Aug, 22. 2019 12.49PM judge HANSBURY No. 2b5G P. 1%1 b p~ra~~ ~~ ~~ cover: STA'~.'E OF NEB J~~S~'Y', DE~A,RT1v~NT O~ ~~ornv~r~r~ 5~.1~~'E~OR COST Off' N~'~V'.~ERS~X C~.,A►NCER'Y DY`4~SYO1V' SUSSES COUN'T'Y' PRO'T`ECTYOI~", Plaintiff, SOCKET 1~0. SSA-C-7-19 v, ~ros~~~ ~v~L~.c~ ~~a ~,A ~A~.~~A,C`E, nefendants: CYV.~~ A,CTIUN ~~ - —i - l A~~ ~ 2 zor9 Marlf~s ee ,~or@ g Yee, P,~.C h, TES MATTER comes befoxe the court by way of motions filed by Je~ey M. Patti, ~sq., counsel for defenda~,t Joseph Wallace, and. opposition. and cxo~s-motion filed by ~evi_n J. ~1e g, Esq., counsel for plaintiff State of New Jexse~r, Depaxtment of ~nviront~.e~tal Protection ("NJDEP"), and no opposition fled bar de~e~ndant Lauxa ~'4V'a7Yace,pro se, aiad the court having read and considered the pleadzz~gs .led, and for the reasons set ~o~a. in the attached statement o~ reasons, arad for good cause shown; y1 1~- IT IS U1~1' ~~S ~ ~.~x OF ~UCUST 2019 ORD~~D as follows: ~. De~endatzt Joseph Wallace's request to 'vacate ~khe court's rune 3, 2419 Qrdex ~s DEl~TI~D without prejudice. 2. llefendant roseph ~a~lace's request to stay the preliminary xestr~ints entered by the court and an~r fia ex proceedings in t~i.s matter per~d~g ~Iie outcome of municipal coin proceedings ~s DEN~D without prejudice. Page Y of 16 Aug, 22. 2019 12:49PM ~o. 2~5a F. 2~l16 ~ud~e HANSBURV 3. P~aiu~i~s request ~o compel defendant Joseph ~a~Z$ce to ~unec~ate~~r com~ry ~h all aspects of#b.e coux~'s June 3, 2019 Order is GR~T~ITEn. Continued ~on~compli,.a;~ce with court Orders may result in ~e irzapos~tion of sanc~.o~s agaar~s~ defendaza~s or the appointment of a special agent to oversee cou~p~iance ~%th the court's order. ~~~TE,p.~. C~, page 2 of l.~ Aug. 22. 2019 12:4gPM judge HANSBURY N~, 2b~0 P. 3i`16 Statemien~ of Reasons SSA-C-7-~9 Stag o~'New Hersey, nepartment o~'Environmental l'rotectior~ v.'S~a11SCe et a1., This action Yn~rol~ves a at~spute between plaintiff, t.~e State of New Jexsey, I~eparlmen~ Ea~viron~ental protection("NJDEP"},and +defendant Joseph'OU'a~Zace ("J'. Wallace") Laura'V[Tallace("L. ~V'allace"} ~col~ectiveYy "defendants"}, o~xr~ners ofreal propezt°y of and defendant located at BYock 130, Lvt 1.05, commonly known as 3 Silver Spruce D~i~re, Vernon 'To~r~casbip, Sussex County, New rerse~r {the ``pxoperty"}. P1a7nta~'~1.led a Com~Ya~t and Order to Sho~uv Cause on ~`ebxuax~y 22, 2019 alleging defendants continue to operate an ru~pemut~ed sold ~araste mam~,gem~nt them prope~y in violation of the Solid Taste IVlanage~ent Act {"S~" facility oz~ ") and xequesting the court corx~pel d~fe~dants to: (i} imnaediate~y cease receiving ~x~l and solid waste material. on the propert~r;(ir} im~aedratel~r provide NJD~P access to the property to pexform necessar y i~.spectio~.s and sam~Ying of~e property; ~~a) within ten clays, provide NTDEP nth documen ta~io~ ofpotezatial solid waste on t ie pxoperty; (~~r) wig ~uriy dais, chaxacte~rize aII filY ma~teria~ on. ~khe ~rope~ty to detertn~ne if Yt meets the demotion of solid waste an,d provide NTD~p an estimiate for t ae cost of removal; (v) ~rithin forty-fve days, place sufficient fiznds in axl escrovcr or t~rusr account to guaxantee re~tnoval of the solid ~vc►ast~ &am the pxoperty, and (vi) ~vit]~.n n~~ety days, remove and properly dispose oaf all solid wash. Complaint, Couat One. OnMarch 1, 20 ,9, the court denied piaxnti.~s request for entry of au ~xder to Show Cause based on p~aintif~ s ~~ilure to prove b~ clear aid con~anCing evidence i~ Mould succeed on the merits o~ its claixxis. ~o~v~re~er, the pasties entered into a cozasent Order consenti ng to enfry o~ paragraphs a, b, and e of the Under to Show Cause, compelling de~'endants Joseph Wallace and ~.a~ura'UV'allace to act as follo~'s: ~'age3 of16 Aug. 22, 2019 12: ~OPM P. No. 2650 judge HANSBURY 4/16 w'as~e onto (a) ~z~aediat~ly cease rece~~'iu-~g any and all fill matex~a] and/or solid the pxoperty at Blocl~ 130, ~,ot 1.0~, a~.so knavtim as 3 Silver Spruce Drive, ~lernon., ~Te~nr J'ers~y {the "site"); be~.alf of the {6) Yn~medrately pro~'~de access to NJi~EP az~dlor individuals on l Department ~o delineate the area of disturbance aid extent of the fi~~ materia a~dlor bxought onto the site, to pe~orm any sampling of ~e material on site, deems ment perfo~ra an.~r other inspectiio~ns of the property as ~e Depart on necessa.r~+' do determYne compliance Frith the S~UV~MA, tlae Water Polluti A.ct; Control Act, at~d ~~.e ~igh.Ysnds ~+l~ter ~'zo~Cec~ion a.rzd Planning complete (e) Wa~hin thirty(30} day's o~this order, provide NJD~~',sxrith full and t onto docunae~tation setting forkh ~Ze source and. nature of t}~e material brough s, , receYpt results cal all analyti to limited the site since 2009, including bud x~ot biYls oflading, az~.d identification o~ alX ~ransportang haulers. attempt ~o comply with On Iv1ay' 24, 2019, defendants submitted ~.ocuments to p~a~ntiff in an paragraph te) above. ed in ~fis On A~ri18, 2019,~rD~p renewed itis application for entry ofsly pxo~risions includ initial Febxuary 22, 2019 Ordex to Show Cause based on soil testing Yt perfornn.ed on defendants' t Order. ~n June 3,2014, property on IV~axch 14,2019 ~a accord~ce with the March 1, ~0~.9 consen ion as to a~~. si r ~~ae court granted NTDEp's unopposed request for envy of a prelima~.a~y injunct pra~'exs for relief in its Feb~xary 22, 2019 Order to Sl~o~v Cause. The June 3, 2019 Order further n rela.~ed the source required defendants to provide NJD~P ~cu-ith fu11 and compete documentatio ~.nd natuxe ofthe ma~e~ia~. brought onto the pxoperty site since 24U9. #wo instant On June 24, 2019 axed June 26, 2 19 respectively, J. Wallace ~~.ed his applications seeking:(1)to stay en~oxcement ofthe prelimiz~a~y restraints entered recons~de~ the Jua~e 3, 2Q19, as well as any further proceedings; and.(Z) to Order. plaintiff opposed these xequests an~ filed a cxoss-motion seel~ng by the corart on court's June 3, 2419 en~o~rcem.ent of litigant's or file opposition to r. rights with xespect to the .dune 3, 209 Order. L. Wallace did not join in Walla.~e's motions. Page 4 0~ Z6 Aug. 22. 2019 12: 50PM No, 2 50 ~ udge HA~ISBURV P. 5/16 Stay ar~ad Reco~as~derai~Yon J. Wallace (``defemdat~~") zequests the coin staff ~~e pxe~i~min~ry restraints entered iu~ thus matte, as well as any further proceedings. Certification of Jeffrey M. Patti, Esq, dated .dune 26, 2019 ("Patti dune 26 Cen."} ¶ 21. bef~ndant also req~xests the cow reconsider its ~'une 3, 2019 Oxdex.l De~endan~ states ~h.exe are sXz~a.ul~aneo~xs cases pending against him in the Long Hill Ivluuioipal Court that "derive from the same set of facts and cYrcun~stauces" as the instant action. such that the proceedings ixl the C1~ancer~r bi~ris~.o~ zaaust be sta~recL Pa~~ Juzae 26 Cert. ¶ 6, Defendant states the st$tus qua can be maintained duxing the pendency of the municipal court proceedings because he has abided by hYs promise to cease further delivery of soil and solid waste to the propert~r. Patti June 26 Cent. ¶ 15, De~enda~,t axgues s~c~ a ~a~'pending the outcome o~~e municipal proceedings is in the interest ofjustice and states the municipal proceedings will. likely conclude by the end of ru1y. Yd. '~ 19. befendant argues the court's entry of a preliminary i.njunctioz~ 'vvas entered as a result of defe~da~ti ~~~rok~zag his ~'~~h t~..m.endm.etat rig~it against se~~incrimination. Patti June 26 Cent. ~¶ S, 9. Specifically, defendant states "[ijtems ~, 6, 7, and S in the dune 3, 2019 Order have the appearance offna7it~' such that the court "appears to have made a final decision on this matter t~,out a~ izag pxese~.ted ~Cozn. tae de~e~da~t~" ~d. ¶ ~0. defendant states compelling him fa "interpose a defense" in this action would render his Fifth Amendment protection "mean7ngless." Yd. ¶' 11. Defendant's counsel objects to the court's decision to grant dim an extension to file date oppos~~~on but not ad~o~ the rerun date o~the return on `die Order to Show Cause from May 30, 2019. Id. ~(¶ 12-13. Defendant's counseY states atwo-weed. extension of the hearing date wo~.~.d 'Defendant filed two separate motions — a motion for a stay on June 24, 2419 and a mfltion for reconsYderation on June 26,2019. The certifications and legal briefs attached to these two motions are substantially similar such that the court considered them together m the context of this order. Page 5 of16 Aug, 22, 2~1 q 12; 51 PM No. 2650 ~ udge HANSBURY have pxovi~,ed h~ixn sufficient time to apply fox a stay of states he requested a stay oft.~~ proceedings in a P. b/16 these proceeclings. Id. ~ 13. De~Cendant 1V~a~ 3D, 2Q~91etter to tk~e cotu-~ but such request ~sq. dated rune 2~, ~U19 ("Pa~.i dune 24 was not considered. Cextification of ~effrev N1. Patti, Cert."} ¶ 13. intiffs claims. Defendant states Defendantfurther ~resexats argume~.ts as to the merits o~'pla a `mess' ~.t encouraged'' for gears. Patti. NJD~P's current action ~.s suddenly' se~~ing to "clean up NJ'DEp in ~iis action and voluzatari7y rune 26 Cert. ¶ 3. Defendant states he ~.as cooperated with states NJDEP "has presented mo evidence consented to allow soil testi~i.g. Id. ¶ 4. defendant nt a public risi~"other than.deputy AG's whatsoever"the alleged contarninantis on its property prese no tests submitted showing any pronouncements." ~d. ~{ 16. Defendant states there were no weld tests from adjacent property ovcmers cont~rn~nan~ leached into the groundwater, including or competent e'~idence tom NJDE~' that they performed the proper testing. xd. '~ 16. Defendau~ anmental Laboratories Services, ~.LC attaches a report dated Mai 30, 2 19 performed b~ Envix his own v~re~-water. Id. ~' 17, e~_ ~. ~vc~'hich he states demonstrates there Ys no contamination in nce 4r the statez~.ents included in ~s Defendant states ~e count erred by not considering this evide n McC~be and DEP Directors of Solid May 30, 20191e~ter to the court related to I~EP Com~missao Waste M~~e ~astr~' andicatang ``the current state o~ defenda~.~'s propert~r posed 1~~1e to no risk to ~ub~ic health." Patti Jwra.e 24 Cent. ¶ 14. ery l~i~isaon proceedings or plaintiff opposes defenc~a~t's requests foz a stay o~ the Chanc brief u~. Opposition to befenda~►~ts' fox reconsideration o~ the June 3, 2019 Or~.er. P~ain~s Bxi~f'). Motion and ire Support o~ its Cross-~/Iotion ("N'.mEP Plaintiff states defend~~'s requests tYff sf~~es defendant's motions are are bona procedurally and substanti~rely deficient. Yd. P1ain pxocedural~~ deficie~,t as they' raise issues that were lrnown ox Page6ofl.6 previously discoverable prior ~o the Aug. 22. 2019 12: 51 PM No. 2b54 ~ udge HAIVSBURV ff also May.3U,2U19 return o~ the Order fo Show Cause. Id. a~ ~-2. Plainti Amendment arguments have been available "for the enure co~t~o~rersy" raised any new facts ,which. would ~crarrant reconsideration. Yd. a~ 9. states c~efenda~at's 1~fifth and defendants have ~.ot Specifically, p~ain~iff states cYefendant never actively'invoked his Fife Amendment right and instead wiled to file a. motion to property considered "ail stay or "file ar~~r opposition a~.all." Yd. Plainn~' staffs the coux~ evidence it properly had before it" ~z~ ~.ssuing its June 3,20Y9 Order P. 7/16 of tie an.~1 defendant fails to present e. ~d. at 1 d. auy new facts in this ~n.stan,~ application that v~ere previous~~' u~ndiscoverabl claim of Fifth Plaintiff sates the mo~~ous are subst~n~zvel~ deficient as defendant's injurious to Y~ae p~ubYYc Amendment protection lacks merit ax~.d c~efenc~.aut's requested relief zs l ~V,J, 307,315(988} interest. NJD~P brief at 2. ~'~aintiff cites State ~r. ~obrin Securities, rnc., l l Fish Amendment rights "are nod ~nnd states pursua~at to the rele~'ant ~.obrin factors, defendant's fie different causes of action impli~a~ed here because ofthe lack o~undu.~ hardship for defendants, asserted by ~kie state and ~~ae munYcipalit~r, ata~d t,~ie public r~.terest in preven~a..g to the enviro~nn~.ent." Y~. at Y 1. ~'laintiff fiufihex states defend~t a continuing uajury never ~roperl~ asserted bus right and therefore waived his right to request a stay w'he~ he participa~ked in oral argumezat before the court on IV~arch 1, 2019. ~d. plaintiff stakes defendant's "blanket" asser~~ou of the ~riv'ilege is not appropriate puzsuant to rele~ra~.t case haw. Id. a~ 12. nt's Plaintiff states the i~njuncti~re relief entered i~. this case also does not impede defenda defenses i.~ ~.e municipal, matter. 7d. at 16. Plaintiff states the murucipa.I court clams are n.ot the Brief at ~ 7. Plaintiff states s~xae as tie claix~s in the insta~..t Chancery Di'~~sion matter. NJp~P timely compliance '~~~ the court's June 3, 2019 ~rc~er "is of the essence" given the pxaperty's e compliarsce with the location in ~e en~irontne~tally-sensitive ~zghlands regxo~. and becaus state's environtx~ental staturtes axe per ~e ~n the public Ynterest. Zd. at 16-17. page 7 0~ 16 Specifically, ~lain~i~~ Aug. 22. 2019 12.52PM No, 2650 ~ udge HANSBURY P. 8/1 6 ty, place sufficienti funds in an stiates ~.efendant's obligation to characterize the fill on ids proper and unplement a soil erosion and escrow' account to guarantee ~e illeg~~ waste's removal, sedimenf control plan axe demanded b~ conszderations of t,~e public rntere~t. Yd, ati ~ 8 19. Plaintiff ~ub~i~c" as "[x1emoval of the co~atan~uat~on stakes granting a stay ``ruould n.sk furt]aer harm do the ties and the ~rist~n.e nature of in a tiz~ael~ manner is the only way to enswre that neighboring proper the ~ighlaxads are n.ot further i_mpacted." Id. at ~ 9. erstanding as to the Yn they reply, defenda~a~ states k~e believes "there as a clew misund " Certification of ref~xe;y I1I~, anticipated breadth andloz finality of the court's Jute 2019 order. daut's courser staties he did not ) ¶ 4_ l7efe~ Patti, ~sq. dated. Jul.~~ 201.9 ("pat~~ J'~u1y 22 Cent." cx~m~.natio~. waiver" un~ after "recognize the potential for the 5~' Amendment right against self-rn he requested au e~t~nsion oftime to file his opposition on the return 5. Counsel states court staff indreafed the couact's ruse 3, 2019 Order to Show Cause. Yd. ¶ Urder w'as ``~empo~ary in. nature" and ire would be an opportu~~.ty "to cross-examine state'~ritnesses and present defense ~xritnesses d v~ras too late to request a staff at a final hearing." Yd. ¶ 6. Counsel states he was f~ucther ad~xse it a formaX application for star of of the May 30~ proceedings and he shouxd instead "make dant states this pxo~vides goad 7. Defen proceedings after the may 30~' hearing eras decided.'' Id. ¶ cause to reconsider the co'urt's poor 4rde~_ Yd. ~ 9. Motions for r~cons~deration are governed by R_ 4:49-2 requiring or reconsideration seeking to after or az~aend ajudgment oz orc~.eer "a motion for rehearing .. , Ito] state with specificity ~.he s or controlling decisions which basis oz~ which at is madey including a statement o~ t~.e matter erred." Reconsidera~on is a rr~atter it counsel believes th.e court has overlooked or as to whic~a has wit~~in the sound discretion of the court anal is ~ko 'be exercised "fox good causE showza anal in Y~i.e service of tie u~].~imate goal of substantial justice." 3ohnson v. Cvl~].op Page S of Y6 Strapp~x~ Corp., 220 N.J. Aug. 22. 20 i 9 12: 52PM ~ udge HANSBURY P. 9/16 Flo, 2 50 Super, 25~, 257(App. J.77i~r. 1987); see also, Currmain~s ~. ~abr, 295 N.J. Super. 374, 384(A~p. Div. 1996). klXr~iermore, a motion for reconsideration ~s not au opportunity' for a second bite at the apple. Yt is ~aot a mechanism for unhappy li~gants to attempt once more to aix their pos~~~ons and re-litigate issues already decided. C~imr.~~s,295 N'.r. at 385_ R.econside~ation is ~'~~hi.n the court's a discretion. and is util~.ized only' in that naxrow corridor were tkae court's decision rests upon ance of probative, ps~pably incorrect ar irra~onaY basis, or the count failed tv appreciate the signific competent evidence. Y~. ~econsideratiox~ is not a ~'ehi.cle ~tl~rough which ~o raise near arguments or ~o simply' xeprise ~lae xnitia~. mo~.on. Cruido ~. buane 1Vlorris LLP, 202 N.J. 79, 87(20 .0} (citing certif. Capital ~~n. Co. of Del. Va11e ,Inc v. Asterbadi, 398 N,~. Super. X99, ~ I0 (App. 17iv'.), denie 19~ N.J. 521 {008}~, Defendant fai~.s to preset an adequate basis fo~c reconsideration ofthe court's June e as his Order. Defe~adant relies on the court's faaluYe to considex two pieces of evide~.c reconsideration —(1)state~aents by DAP officials contai~aed in defendants' May 30, 3,2019 basis for 20191e`~er to er test the court indicating "the property posed ~.ttle to no risk to pubic health;" anal(Z) well~wat results perfozmed on defendants' property aid the accox~panying xeport issued on lv~a~` 30,2019. ' before See Patti dune 24 Cer~. ¶¶ ~4-16, e~. E. Neithex ofthese pieces of e~'~dence were pro~erl~ nt is die court at the time of its' Jwtae 3, 2019 decisYon granting a p~elinvn~ar}~ injunction. Defenda a.~d overlooked in his not entitled to reconsideration on the basis of evidence he had available l~iv. 1999) in~.tia1 argument. See Morey v.'OV~ild~ood Cresti Borou , 1 S 1~.~. Tai 335, 341 (App. '~vXll heax t}ais ("when r~ew inforn:~ation is provided ou reconsideration, tlae cout~ generally ~.e first information ~vv'hen the near or add~.tional information could not l~a~re been provided o~. application."). "~'o validate such a practice ~vvou~d encourage at~orne~s to hold bacl~ page 9 of 16 evidence and Aug. 22. 2419 12; 53PM ~ udge HAIVSBURV No. 2650 P. 10/16 their mope for reconsideration on a regular basis Yn ordex to get a `second bite ~~ the apple' of ac~versax~y' prevailed on the ~nitiaZ motion." klisco ~r. Board of Educ. o~ City of Newark, 349 ~T,r. r seeks to Super. 455, 463 (App. Day. 20U2). here, defendant possessed the inforri~ation ~e no y preset to the couxt when the court entered its initial O~cder such thati defendant had the oppo~c~tunit to present this information to the court via opposition on ~k~e~ return of tae Order to Show Cause. . In fact, the spurt granted defendant's request for an ~xtensfon. of time to dale such opposition ~+, despite this extension, howev`ex, defendant ~ailec~ to oppose plaintiff's applicatio~a~ Accordi~agl defendant has failed to sk~o~vv tie court's decision rested on palpably incorrect or rtra~io~.a1 basis ox justify _ that t~.e court failed to appreciate probative, competent e~v7idence sufficient to reconsideration. Defendant Joseph 'Q~'allace's request to vacate ~.he court's rune 3, 2019 4rde~ is DE~TIEEn witb~ou~t prejudice. nefendant J. Wallace also fails to present an adequate basis for a stay of fhe cu~nent to Chancery Division proceedings. Defend~a~ presents zoo justrficatiox~ for this corxrt's uiabi~~~y' hold proceedings concurrent witka the municipal court. 11~unicipal cow~ts have jurisdiction o 'er cases that arise within. t~.e municipality or joink aria they sere. N.J.S..A.. ~ 2B:12-~,6. Their ~wrisdi~c~ion extends to the foI].o~ring note,vs~ort~.y areas: violations ofrnotor vehicle and traffic laws; vioYations ofcounty'ox mwnYcipal ordinances; disorderly pexsons offenses,petty disoa~derYy persons offenses, anal other non.-indictable offenses nod zeserved to Elie l~evv` Jersey 5upex~or Court; violations offish at~d game laws and laws xegu~ating boating; and offer proceeda~gs desi~aated by statute. State v. McCabe, 2D1 N.J. 34, 37 (20~ 0}. Municipal courEs therefore hold only limited jurisdiction over specific ~att~rs; in this case, that includes defe~.dant's alleged 95 violations of municipal ordin~n.ces. These oxdina~ice ~tiolations do z~ot impede t~.e Superior Court's ability to enforce state environmental protections statutes and grant izaa~xnctive relzef accordingly. Moreov'ex, Wage 10 of16 Aug. 22. 2019 12; 53PM judge HANSBURY P. 1 1/1 b ~o. 26 0 the filing of p~aintif~s defendant was avva~re of these municipal court proceedings at the tune of and had amble Co~apia~nt axed Order to Show' Cause in phis mattex on Februax~r 22, 20X9 opgorhxnity si_n.ce that time ~o rec~uest a stay. De~endaut's assertion o~his Fifth Amendmentright as a defense in th.~.s action equally merit. befenda~t states tae is unable to respaz~d in this c~'vil. action '~'ithout lacks inc~uiating himself in. tie pending mtxr,~cipal court criminal matters. "Generally,the question., regarding a civil action v~r~,en the p~zvilege against self~ncritn3n~tion is present, should be whethex fit] wou~.d impose undue hardship on a defexid,ant and ~crould thereby expose Cthe defendants to uniaecessary ad~v~rse Inc., 111 N~r. consequences [in] e~ercYsing the consfituttonal pri~'ilege." State v. Kobran Secur., 307, 314 (1988}. Two important considera~zons in this in.quuy acre ``whether t~.e civil proceeding seeks only a monetary recpv~ry by against a defendant" anal "whether the two actions are nearYy to the public identical ~.scope."Id. Spec~~acally,"v~hen reliefis sought to prevent co~i`1$ued injw~t' ~ances .. . . . .the civzl proceedings shau~d not be stayed except in the most unusual circutns criminal or [including whey it] would expose a litigant to undue risk oflosing t ae civil case facing prosecution." Id. ~'h.e Suprexae Covert fiutber notes ``the fact that a [persons is indicted cannoti give undex~~'iug sub,~ect [the perso~~ a blank check to block all ci~'il 7itigafi.on on the same or related matfer." Yd. lt to `~'he releva~.t inquiry pursuant to the Kob~in factors weigh agaanst allovsr~z~g defendaa ce any undue assert his Fifth Amendment right in t~.i.s c~~'il acfi.on. Defendant would noti experien e does not hardsk~i.p or ad~'erse consequences b~' responding ~ this ynat~er. Defendant's respons to plain~~fPs inquire 1~aim to admit guilt or otherwise ~.ncrirzasnate hin~aself, only to respond find suffici~x~t al.~egations or a.~ter~.a~i~'ely request relief from the court. The court also does not actions. 1'he similarity of the civ~]. Cb~.ancery D~~ision ac~~on and floe criminal xnunrcip~tl court PageX~.of16 Aug, 22, 2Q19 12:54PM ~ud~e HANSBURY No. 2 54 P. 12/1b attached municipal com~Ya~nts include charges related to violation of stop work orders, ~`tu~ivg business i% a xesidential zone, and placement of soils wi#~out a p~rm~it. Patti ~un~ 26 Cert., e~. B. Each of these seek to sanction de~'ez~datit fox ~rio~a~o~a o~ zx~u~ai.c~pal o~dit~azaces. '~'he instant Chancery bivision matter, however, seeks more than monetary sanctions and requests injunctive reliefto halt defendax~~'s actions and take remedial measures. Therefore, r~vhile the matters maybe based on sim~ar facts and violations by defendant, plaintiff s requested relief with respect to ~.ese 'viola~~ons ~s different. Moreover,pYaintYffseeks reliefreYate~.to tie public Ynterest anc~ preservation of property located in the en~'irox~x~,enta~~~'-p~o~ected ~agbJ.ands axes, requiring a heightened Ie~re1 of scru~tin~r. Defendant's extensive municipal complaints dating bacl~ to J~.Iy 201S .illus~xate his conti~u~ed ac~zo~s poten~iall~ in violation ofstate and local laws. It Ys important the court not a11ow defendant to use the mu~~itude o~ za~.wr~icapal. ac~io~.s pending agaynst him as a shield against the imposition of uijunctive relief to stop his behavior. ~e~e~.daat J'oseph'4Vallace's request to stay the preliminary restraints entered by ~.he court and any fiuther p~oceedizags~ ~x~. phis ~aattex pending the outcome of municipal court proceedings sten~ing from the same facts and circumstances is DElV1~D ~w'~tb~.ou~t pre~r~dXee. E~forcernent of~itr~ant's ~~~hts Plaintiffrequests t ae couxt"xeite~ate" ~o defendants the necessity to comply w1.th the court's ~u.ne 3,2019 in a timely manner. NTDEP grief at 20. Spf~C1~1Cdll~', plaixa~~££requests defe~.d~ts be compelled ~o comply with the requirements to provide documentation regarding the source and nature of the materials defenda~.~s b~ro~g~af o~.to ~kae~r pxoperty. Id. Plaintiff states defendants eza~exed into a consent Order on March 1, 2019 which included a provision far the production of such documents by .f~pril ~, 2019. Yd. at 20. plaintiff states defendants were further required to produce documents pursuant to t~a.e couxt's J~.uae ~, 20 .9 4~der. Yd. at 20-21, plaintiff states Page 12 of 16 Aug, 22, 2019 12:54PM judge HANSBURY ~ P. 13/16 No, 2650 defendants stated on the record on 1vlarch 1, 201.9 they had ``substantial documentis" which v~rould have not satisfy ~1ies~ production requirements. ~d. at 21. Plaintiff states, howevex, defe~.dants produced tae full and complete documentaY~on setting forth the sot~.rce and nature of the rr~aterial azal~r document brought onto the site since 2009 as required. ~d, plaintiff states de~e~dants' produclao~ occurred on May 24, 2019 az~d ~avas composed of (1~ analytics for two projects not s" of oo~u.ected to defendants' property; and (2) xeceipts fora ``mere fraction of tie 1:ruckload matexial brought ~o the properly. dY e~._ T~. Plaiilti~ states msuy of the receipts indicated waste ~aad been improperly' bxo~ug~.t to the site after dEfendants entered ~xa~o the March 1, 2 19 consent Order, tYiereby demonst~a~ing con~aacious be~.avior. rd. Plaintiff states it is not seeking coerc~~re or pun~i~ive relief at this time, only an Oder requiting d~fendai~.~s to immediately comp~~',wi~~ the June 3,20~.9 Order, ax~cluding ~1ae full quad complete production o~ doc~a,ments. ~d. at 22. Defendant r. ~alXace {"defendant") opposes plains crass-motion to e~orce li~rigaAt's t rights. D~fendan~s' ~~pos~~ion to P~aantif~s Cxoss-Motion ("bef. app."}. De~e~dan states ``[p]laanti~~ is mistaken ~v~vhen i~ sags the hash not comp~aed with tl~ls court's[Order." Cert~~icatian g doc~aents o~ J'ose~ph Wallace. ~ 3. Defendazat states he provided plaintiff with a CY3 containin associated with an QPRA xeq~uest, indicating "NJ1~E1' has been ire the ppssession o~'th~ conte~.~s t of the CI] for year 'while claaxa~in.g Y didn't provide them Ynfornc~ation." Id. ¶ 4. Defendan states plaintiff was also av~rare of material that came from the ~Tirayne Costco site based on s~ate~xa.ents made b~' I3EP director of solid waste e~forcemen~, ice Hastxy, in a 1V~a~ 20, 2019 N'e~r jersey herald article. Yd. ¶6,ex. C. Generally, defendant states the CDs atad. materials he attaches indicate 10. the "N~~~P Yeas been a~rar~ of the project on z~a~' property since as far back ~s z014.'' Yd. ¶ befezadant's counsel also states he has ~~o~vic~ed pl~i~tiff"everything in[his] possession applicable to t~s matter." Patti July 22 Cep, ¶ 3. Page ~3 of16 Aug, 22, 2019 12:55PM judge HANSBURY Pao, 2650 P. 14/16 A claim that a party is acting in violation ofcoin Oder should be brought before the court that issued that Qrder by a motion fax xeliefiu aid of litigants' righTs under l~. 1:10-3. Asbuxv Parl~ ~d. of Edu.c. v. New Je~sep Dept of Educ., 369 N,~'. Super. 481, 486 (App_ Div. 2004). BefoYe relief cap be a~for~ed, the coin must be satisfied that the pari~r had the capacitiy do comply with the Order and ~~fully refused. Presslex & ~Verniero, Current T.J. Court Mules, cmt. 4.3 oz~ R 1:~0-3 (2019). Sanctions puxsuant to rZ. 1:1~~3 $re x~ot intended to be puniti~'e buti are a coercive measure to facilitate th.e enforceule~~ of a court Order. Pressler & Verniero,cmt. 4.4.1 on ~.. 1:Y 03; l~idle v. Denruso 29g ~r.r. Super. 3'l3, 381 (App. Div. 199 . Th~.s, the scope of relief is "limited to remediatian of~e ~riolation of a court Order," Pressler ~ 'Verniero, caaat_ 4.4,1 to ~. 1:10-3. Here, defendax~~ J. '4~l~allace has failed fio comply with the court's p~o~ Orders of March 1, 2019 and June 3, 2019. Bona orders required de~e~dant to produce all applicable documents c~.isclosing ~e event and nature of such waste currentl3r on the property. Defendant pxo~'zded only ~»~ma1 do~u~aelats in response to these Orders. T`he response ~~ras composed of a sole communication to plaanh£~ dated May 24, 2019 a~ad included analytics fro~ra. two projects {the "~S~i1'ay~e '~o~n Center Project" and the "~K project"} aid a "Cl~ containing ~e N'J~~P's responses to Mr. Wallace's OP1iA req~es~." N'J~Ep Brief, ex. D.'~`~e production also incXuded copies ofs}uppiug tickets a~ad receipts for "recy~lab~.e materials'' comprised o~four shipping tickets dated ~To~'e~aber and I~ecembe~ 2D ~ 7, ~o~ur sales receipts datied February 6,20Y9, Mich ~ ~,2019, N~arch I~, 2419, a~a.d .A.pril Z S, 2019, and Cep. illegible recyclable mate~ial.s receipts forms with no clear date or other ideniifiab~e information. Id. The e~e~.t of dumping aid mate~al allegeclly on the property does not match the nu~aber of documents produced by defendant. These documents do not provide the xequired level of detaYl encompassed yin the court's Orders and including gaps Page Y4 0~ ~ b Aug. 22, 2 19 12;55P1~ judge HANSBURY Igo, 2650 P. 15/16 in tiinae Azad. unidentified sources. Moreover, plain~~~'ould be nonetheless entitled to production ofthese dooumentis pursuant to R.4:10. Specifically, lam. 4:1 D-2 penx~its paxti~es to "obtain c~.iscovery regarding auy Ynat~er,not p~i~'ileged, ~w'ki~.c~ is relevant to ~e subject matter involved in ~e pending action." The requested documents detailing the source anal nature of the allegedly prohibited materiaY being b~ough~ onto defendant's property rebate directly to pl~i~~~~~s request for an in,~ux~c~.on ~o stop such illegal dumping. Fl~i~a~ states it fallo~uved up with.~.efendant via Ieitex axad phone regarding Baas ~~~~mal document production and messing doctuuents w~.th no response. Certification of Sevin J. Flemi~ Es , ¶¶ 1517. Through this incomplete docume~.t p~coduction, defend~t ~cnr~ u.11~r failed to comply with the court's Maxey 1,2019 and dune 3, 2019 orders. ~oreo'ver, plai«~.iff mailed a latter to the coux~ dated August 5, 20~9 detailY.ng defendant's continued non-compliance Frith respect to doc~xment pro~.uction. Plaintiffs letter also discussed defendaxa.~'s ~a~lure to comply with additiv~al deadlines pursuant to the June 3, 2019 Ordear, inclu.da.ng charactez~~~.~io~. of ~'iIl materiax via sampling, pla~ce~ezat offinds in an escrow aocount to ensure removal of the w'as~e ~iroa~a the property, and the impleme~.tation o~ a soil. erosion and sedirxletat control plan. Defendant does not dispute phis noncompliance but instead states on~~'t~aa~ he has a "valid at~d ~egitimata defenses to plaintiffs allega~io~.s" and present evidence suggesting there is no contaminafi.o~. on tie property or its adjacent properties as a res~l,.t of def~ndant''s actions. See Patti June 26 Cert. ~~ 5, 16, 17..A.s discussed, defendant's justifications for Isck o~ compliance related to ~e Fifth Amendment and inability'to request a stay lack merit. Additionally, de~en~dant's allegations that plai~~kiff a~xeady possessed tie relevant information, xe~a.~ed to the material o~ t~.e property are irrelevant. Pursuant to t~.e covert Orders in this action, defendant is under a renewed obliga~o~,to `~ro~vide 1~TrDEp with full and co~ap~e~e documentation sating forth Page 15 0~ ~6 Aug. 22. 2 19 12:5~PM judge HA~ISBURY No. 2b50 P. 1b/16 ~e source and r~att~e of ire material brought onto the site since 2009" without regard fog docuffie~~s potentially already in plain~i~~s possession. The cotyrt noes Y.. 'OV'allace did not join ~ ox ~i~e opposition to r. ~allace's rx~o~ons. A,dd~~zo~ally, at oral argwnen~, ~.e parties discussed au intent to rexxaove Y,. 't~l"'a1~.ace from these proceedings as ~.he parties are currently co~tienrap~ating divorcing. As such, the cata~ 'dill not consider ~nforoement ofits ~~n.e 3, X019 with respect to L. ~Val~ace at this time. Pla~zati.ff's request to compel de~e~,dant roseph 'OV'allace to i~amedza~e~~ comply wig ail aspects of the cvur~'~ June 3, 2019 Order is G~RAN'~'ED. Continued non-compliance ~.~a court ~~de~s may result ~n the impos~.~on ofsanctions against~defendaz~~s or t~.e appoinxment ofa special agent to o~'exsee compYYance with the coma's Order. page 16 of16