KEARNY — It may only be a dumping ground for construction debris and certain types of wastes but its possessive owner is as loathe to give it up as if there were gold in them thar hills.
In what amounts to a last-ditch effort to hold onto a 110-acre parcel at Bergen Avenue and Newark-Jersey City Turnpike known as the Keegan landfill, the Town of Kearny is pinning its hopes on the highest court in the land.
On June 6, Town Attorney James P. Bruno filed a 66-page petition for a Writ of Certiorari with the U.S. Supreme Court asking the federal justices to review the town’s case.
Adam Feldman, a Columbia University law professor who writes a blog about SCOTUS, said the Court “annually grants approximately 5% of the petitions to hear cases it receives.” Based on that, Feldman figures Kearny’s chances for a hearing were “unlikely.”
But Mayor Alberto Santos said the town is committed to pressing forward because it’s waging “an important legal issue.”
If the Court does hear the case, it will be asked to rule on the merits of this question, as posed by the Kearny legal brain trust: “Whether the Contract Clause of the United States Constitution permits a state entity to use its powers of eminent domain to impair a pre-existing contract in light of this Court’s holdings in United States Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977)?”
Essentially, Kearny is arguing that the N.J. Sports & Exposition Authority — which is looking to take the landfill via eminent domain — broke an agreement made in January 1975 by its predecessor agency, the N.J. Meadowlands Commission (NJMC), to, ultimately, close the dump and give Kearny $3 million to help redevelop the land for passive recreation and possibly a solar-energy facility.
That argument has been rejected twice — first, by Hudson County Superior Court in July 2016 and then by the N.J. Appellate Division in November 2017. And, in March 2018, the N.J. Supreme Court refused to consider the case.
As its lease for the landfill was drawing to an end, the NJSEA advised Kearny it intended to extend the landfill’s life through 2020 — a proposal at which the town balked — which ultimately led the NJSEA to file a condemnation action in July 2016 to take the property as it offered to pay Kearny $1.88 million for the land.
At the same time the town is contesting the NJSEA’s right to take the property, it is also challenging the land’s valuation, claiming that if it is compelled to sell, it should get at least something closer to $10 million for it.
In the past couple of years, Kearny has hired various environmental and legal experts in hopes of building its case against the NJSEA.
Earlier this month, in response to what Santos characterized noxious smells arising from “more frequent” weekend deliveries of industrial sludge, from the Passaic Valley Sewerage Commission to the Keegan dump, the town posted on its website a telephone hotline that residents were invited to call “to log complaints” about “odor emissions” from the landfill.
The phoneline links with the Hudson Regional Health Commission, which investigates air quality complaints in the county. During the three weeks that the line has been up, no citizen complaints have been received, Deputy NRHC Director Angela DeQuina said.
NJSEA spokesman Brian Aberback said last week, “There has been no increase in the amount of sludge that the NJSEA receives at the Keegan landfill from the PVSC.” As for the latest legal development, Aberback said: “Given pending litigation, the NJSEA has no comment at this time.”
Beyond these battles, though, lurks a potentially more ominous issue: who will pay for the cost of closing Keegan to state specifications, once the NJSEA is ready to do so. One NJSEA expert has projected it could take as much as $30 million to do the job. Kearny contends that under a 1975 NJMC-Kearny “Green Space Initiative” agreement, it is exempt from any such payments — but the NJSEA, whose predecessor agency previously spent $25 million to get Keegan in working order, has disputed that.
Bruno, meanwhile, said he expects to learn sometime next month whether the High Court will entertain the case. The court is currently in summer recess.
