Save Sandy Hook.org

Save Sandy Hook will Sue NPS Over Lease

August 13th, 2004

Save Sandy Hook (SSH) put the National Park Service on notice last week that it will bring suit in federal court to challenge a lease for historic buildings at Fort Hancock signed by the agency and a private developer.

Save Sandy Hook (SSH) put the National Park Service on notice last week that it will bring suit in federal court to challenge a lease for historic buildings at Fort Hancock signed by the agency and a private developer.
Charging the proposed redevelopment "mortgages Sandy Hook’s future in service of a thinly disguised corporate office park," attorneys for SSH Friday filed a protest of the 60-year historic lease signed by the NPS and Sandy Hook Partners LLC (SHP) on July 9.
"This letter shall serve as notice of Save Sandy Hook’s intent to sue in federal District Court to enjoin and cancel the lease under applicable federal laws and regulations including, but not limited to, the NPS Organic Act, the Gateway National Recreation Area authorizing legislation, the Coastal Zone Management Act, the Historic Leasing regulations, and the National Environmental Policy Act," the protest letter dated Aug. 6 reads.
Attorneys for SSH filed the protest after NPS Regional Solicitor Anthony Conte advised them that there are no administrative avenues to challenge the lease that gives the private developer the right to rehabilitate and lease out 36 historic Fort Hancock buildings for a mix of uses.
The maneuver was a hedge, filed within 30 days of the lease signing, to ensure SSH doesn’t lose that course of redress if the government reverses itself and decides an administrative remedy exists, sources said.
The protest letter asks the NPS to cancel the lease and bar SHP, headed by James Wassel, Rumson, from working on the Fort Hancock buildings included in his proposal pending resolution of the matter and to confirm that there are no administrative remedies to exhaust.
The protest letter was directed to Marie Rust, Northeast Region director in Philadelphia for the NPS, and the three other departments in the Office of Hearings and Appeals for the U.S. Department of the Interior in Arlington, Va.
Copies were sent to Interior Secretary Gale Norton, NPS Regional Solicitor Anthony Conte, Acting Sandy Hook Superintendent Richard Wells, Rep. Frank Pallone Jr. D-N.J., and Sens. Jon Corzine and Frank Lautenberg, both D-N.J.
Paul P. Josephson of the Princeton law firm Hill Wallack filed the protest on behalf of the grassroots group formed to oppose commercial development on Sandy Hook.
The next step for SSH, according to Josephson, depends on the NPS’s response.
"We would hope the NPS would take these complaints seriously and agree to cancel the lease ... and put this project on hold until Wassel can come up with the financing," he said Tuesday.
"Assuming the NPS doesn’t capitulate to us this week, I anticipate we will be going to federal court and seeking temporary and permanent restraints preventing the park service from going forward with this lease."
Josephson said in that case, he will seek an injunction "within a matter of weeks, not months."
The board of Save Sandy Hook authorized the hiring of Hill Wallack to pursue legal action at a regular meeting Thursday, he said.
"Our process has been thoroughly vetted by our attorneys and by technical and policy professionals and we’re absolutely confident that it will stand any legal challenge," said Sandy Hook acting superintendent Richard Wells Monday.
At the same time, Pallone firmly positioned himself in opposition to the NPS plan or any scenario that includes private development at Fort Hancock.
"I am opposed to the Wassel plan," Pallone said Friday, "or any other plan involving a commercial investor."
Instead, according to a spokesman, Pallone "would like to explore ways that the government and the nonprofits can work together to restore these buildings."
"The congressman is pleased they [SSH] will be filing a suit because he continues to question procedures the NPS has taken since the very beginning," said Pallone spokesman Andrew Souvall. "He’s also concerned about financing the project and how the lease was handled."
Pallone has announced plans to hold a public forum in September to air public concerns about the project and has requested that NPS director Fran Mainella or other high-ranking officials from the Department of the Interior attend.
Souvall said there had been no response to Pallone’s letter to Mainella as of Friday.
The protest letter said the lease awarded to SHP is void and should be canceled because:
• It isn’t consistent with the NPS’s mission to provide programs for the preservation, restoration, interpretation and utilization of historical, cultural and architecturally significant resources at Sandy Hook; conserve the scenery and natural and historic objects and wildlife there, provide for the enjoyment of these resources and "leave those resources unimpaired for the enjoyment of future generations."
• It violates laws and regulations that require the NPS to secure "payment of rent equal to or higher than the property’s fair market value rent." In fact, it said, SHP has "not agreed to pay any rent in the traditional sense" but will pay only a service district charge.
• The NPS didn’t calculate fair market value rent or include terms in the lease that ensure rents over the 60-year term will keep pace with those in an area where land values are among the highest in the nation.
• The SHP proposal doesn’t comply with the Request For Proposals (RFP) and by choosing the developer the NPS created "an unequal playing field" that benefited SHP over other proposers. SHP, it says, "failed to provide compelling evidence" of its ability to secure the necessary funding in the form of firm and detailed loan commitments as required in the RFP.
• The NPS "repeatedly altered material portions of the RFP by giving SHP additional time to provide funding guarantees that were required at the time its proposal was submitted." It said the agency rejected other proposals for not meeting the same requirement it waived for SHP.
• The NPS "illegally altered other material terms of the RFP throughout the course of the procurement" like upping the lease term from 15-25 years to 60 years for SHP.
• The lease violates NEPA because environmental impact and traffic studies are inadequate and a Natural Resource Inventory for Sandy Hook was never conducted.
• To date, the NPS has not released SHP’s unredacted financial proposal, the agency’s evaluation documents, the Natural Resource Inventory, the amended management plan for the Sandy Hook Unit and other critical documents needed by SSH to fully evaluate and challenge the lease. The protest includes a Freedom of Information Act request for the documents.
The protest said the NPS’s decision to award the lease to SHP violates requirements for leasing historic properties, and the agency’s statutory mandate to preserve National Recreation Areas for the use and benefit of the public.
"The lease is void and invalid," it said. "The NPS’s actions are wholly inconsistent with its obligations to the public."
SSH attorney Josephson has a background in government regulatory law, public procurement and redevelopment. He served as director of the division of law for the state during 2003, overseeing 550 attorneys who represent the state on civil matters.
In an interview, Josephson said the SSH case speaks to his experience because the "state is littered with development projects of developers who had great dreams but could never bring money to the table at the end of the day.
"For me it’s very important that rule number one in development is the developer has to come to the table with money. When you see somebody in the process for four years and he hasn’t been able to provide that kind of assurance, it really gives you pause. "
A resident of Interlaken, Josephson said he spent "every summer while growing up in Long Branch and fishing on Sandy Hook with my grandfather.
"As a young boy I remember clambering over the gun batteries. It’s a special place for me, and I’m very concerned that the park be properly managed and restored.

the hub Front Page August 13, 2004
BY GLORIA STRAVELLI
Staff Writer