffs were advised and believed that the NRCS engineers, would

analyze the drainage situation and develop a detailed plan that would be in the

best interests of the farm property using best management practices and which

would also satisfy the schools drainage issues as represented by Third Party

Defendants. (Affidavit of Dr. James Totten, Paragraphs 24 and 29). The NRCS

concluded that the swale plan as proposed placed the Property at substantial

risk. (Affidavit of Dr. James Totten, Paragraph 67).


       7.     Third Party Plaintiffs communicated to Third Party Defendants

that it was essential that Third Party Plaintiffs’ counsel review the agreement and

communicate its acceptance. (Affidavit of Dr. James Totten, Paragraph 32). The

first communication from Third Party Plaintiff’s lawyer on June 30, 2004 was that

the Agreement was not accepted for the same reasons verbally communicated by

Chuck Totten at the June 29, 2004 Washington Township Board of Education

meeting and as documented in the Board’s meeting minutes. (Affidavit of Dr.

James Totten, Paragraph 39-41).


       8.     The alleged joint press release was prepared solely by Third Party

Defendants and released to the press without Third Party Plaintiffs’ approval or

input. (Affidavit of Dr. James Totten, Paragraph 120).




                                                                                      6
       9.     The document referred to by Third Party Defendants is a letter

issued by Third Party Defendants’ legal counsel. There was no confirmation

prepared by Third Party Plaintiffs that the press release of August 4, 2006 was

acceptable. (Affidavit of Dr. James Totten, Paragraph 121).


       10.    In September 2004, a check in the amount of $15,000.00 was issued

by Third Party Defendants, without notice, and continues to be held in escrow.

(Affidavit of Dr. James Totten, Paragraph 119). Third Party Plaintiffs refer to their

response as set forth in Paragraph 6 herein as to the “knowledge” of Third Party

Plaintiffs of the drainage issue.


       The Agreement was predicated on the representations of Third Party

Defendants that the drainage system would be an emergency spillway, subject to

other conditions. (Affidavit of Dr. James Totten, Paragraph 29). Third Party

Defendants had in fact, violated specific terms of the Agreement prior to

September 2004. (Affidavit of Dr. James Totten, Paragraphs 45-48).


       11.    On July 27, 2004, the MCSCD did not approve the Agreement

between the Board and Third Party Plaintiff.


       12.    Commencing on or about September/October 2004 through January

2006, Third Party Defendants were repeatedly advised by Third Party Plaintiffs,

MCSCD and the New Jersey Department of Environmental Protection


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communicated about excessive storm water run off and the damage to the farm

Property. (Affidavit of Dr. James Totten, Paragraphs 58-66, 69-74 and 88-91).


       13.    The documents referred to in Paragraph 13 consist of a series of

letter without any specific curative action. The excessive storm water run off

problem commenced in September/October 2004, causing substantial damage to

the Property. (See response to Paragraph 12 above.).


       14.    The Agreement was negated due to: (i) The Agreement, as

represented by Third Party Defendants was to permit the creation of an

“emergency spillway” through a single 12’ swale, to handle storm water from a

huge rain storm. In reality, Third Party Defendants desired to create a storm

water drainage system, through which nearly 30 acres of storm water run off

would be directed from a single discharge point in concentrated amounts across

the Property; (ii) NCRS did not approve of the swale plan design, which

approval was a pre-requisite under the Agreement; (iii) failure of the Third Party

Defendants to satisfy any of the other obligations Agreement; (iv) failure of Third

Party Defendants to address the slanderous comments directed at Third Party

Plaintiffs. (Affidavit of Dr. James Totten, Paragraphs 29, 69, 101, 102 and 103)


       15.    Third Party Plaintiffs refer to their response in Paragraph 10. Third

Party Defendants should have never commenced construction of the school



                                                                                      8
Project until such time as until a storm water drainage plan was reviewed and

approved by the appropriate authorities. (Affidavit of Dr. James Totten,

Paragraph 10). Third Party Defendants sought improper judicial intervention by

filing a Verified Complaint, as a way to force Third Party Plaintiffs to capitulate

to their desperation situation. At the time of the filing, Third Party Defendants,

knew or should have known, that construction activities upon the Property

would be in violation of New Jersey law rules and regulations, without receipt of

NJDEP permits. (Affidavit of Dr. James Totten, Paragraphs 79-82, 86-87, 102-104

and 108-111). At no time did Third Party Plaintiffs take steps to prevent the

school from opening.


      16.    Third Party Plaintiffs were not privy to the discussions by Maser

Consulting and the Smith family.


      17.    Third Party Defendants were caused to spend money in order to

effectuate a legally compliant storm water drainage system. Third Party

Defendants negligence at the onset of the Project in failing to properly plan and

obtain the necessary permits, was the direct and proximate cause of any

additional costs they incurred. Third Party Defendants represented that no New

Jersey Department of Environmental Protection permits would be required,




                                                                                      9
(Affidavit of Dr. James Totten, Paragraph 112) knowing such representations

were false. (Affidavit of Dr. James Totten, Paragraph 113 and 114).


      18.    Third Party Plaintiffs refer to their response in Paragraph 10.


      19.    The Third Party Complaint was filed on or about March 31, 2006,

after Third Party Defendants stipulated to the Dismissal of their Chancery

Division Action.


      20.    Third Party Plaintiffs are without knowledge as to that statement.


      21.    Third Party Defendants did not pursue its claim for injunctive relief

because there did not exist legal basis to pursue their cause of action at the time

of its filing and was solely undertaken in order to force Third Party Plaintiffs to

comply with their demand for construction of a storm water drainage system

which did not comport with New Jersey law. (Affidavit of Dr. James Totten,

Paragraph 110).




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                PRELIMINARY STATEMENT/PROCEDURAL HISTORY
      The initial action is brought by Third Party Defendant, Washington

Township Board of Education, against Third Party Plaintiffs, Dr. James Totten

and the Totten Family Farm, seeking to enforce the terms of a certain Agreement

dated June 28, 20041, via Order to Show Cause and Verified Complaint, filed on

or about August 31, 2005.

      At the time of the filing of the Verified Complaint and Order to Show

Cause, Third Party Defendant, Washington Township Board of Education was

engaged in the construction of an elementary school on real property which is

contiguous to the real property of Third Party Plaintiffs. Just prior to the

commencement of construction of the school project, it was discovered by Third

Party Defendants, that it had not applied for and received all of the necessary

permits and approvals for the installation of a storm water drainage system, in

particularly, approval from the Morris County Soil Conservation District. The

resulting effect was that the school construction project could not be commenced.

Third Party Defendants approached Third Party Plaintiffs and requested their

assistance and approval for the installation of a swale type storm water drainage

system upon their property to be used as an emergency spillway. Third Party

Defendants wanted an “easement” or “right” to create a single 12’ shared swale

1     See Exhibit J to the Affidavit of Dr. James Totten.



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upon the Property in order to assist Third Party Defendant, Washington

Township Board of Education, in its application to obtain the necessary permit

from the MCSCD for its Project and permit construction activities to commence.

Third Party Plaintiffs were advised that the proposed single 12’ shared swale to

be created would be used as an “emergency spillway” and would have little

impact upon the Property. Third Party Plaintiffs were also advised that the

drainage system to be built under the parking lot at the Project and other

detention basin areas were going to hold back water other than huge rain storms

from flowing onto the Property.

      After a series of discussions, a document entitled Agreement dated June

28, 2004 (the “Agreement”) was prepared. The Agreement was subject to the

satisfactory completion of certain pre-conditions prior to it becoming legally

binding.    The Agreement specially provided that upon “acceptance”,

Washington Township Board of Education would be granted the right to utilize

an emergency spillway consisting of a single 12’ shared swale to be expanded

along a portion of the Property, consistent with the approval of the MCSCD; all

New Jersey Environmental Protection rules, regulations and laws governing the

proposed storm water drainage plan; and for the single 12’ shared drainage

swale to be designed and constructed by the NRCS engineers utilizing “best

management practices” consistent with the requirements for a Soil Conservation



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Plan and Deed of Easement for all preserved farms. The Agreement was

specifically contingent on approval by legal counsel to both parties.

      The Agreement was not at anytime approved by legal counsel by either

party. On June 29, 2004, Third Party Defendants were informed orally that the

Agreement was not acceptable. On June 30, 2004, the Agreement was formally

rejected by the Third Party Plaintiffs’ legal counsel. Notwithstanding the

rejection of the Agreement, Third Party Defendants sought and obtained a

permit from the Morris County Soil Conservation District and commenced

construction of the Project, including the storm water drainage system.

       Following the commencement of the construction of the storm water

drainage system, excessive amounts of surface run-off water were caused to be

directed to the Third Party Plaintiffs Property causing substantial damage to the

soil, planted corps and the irrigation pond located thereon. Numerous citations

were issued to Third Party Defendants by the Morris County Soil Conservation

District and New Jersey Department of Environmental Protection, as well as

notices from Third Party Defendants.

      On or about October/November 2004, as a result of the defective design

and construction undertaken by the Third Party Defendants and their agents

related to the storm water drainage system, a substantial amount of surface

storm water run off, during normal rain storms, was continually directed to



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drain into a concentrated area upon the Property, causing significant soil erosion

to a substantial number of farmable acres, the destruction of crops, as well the

collection of excess soil and silt in Third Party Plaintiffs’ irrigation pond.

       It became apparent on or about October/November 2004, that the storm

water drainage system being constructed by Third Party Defendants was

directing nearly all of the storm water collecting upon the 30 acre school

property to a single discharge point contiguous to the Property and was not

operating as an “emergency spillway” as represented by Third Party Defendants.

       Third Party Plaintiffs issued Notice to Third Party Defendants on or about

December 1, 2004 that the Agreement was rescinded as a result of the substantial

differences between what was represented to Third Party Plaintiffs regarding the

proposed storm water drainage system to consist of an “emergency spillway” as

compared to the actual storm water drainage system which was now causing all

of the storm water run off collected upon Third Party Defendants’ school

property to drain across the Property from a single discharge point in

concentrated amounts.

       A meeting was held on or about February 4, 2005 by the Third Party

Defendants, Third Party Plaintiffs their representatives and consultants and

representatives of various state and local agencies to discuss the water drainage

issue so as to develop a satisfactory resolution and plan. Following the February



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4, 2005 meeting, Third Party Defendants represented to Third Party Plaintiffs

that they would be in receipt of a revised plan for consideration within two (2)

weeks for consideration.    On or about August 22, 2005, a revised plan was

submitted to Third Party Plaintiffs with a demand for their approval no later

than August 29, 2005. Suit was instituted by Third Party Defendants, by Order to

Show Cause and Verified Complaint on or about August 31, 2005 for immediate

injunctive relief.

       A hearing was held before the Honorable Kenneth G. MacKenzie, J.S.C.,

on September 12, 2005, in respect of Third Party Defendants request for

immediate injunctive relief. The Honorable Kenneth G. MacKenzie, J.S.C. denied

the request of Third Party Defendants and set the matter down for plenary

hearing for November 14, 2005. Ultimately, Third Party Defendants withdrew

their request for a hearing and dismissed their affirmative claims on or about

February 2006.

       Third Party Plaintiffs filed a Third Party Complaint on or about March 31,

2006, seeking damages resulting from actions undertaken by Third Party

Defendants during the matter. The matter was transferred to the law division on

or about April 2006 for adjudication.

       Third Party Defendants now move to dismiss the Third Party Complaint.




                                                                                    15
                             STATEMENT OF FACTS

       Third Party Plaintiffs rely on the certified facts set forth within the

Affidavit of Dr. James Totten and incorporate same herein by way of reference

for the sake of brevity.




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                                      LEGAL ARGUMENT
                                         POINT ONE

                                 Summary Judgment Standard

       Defendants' motion for partial summary judgment should be granted since there are no

genuine issues of material fact, which require decision by a jury at a trial.




       Rule 4:46-2 of the New Jersey Court Rules provides the standard under

which summary judgment motions should be granted. Rule 4:46-2 provides that

a court should grant summary judgment when “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law.”

       It is critical that a trial court ruling on a summary judgment motion not

"shut a deserving litigant from his [or her] trial.” (Emphasis added). Brill v.

Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995). These are the words that

were used by the New Jersey Supreme Court in 1995 when it decided the issue of

whether summary judgment has been properly granted in the case of Brill v.

Guardian Life Ins. Co. of America. The Court held that “when deciding a motion

for summary judgment under Rule 4:46-2, the determination whether there exists

a genuine issue with respect to a material fact challenged requires the motion




                                                                                        17
judge to consider whether the competent evidential materials presented, when

viewed in the light most favorable to the non-moving party in consideration of

the applicable evidentiary standard, are sufficient to permit a rational fact finder

to resolve the alleged disputed issue in favor of the non-moving party.”

(Emphasis added) Brill v. Guardian Life Ins. Co. of America 142 NJ 520, 523. In

addition, the Court held that “[t]he motion must be denied „if the evidence,

together with the legitimate inferences therefrom, could sustain a judgment in

[the non-moving party‟s] favor.‟ ” (Emphasis added) Id. at 535.

       The test is whether the evidence, together with the legitimate inferences

therefrom, could sustain a judgment in favor of the party opposing the motion,

i.e., if, accepting as true all the evidence which supports the position of the party

defending against the motion and according him the benefit of all inferences

which can reasonably and legitimately be deduced therefrom, reasonable minds

could differ, the motion must be denied. The trial court is not concerned with the

worth, nature, or extent, beyond a scintilla, of the evidence but only with its

existence, viewed most favorably to the party opposing the motion. That

standard ensures that appellate tribunals will not overstep their bounds by

usurping the jury's task of assessing the credibility of the witnesses. The, Court in

reviewing arguments presented by the parties, as noted, must view most

favorably those items presented by the party opponent, resolving all doubts




                                                                                        18
against the movant. Ruvolo v. American Gas. Co. 39 N.J. 490, 499(1963); Frank

Rizzo, Inc. v. Alatsas, 27 N.J. 400 (1958). If there is no genuine issue of material

fact, such as is the case here, summary judgment must be granted. Judson v.

Peoples Bank & Trust of Westfield, 17 N.J. 67, 75 (1954). This rule and the further

guidelines set forth in Judson, are the basis upon which such a motion is to be

determined.    Bilotti v. Accurate Forming Corp., 35 N.J. 184 (1963); United

Advertising Corp. vs. Metuchen, 35 N.J. 193 (1961); Stewart v. Magnolia, 134 N.J.

Super. 312 (App. Div. 1975); Friedman v. Friendly Ice Cream Co., 133 N.J. Super. 333

(App. Div. 1975).

       In the present case, the Affidavit of Dr. James Totten, the referenced

documents and the Third Party Complaint illicit numerous genuine issues of

material fact which cannot be resolved by a motion for summary judgment.




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                                            I


                  IMMUNITY UNDER THE TORT CLAIMS ACT


       The New Jersey Tort Claims Act (the "Act"), in N.J.S.A. 59:3-2(A) provides

that an employee is not liable for an injury resulting from the exercise of

judgment or discretion vested in him. Specifically, the Act provides that “nothing

in this act shall exonerate a public employee from liability if it is established that

his conduct was outside the scope of employment or constituted a crime, actual

fraud, actual malice, or willful misconduct.” N.J.S.A. 59:3-14.


       Third Party Plaintiffs assert that there are numerous issues of fact in the

present case, which preclude immunity to Third Party Defendants under the Act.

Third Party Defendants' on many occasions, as set forth in the Affidavit of Dr.

James Totten, acted outside the scope of their capacity as members of the

Washington Township Board of Education or its employee and that the conduct

of the individual Board members did constitute actual malice, fraud, misconduct

or negligence.


       Third Party Defendant, Dr. Gerald Vernotica, superintendent of the

Washington Township of the Board of Education, as well as the Board of

Education represented to Dr. James Totten, that the proposed plan consisted of a

single 12' shared swale would be used as an "emergency spillway and would



                                                                                         20
have little impact on the Property. Third Party Defendants did not at any time

disclose to Third Party Plaintiffs nor was it ever discussed or agreed upon that

Third Party Plaintiffs would accept basically all of the school's storm water

runoff. From the onset of all discussions, it was represented to Third Party

Plaintiffs that the shared swale would serve as an "emergency spillway".


       Third Party Defendants forwarded the Agreement to Joseph Dunn on

June 29,004 by fax, with knowledge that the Agreement was not final or accepted

by Third Party Plaintiffs. Third Party Defendant, Dr. Gerald Vernotica

represented to Joseph Dunn of the MCSCD that "I have the cancelled check in my

hand" in order to obtain a permit so as to allow the commencement of

construction for the school project. Third Party Defendants, knew at the time the

permit issued by the MCSCD that the Agreement was not accepted by Third

Party Plaintiffs, and notwithstanding that knowledge proceeded to commence

with the construction of the school Project.


       Third Party Defendants did not exercise discretion or judgment with

respect to the submission of the Agreement to MCSCD. Third Party Defendants

acted improperly by obtaining a permit for the school project, knowing that the

condition upon which the MCSCD would issue such permit (a binding

agreement with Third Party Plaintiffs) was not satisfied.




                                                                                    21
       Third Party Defendants were also aware that the drainage plan as

represented to Third Party Plaintiffs did not reveal the full scope or effect of the

actual drainage plan. Third Party Defendants affirmatively intended to induce

Third Party Plaintiffs to enter into an agreement for their benefit and engaged in

a series of mis-representations in order to accomplish that goal. Third Party

Plaintiffs would not have even entertained a discussion with Third Party

Defendants had they been advised of the true scope of drainage plan. Such action

does not constitute the exercise of judgment or discretion.


       Third Party Defendants embarked on a pattern of deception throughout

the whole construction process with the only goal of completing the school

Project whatever the cost. The Affidavit of Dr. James Totten recites numerous

instances where the actions of Third Party Defendants were not the exercise of

judgment or discretion, but where calculated actions so as to deceive Third Party

Plaintiff and avoid compliance with New Jersey law.

       Third Party Defendants did not apply to the New Jersey Department of

Environmental Protection – Land Use Regulation Program for a Letter of

Interpretation (“LOI”) for the Property so as to determine whether their

proposed plan storm water drainage plan and its related construction activities

were within the freshwater wetland, freshwater wetland transient areas or state

open waters in order to avoid violations of the Freshwater Wetlands Protection


                                                                                       22
Act (N.J.S.A. 13:B-1 et. seq. (the “Act”)) and the Highland Act. Curiously, Third

Party Defendants felt it was important enough and did apply to the New Jersey

Department of Environmental Protection – Land Use Regulation Program for a

Letter of Interpretation for the school property and were in receipt of a LOI for

Smith property, so as to determine if the New Jersey Department of

Environmental Protection had jurisdiction over the Project as it related to those

real properties, however Third Party Defendants did not reach the same

conclusions with regard to Third Party Plaintiffs’ Property.

       The failure to apply for the LOI by the Third Party Defendants, was

predicated on the fact that the Property does contain wetlands and a Category 1

stream and as such, would have caused substantial delays in the completion of

the Project on the part of Third Party Defendants, with respect to compliance

with the regulatory burden of discharging storm water run off into

environmentally protected areas. Third Party Defendants did not want to incur

the substantial additional cost of retro-fitting and re-designing the defective

storm water drainage system and affirmatively choose to ignore the regulatory

requirements in order to complete the Project.

      Third Party Defendants affirmatively choose not to “know” about the

limiting conditions upon the Property, which limiting conditions were readily

apparent to the NRCS engineers as early as February 2005, Clearly, Third Party



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Defendants    should   have    applied   to   the   New   Jersey   Department    of

Environmental Protection – Land Use Regulation Program for a Letter of

Interpretation at the outset, consistent with their application for a LOI related to

the school property and Smith property, however, Third Party Defendants

elected to proceed without such verification from the New Jersey Department of

Environmental Protection in order to avoid the regulatory red-tape and the delay

this would have caused in completing the Project.

      Moreover, Third Party Defendants were advised during 2005 in a

preliminary meeting with Sue Michniewski of the New Jersey Department of

Environmental Protection, that a proposed drainage plan which encompassed

use of the Smith property would not be able to satisfy the NJDEP regulatory

requirements as presented and further were advised that regulatory issues

applicable to the Smith property were also applicable to Third Party Plaintiffs’

Property. Notwithstanding that knowledge, Third Party Defendants proceeded

on a course to ignore the environmental conditions and permitting affecting the

Property so as to get the school Project completed and opened at cost.

      Third Party Defendants wanted to disguise the construction of the swale

as an agricultural practice for Third Party Plaintiffs’ farm instead of the major

development of a new school, to avoid detection from the NJDEP and the need

for regulatory compliance.     The words “Farm Conservation” were used as a



                                                                                       24
means of deception.     The swale plan had nothing to do with Third Party

Plaintiffs’ Soil Conservation Plan, especially since the NRCS engineers, reviewed

Third Party Defendants’ swale plan, and deemed it unsatisfactory, as having an

“unstable outlet” with “long term maintenance issues” subjecting the farm

Property to substantial risk, over a year earlier. The NRCS engineers rejected the

swale plan outright as not being a viable alternative, since it did not conform to

“best management practices” as required in the Deed of Easement for all

preserved farms.

       In order to get their way, Third Party Defendants decided to file suit

against the Third Party Plaintiffs, seeking immediate injunctive relief, so that the

“way may be cleared” for construction of the swale upon the Property of Third

Party Plaintiffs, with knowledge that New Jersey environmental laws would not

be complied with. At the time of the filing of Verified Complaint, to my

knowledge, Third Party Defendants’ did not have any New Jersey Department of

Environmental Protection permits in place, notwithstanding the fact that the

Third Party Defendants were demanding specific performance under the

Agreement, without an evidentiary hearing, in order to permit construction

activities upon the Property immediately. By this action, Third Party Defendants

were knowingly and intentionally seeking to violate New Jersey environmental

laws by Court action.



                                                                                       25
      There are a number of other factual issues raised in the Affidavit of Dr.

James Totten, all of which are sufficient to deny the relief sought by Third Party

Defendants.




                                                                                     26
                                            II

                                    NEGLIGENCE

       Third Party Defendants engaged in the construction of a school project

which caused substantial damages to Third Party Plaintiffs Property. Third Party

Defendants were repeatedly advised of the excessive storm water runoff

damaging Third Party Plaintiffs’ Property, and Third Party Defendants failed to

take the necessary remedial action. In fact, Third Party Defendants asserted that

the damage being caused to the Property from the excessive storm water runoff

was the result of actions of Third Party Plaintiffs.


       Third Party Defendants did owe a duty to Third Party Plaintiffs. The

casting of damaging surface water onto another property is violative of New

Jersey law. (See Yonadi v. Homestead Country Homes, 35 N.J. Super. 514 (App. Div.

1955). Third Party Defendants continued to cast the excessive storm water run off

water across Third Party Plaintiffs’ property for nearly 1 and ½ years, despite the

objections of Third Party Plaintiffs and violation notices issued by other

governmental agencies. To suggest, as Third Party Defendants argue that it was

reasonably foreseeable that surface storm water run off would not cause damage

is preposterous.




                                                                                      27
                                         III

                          PRIVITY OF THE CONTRACT

   The individual board members who comprised the Washington Township

Board of Education and Dr. Gerald Vernotica were intimate with the facts and

circumstances surrounding the Agreement and its terms. The individual Third

Party Defendants authorized the Agreement, with knowledge that certain of the

terms were not true at the time so stated which were placed in the Agreement to

induce Third Party Plaintiffs to sign. The individual Third Party Defendants

were aware that the representations asserted by Dr. Gerald Vernotica to Dr.

James Totten regarding the type and affect the proposed drainage system would

have upon Third Party Plaintiffs’ Property were not true.




                                                                                  28
                                         IV

       EQIUTABLE OR LEGAL FRAUD IN PROCURING THE CONTRACT

   There are an overwhelming number of factual contentions asserted by Third

Party Plaintiffs as set forth in the Affidavit of Dr. James Totten, to satisfy the

elements of legal fraud under the standard set forth in Jewish Center of Sussex

County v. Whale, 86 N.J. 619 (1981). The representations to Dr. James Totten

regarding the amount of water to be discharged upon the Property was

completely mis-represented from the onset of this matter. The knowledge of the

falsity was known by Third Party Defendants and its professionals. Dr. James

Totten was very concerned about the affect of the storm water would have on the

Property and reasonably relied on the representations of Third Party Defendants

that not a single drop of water would go on the Property, except for a huge

storm, with respect to the signing of the Agreement. The resulting damages from

the excessive storm water run off are self evident. Third Party Plaintiffs relied

upon the fact that the conceptual shared drainage swale was to be incorporated

into the preserved farm’s overall Conservation Plan, using “Best Management

Practices” and most certainly complying with current storm water management

rules and regulations.




                                                                                     29
      Third Party Defendants mis-represented from the beginning with regard

to the proposed drainage system, and the Affidavit of Dr. James Totten, is replete

with factual issues, which preclude summary judgment on this Count.




                                                                                     30
                                            V


     LACK OF CONSIDERATION OR FAILURE OF CONSIDERATION


      The Agreement, as suggested by Third Party Defendants, did not simply

provide for consideration in the amount of $15,000.00. The plain language of the

Agreement provided for a series of other considerations, in the form of

obligations on the part of Third Party Defendants, none of which were satisfied

on the part of Third Party Defendants.


The Agreement included many terms and conditions, most important of which was

item #2, which specifically states “as defined by the Soil Conservation Plan in #1”.


       Third Party Defendants unilaterally developed their own drainage swale

plan, manipulated the velocity and capacity drainage calculations to obtain

approval by the MCSCD, even though the NRCS engineers determined that this

approved swale plan was an “unstable outlet” and created “long term

maintenance”. Ultimately, the Third Party Defendants developed a drainage

plan which required the construction of two (2) swales upon the Property and

filed an Order to Show Cause and Verified Complaint in order to effectuate the

two (2) swale plan upon the Property.




                                                                                       31
        Every aspect of the agreement was violated or ignored, other than the remittance

of $15,000, which was paid in September 2004, long after Third Party Defendants

represented to Joseph Dunn of the MCSCD that the Agreement was final and have the

“cancelled check in my hand”, referring to Dr. Gerald Vernotica’s statement on June 29,

2004.


        The record is replete with factual issues which preclude the entry of summary

judgment on this Count.




                                                                                        32
                                        VI

                                     DURESS

       Third Party Plaintiff, Dr. James Totten, was under a great deal of stress at

the time the Agreement was signed. The record reveals explicit examples

coercion by Third Party Defendants, amply demonstrated by the direct threats

uttered by Third Party Defendants, Jim Harmon and James Reilly (See Affidavit

of Dr. James Totten Paragraph 25).


       Clearly, there was a smear campaign being waged against the Third Party

Plaintiffs, which was affecting the farm business economically. The Long Valley

web site was replete with postings containing negative and slanderous

comments about Third Party Plaintiffs, which were not true. More importantly,

the certain information as contained in the Long Valley web site as it related to

the Agreement could only have been known by Third Party Defendants and was

disclosed in order to have the public look disfavorably upon the Third Party

Plaintiffs and cause economic hardship.


       The joint press release asserted by Third Party Defendants as somehow

defusing the duress is a misstatement. The purported joint press release was

prepared by Third Party Defendant and released without any input by Third

Party Plaintiffs.



                                                                                      33
      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.




                                                                              34
                                         VII

                             UNILATERAL MISTAKE

      It was stated numerous times to Third Party Plaintiffs over and over

again, that the Project’s drainage system and the creation of a single 12’ shared

drainage swale would be in compliance with all regulatory standards, rules and

regulations; reviewed and approved by the MCSCD; and was to be incorporated

into the preserved farm’s Soil Conservation Plan created by the NRCS and

United Stated Department of Agriculture engineers. These representations were

even documented in the EPIC meeting minutes and stated in the Storm Water

Management Report, which was provided to Third Party Defendants to review

prior to signing an agreement. The initial conceptual design of a shared drainage

swale would have never satisfied regulatory standards, let alone Soil

Conservation standards. The shared drainage swale would not satisfy velocity

and capacity standards when including the school’s storm water runoff, in

addition to the storm water runoff from Third Party Plaintiffs farm fields.


      The shared drainage swale, if allowed as a result of the filing of the Order

to Show Cause would have illegally drained into a Special Resource Water

Protection Area (SWRPA) and would have violated existing Category 1 stream

restrictions, 300 foot wetland transition buffers, without the issuance of a

variance/permit through the Department of Environment Protection. The shared


                                                                                     35
drainage swale could never have been constructed as initially contemplated and

no reasonable person would have agreed to construct a drainage plan with an

“unstable outlet” in addition to “long term maintenance issues”. These issues

were never contemplated or discussed during the formulation of the Agreement,

since it was represented by Third Party Defendants that the drainage swale

would be used for “emergency purposes only” and not a drop of water would

touch the Property except from a huge storm.


      Third Party Defendants did not at any time disclose to Third Party

Plaintiffs the magnitude of the drainage plan. Quite obviously, if they did, there

is no doubt that Third Party Plaintiffs would not have agreed.


      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.




                                                                                     36
                                         VIII

                             BREACH THE CONTRACT

      The Third Party Defendants did not fully perform any of their obligations

under the Agreement, with the exception of the remittance of the $15,000.00 as

previously stated. Third Party Defendants, started construction, without

addressing the storm water run off impact on the farm Property or take the

necessary precautions to preserve Third Party Plaintiffs’ trees and crops. As it

turned out, Third Party Defendants had already made the decision to destroy the

trees and crops as of May 17, 2004, yet they led Third Party Plaintiffs believed all

due precaution and notice would be undertaken, in order to obtain the

Agreement from Third Party Plaintiffs. The Affidavit of Dr. James Totten

delineates a number of factual allegations where Third Party Defendants failed to

comply.


       Nearly every aspect of the Agreement was ignored by Third Party

Defendants.


      Third Party Defendants chose to intentionally ignore the drainage

problems, which continued from the moment construction, began in June 2004

through the Spring of 2006. The Agreement was manipulated by the Third Party

Defendants in order to achieve their goal of constructing the school at any cost.



                                                                                       37
      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.




                                                                              38
                                          IX

           FLOW OF THE SURFACE WATER WAS UNREASONABLE

      There is no doubt that the Third Party Defendants caused excessive storm

water surface to flow in a concentrated manner across the Third Party Plaintiffs’

Property. There is indisputable evidence as set forth in the Affidavit of Dr. James

Totten denoting the destructive storm water run off flows from Third Party

Defendants’ property. The determination of unreasonableness as articulated by

Third Party Defendants is for the jury to decide.




                                                                                      39
                                        X

                              BREACH OF DUTY

       Third Party Defendants owed a duty to Third Party Plaintiffs to properly

disclose to Third Party Plaintiffs all information related to the proposed single

12’ shared swale plan and make truthful and honest representations with regard

thereto.


       Third Party Defendants owned a duty to Third Party Plaintiffs to prevent

excessive storm water surface water from flowing upon the Property of Plaintiffs

in concentrated amounts from damaging Third Party Plaintiffs’ Property.


       Third Party Defendants owed a duty to Third Party Plaintiffs to comply

with all New Jersey laws and regulations with regard to the proposed single 12’

shared swale plan and provide assurance to Third Party Plaintiffs of compliance

thereof.


       Third Party Defendants owed a duty to Third Party Plaintiffs not to file an

action in the New Jersey Superior Court, seeking immediate injunctive relief to

construct a drainage system on the Third Party Plaintiffs’ property which did not

comport with the necessary requirement of New Jersey law.




                                                                                     40
      Third Party Defendants argue, in almost every instance in their brief, that

the mere remittance of the $15,000.00 somehow justifies every duty that Third

Party Defendants owed to Third Party Plaintiffs. Clearly they are incorrect.


      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.




                                                                                    41
                                         XI


                        INTENTIONAL TORT OF FRAUD


         The Agreement from its inception was misrepresented to Third Party

Plaintiffs. The record clearly identified numerous factual issues related to this

issue.


         In addition, the actions of the Third Party Defendants in respect of: (i)

their use of the Agreement in order to obtain a permit from the MCSCD to

commence construction; (ii) the manipulation of the calculations of the water

flows and velocity in order to have the drainage plan approved by the MCSCD

on or about July 27, 2005; (iii) and the filing of the Order to Show Cause and

Verified Complaint, seeking immediate injunctive relief to cause the drainage

system to be constructed on the Property, without the requisite New Jersey

environmental permits, clearly establish factual issues for a jury to decide.




                                                                                     42
                                      XII


         FIDUCIARY RELATIONSHIP WITH THE TOTTEN FAMILY

      Third Party Defendants owed a fiduciary duty to provide to Third Party

Plaintiffs the necessary and appropriate information related to the design,

construction and affect that the proposed a storm water drainage system was

going to have upon the Property. The information provided to Third Party

Plaintiffs was intentionally misleading so as to induce Third Party Plaintiffs to

sign the Agreement. This fiduciary duty was repeatedly breached


      Third Party Defendants had a fiduciary duty to Third Party Plaintiffs to

ensure that New Jersey laws, as same applied to the drainage system were met.

This duty was repeatedly breached.


      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.




                                                                                    43
                                          XIII


            CONSPIRACY TO COMMIT A TORT AND AIDING IN THE

                          COMMISSION OF A TORT


      The factual allegations set forth in the Affidavit of Dr. James Totten,

clearly delineate the tortuous conduct of the Third Party Defendants, along with

Maser Consulting, PA, to attempt to force the proposed drainage plan upon

Third Party Plaintiffs. The intentional mis-representations, manipulation of the

Agreement; manipulation of water calculations in order to obtain approvals and

the filing of the Verified Complaint with knowledge that the relief so requested

would have been illegal, all demonstrate factual issues related to these Counts, to

be decided by a jury.




                                                                                      44
                                      XIV

                        MALICIOUS PROSECUTION

      Third Party Defendants filed an Order to Show Cause and Verified

Complaint in order to obtain immediate injunctive relief, for the installation of

drainage system upon the Property so that the Project could be completed and

school open.


      At the time of the filing of Verified Complaint, Third Party Defendants

did not have the necessary New Jersey Department of Environmental Protection

permits in place, notwithstanding the fact that the Third Party Defendants were

demanding specific performance under the Agreement, without an evidentiary

hearing, in order to permit construction activities upon the Property

immediately. Third Party Defendants were completely aware of the need to

obtain regulatory permits, but were seeking to disguise their activities as “Farm

Conservation”.

      The Verified Complaint was filed in bad faith and without reasonable

cause so as to pressure and intimate Third Party Plaintiffs to allow Third Party

Defendants to engage in activities which were not compliant with regulatory

laws. The relief requested by Third Party Defendants was denied by the Court.

      The record is replete with factual issues which preclude the entry of

summary judgment on this Count.


                                                                                    45
                                        XV


                    INJURIOUS FALSEHOOD OR TRADE LIBEL


       There are specific examples of statements made by Third Party

Defendants set forth in the Affidavit of Dr. James Totten, clearly demonstrate the

derogatory nature of the statements and the intent of those statements to cause

economic harm to Third Party Plaintiffs’ business. Moreover, the information

contained   on   the   www.longvalleynj.com       web   site,   contained   detailed

information related to the negotiations of the Agreement between the parties,

and therefore could only have been proffered by Third Party Defendants. The

issue is not whether the claim can ultimately be proved; it is whether there are

genuine material factual issues, which the record clearly reflects.




                                                                                       46
                                       XVI

          INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

       The conduct of Third Party Defendants throughout this matter was

calculated, planned and put into motion with one objective in mind – open the

school. Third Party Defendants wanted to shut down the extraordinary amount

of public pressure resulting from the Project’s delay and the mis-management of

the Project from the beginning as it related to the permitting process.


       Third Party Defendants, from the onset of this matter, intentionally

pressured, threaten and coerced Third Party Plaintiffs to sign the Agreement.

Third Party Defendants’ actions did not stop until they got their way. It did not

matter to Third Party Defendants as to the consequences which would result to

the Third Party Plaintiffs’ Property, as long as the school opened.


       Even after the Agreement was signed, Third Party Defendants continued

on a course which threatened the farm Property and business of Third Party

Defendants. Notwithstanding the intentional misrepresentations of Third Party

Defendants proposed plan, Third Party Defendants, wanted to construct s

drainage system which did not comport with New Jersey law and leave Third

Plaintiffs responsible for the baggage. There are scores of factual assertions




                                                                                    47
which amply support this Count which preclude the entry of summary judgment

on this Count.


                                        .




                                                                              48
                                      XVI

            NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

       For the reasons as previously articulated, there are numerous factual allegations

set forth in the Affidavit of Dr. James Totten establishing genuine issues of material

facts, as well as in the Complaint.




                                                                                     49
                                     XVIII

                    NEGLIGENT MISREPRESENTATION

      The Affidavit of Dr. James Totten amply demonstrates a plethora of

genuine issues of material facts regarding the mis-representations of Third Party

Defendants with regard to the Agreement, the swale plan, and the need to obtain

New Jersey environmental permits for the drainage system, which preclude the

entry of summary judgment on this Count.




                                                                                    50
                                       XIX

                              SLANDER OR LIBEL

      Third Party Defendants, embarked on a campaign to pressure, threaten

and coerce Third Party Plaintiffs to solve a problem created by Third Party

Defendants’ own malfeasance. This Campaign included derogatory statements,

in writing and orally. The statements were made with the purpose of lowering

the reputation of Third Party Plaintiffs in the community and had the ultimate

affect of causing the Third Party Plaintiffs’ farm stand to economically fail. Once

again the issue currently before the court is not whether the claims may be

proved, but whether there are genuine issues of material fact which preclude the

entry of summary judgment. Accordingly, Third Party Plaintiffs assert that the

record is replete with factual issues which preclude the entry of summary

judgment on these Counts.




                                                                                      51
                                       XX

                        NO ACTIONABLE COMPLAINT

       The detailed factual allegations as set forth in the Affidavit of Dr. James

Totten and the Complaint, amply demonstrate the merits of the various Counts

asserted by Third Party Plaintiffs.




                                                                                     52
                                          XXI

                    IMMUNITY UNDER THE TORTS CLAIM ACT

      The New Jersey Tort Claims Act provides that “nothing in this act shall exonerate a

public employee from liability if it is established that his conduct was outside the scope

of employment or constituted a crime, actual fraud, actual malice, or willful

misconduct.”


      The Affidavit of Dr. James Totten is replete of facts which demonstrate the

willful, negligent and illegal conduct of the Third Party Defendants, which precludes

the applicability of the immunity under Act. In addition, Third Party Plaintiffs refer to

the other reason previously articulated herein.




                                                                                       53
                                  CONCLUSION


      For the foregoing reasons, it is respectfully submitted that motion for summary

judgment as filed by Third Party Defendants be denied.



                                       Schenkman Jennings & Howard, LLC
                                       Attorneys for Third Party Plaintiffs



                                       By:___________________________
                                             Martin J. Jennings, Jr., Esq.
                                             Dated: September 25, 2006




                                                                                  54

				
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