SEE ATTORNEY MARK OSHINSKIE’S RESPONSE TO MAYOR’S LETTER IN ‘LETTERS TO THE EDITOR’
It all started out of a desire by the elected officials to make Highland Park, already one of the most walkable small towns in New Jersey, more sidewalk-user friendly by fixing the extensive cracks, bumps and lumps. Lawsuits over the legality of an ordinance requiring the homeowner to foot the bill for sidewalk repairs tripped up the good intentions. Two of the lawsuits in the state court system have been dismissed. State Superior Court Judge Francis did require the borough to write a better ordinance with more specificity, but the underlying premise of having the homeowners responsible for the repair remained in tact. A third lawsuit in Federal Court has just been filed. The elected officials are contending that the Highland Park sidewalk repair program in which the homeowners have to bear the cost of repairs not only is legal, but also follows a municipal precedent requiring homeowners to assume the cost of repairs. In Middlesex County, 23 out of 25 municipalities have ordinances that make sidewalk repair the responsibility of the homeowner. The town tried to mitigate the fiscal pain by establishing a program that offered a five- year, interest-free loan to cover the average sidewalk repair cost of $931 and by hiring a contractor who, because of the volume of work, would be able to charge less per repair than if the homeowner contracted individually. The most fiscally frustrating fact for the elected officials is that the legal costs involved in these lawsuits already have amounted to an estimated $60,000. And the current suit in Federal Court will increase these costs.
Mayor Gayle Brill Mittler was prompted to write the below letter to the community when the plaintiff attorneys chose to contact CBS Television news before the borough was served with papers about the lawsuit in Federal Court (The Highland Park Planet has not seen the papers).
“The CBS-TV news story was filled with untruths,” said the mayor. “It was the misrepresentation of the facts, plus the impending high costs of the litigation if it comes to fruition in Federal Court, as threatened, that prompted me to issue the attached letter to all our residents.”
September 30, 2015
Open Letter from Mayor Gayle Brill Mittler – Sidewalk Litigation
It is not yet 3 months since I mailed you the annual tax letter and explained that a large part of the increase in our municipal taxes came from legal fees. A sizeable portion of these legal fees can be attributed to litigation brought against the Borough for its sidewalk program. I was glad that since the latest sidewalk litigation ended in the Borough’s favor, we would be able to better control legal fees and hence, have more control over 2016 taxes.
Today, sadly, I must inform you that yet another attorney is attempting to bring legal action against the Borough for an element of the sidewalk program. Though I was not Mayor when this program began, I believe an injustice is being perpetrated against the municipality, and its taxpayers. I have an obligation, as Mayor, to dispel these untruths that have been presented in the media. After all, you deserve to know the facts as, once again, the cost of this litigation will fall on all of us, residents of Highland Park.
- Highland Park did NOT lose the last round of sidewalk litigation. To the contrary, Judge Francis found that, in his February 6, 2015 statement, Highland Park did not lose the last round of the state court sidewalk litigation. The complaint was dismissed after the Borough’s revised ordinance was presented to the court. Judge Francis specifically found in his Feb. 6, 2015 ruling that it was an “inaccurate assertion” that those suing the Borough should be considered a prevailing party.
- At the direction of the Court, Mayor and Council amended the existing ordinance to spell out the American Disabilities Act requirements of ¾”. This amended ordinance #141875 was adopted on final reading on November 12, 2014. It is true that while specific standards used in determining the need for sidewalk repair were always available in the Code Enforcement office, they were not clearly specified in the original ordinance.
- Highland Park’s ordinance was NOT found to be unconstitutional. In fact, in several places of the court transcripts of both October 23, 2014 and February 6, 2015, the ordinance was found to be constitutional:
- October 23, 2014 – “And this Court also concluded that the ordinance was constitutional.”
- February 6, 2015 – “At no point during the mitigation or in the wake of the order to show cause did the Court find a constitutional violation. ….The ordinance was always constitutional. The exact language of the ordinance is non-controversial.”
- Highland Park was NOT offered a reasonable settlement to avoid this litigation. It is true that the attorneys bringing this suit did offer to negotiate a settlement prior to filing the lawsuit in Federal Court, however they did not offer any acceptable resolution. The Mayor and Council were faced with a settlement that could cost the taxpayers over $1,000,000. Without a response from the plaintiffs’ attorneys as to a more reasonable amount that they would accept, we could not impose this type of burden on you, our residents.
Highland Park prides itself on being a walkable community. Our Walking School Buses, groups of students walking together to school (with a parent present), are clearly visible throughout town during the school year. Our designation by the Department of Transportation as a Complete Streets community demonstrates our commitment to improved pedestrian and bicycle safety. At almost every Council meeting since I have been Mayor we have heard repeatedly from our senior residents requesting safer sidewalks. We continue to respond to these individual requests.
This is what our Borough of Highland Park is all about – taking care of one another in a safe and caring environment.
I had hoped to spend most of my time as Mayor taking care of all of our residents by finding ways to help control our municipal real estate taxes; preparing for our future with a new infrastructure and capital improvements plan; creating smart, downtown development; and improving the quality of life for our seniors, our teens, our financially challenged residents… all of us. This sort of frivolous litigation attempts to divert our tax dollars and my time from the important things we must accomplish here.
I hope that justice continues to prevail for Highland Park and that we may once again work to building our community in unity without meaningless and costly distractions.
Gayle Brill Mittler
Mayor, Borough of Highland Park