Attorney for Plaintiffs

Plaintiffs, Maureen Nevin, Patrick Schiavino and Patrick Fasano, by way of complaint say:

1. Plaintiff Maureen Nevin is a resident of Asbury Park, New Jersey. Plaintiff Patrick Schiavino is also a resident of Asbury Park and is a developer of real estate in Asbury Park outside of the Waterfront Redevelopment Area. Patrick Fasano’s principal place of business is Asbury Park and he too is a real estate developer.

2. Defendants are the City Council of Asbury Park (the governing body, which includes the Mayor), City Manager Terence J. Reidy and Asbury Partners, the redevelopment entity designated by the City of Asbury Park to redevelop the Asbury Park waterfront.

3. On July 15, 2004, defendants conducted an executive meeting, i.e., a meeting closed to the public, at which meeting was discussed an amendment to the a June 2003 ordinance that set standards for a tax abatement agreement between the City and Asbury Partners covering the Waterfront Redevelopment Area. The non-public discussion of tax-abatement amendment constituted a violation of the Open Public Meeting Act, N.J.S.A.10:4-6, et seq. N.J.S.A. 10:4-11, the controlling statutory provision, reads as follows:

4. On August 4, 2004, the defendant City Council passed Ordinance 2700, entitled "Ordinance to Adopt a Revised Standard Form of Tax Abatement Agreement for Properties within the Asbury Park Prime Redevelopment Area". See Exhibit A. This ordinance amended the original June 2003 ordinance.

5. The passage of this ordinance violated the provisions of N.J.S.A. 10:4-6 in that, inter alia, the amendment was discussed clandestinely in the executive session held on July 15, 2004 and in that the subject matter did not fall with any of the statutory exceptions. The closed meeting wherein one of the most vital of all economic issues (taxes) was being discussed secretly smacks of star-chamber tactics and undermines our democratic principles.

6. N.J.S.A. 10:4-5 reads as follows:

7. As a direct and proximate result of the violation of the N.J.S.A. 10:4-12, Ordinance 2700 is void.

Wherefore, plaintiffs demand judgment determining that Ordinance 2700 is void.

1. Plaintiffs repeat and incorporate the allegations of the previous count.

2. N.J.S.A. 40:49-2 reads as follows:

3. The provisions of this statute were not satisfied by the City of Asbury Park in that, inter alia, there was no second reading of the ordinance. Moreover, the publication requirements were not satisfied. In particular, although no limitation is intended, the ostensible first reading (and this is an arguendo assumption) occurred on July 15, 2004. However, given the fact that the executive meeting violated the Sunshine Law, inasmuch as the tax-abatement amendment was discussed secretly, the first reading (if the first airing of the results of the discussion can be considered, arguendo, a first reading), must be considered a nullity. Simply, the first reading would be the tainted fruit from a forbidden tree.

Wherefore, plaintiffs demand judgment determining that Ordinance 2700 is void in that the requirements of N.J.S.A. 40:49.2 were violated.

1. Plaintiffs repeat and incorporate all previous counts.

2. Defendant City constantly violates the Sunshine Law by considering public matters in closed or executive sessions that do not fit within the statutory exemptions. In addition to discussing the tax abatement at the July 15^th executive meeting, there are many other actual violations. For example, plaintiff annexes as Exhibit B recent executive agenda showing that the City’s normal course of business is to consider public matters in secret session in violation of the Sunshine Law.

3. N.J.S.A. 10:4-16 empowers this court to grant injunctive relief to enforce the Sunshine Law.

4. Plaintiff seeks by this count to invoke the injunctive jurisdiction of this court to enforce the Sunshine Law and to award damages for its violation, all as provided by the statute.

Wherefore, plaintiffs demand injunctive relief enjoining further violations of the Sunshine Law, the issuance of such other orders as may be necessary to force the City to comply with the provisions of the Sunshine Law and entering judgment for monetary damages as provided by law.

1. Plaintiffs repeat and incorporate the previous counts.

2. N.J.S.A. 40A:21-15 reads as follows:

3. Upon information and belief, Asbury Partners has not paid real estate taxes in connection with property covered by the proposed abatement, as set forth in Ordinance 2700. At the time the application for tax-abatement treatment was filed, real estate taxes were substantially in arrears on property Asbury Partners acquired from Ocean Mile, the original designated redeveloper--notably a parcel commonly known as "C-8". Also upon information and belief, Asbury Partners has not paid real estate taxes on substantial other portions of the Waterfront Redevelopment Area.

4. N.J.S.A. 40:21-15 was violated because the application for abatement was filed by Asbury Partners at a time when the property taxes were delinquent. Plaintiffs assert that Ordinance 2700 in form appears to be a method and formula to obtain tax abatement but is in substance the creation of the actual tax abatement.

5. This statute must be viewed as a jurisdictional statute, i.e., City Council did not have jurisdiction to entertain the abatement application because the jurisdictional predicate, namely paid-up-to-date taxes, was not satisfied.

Wherefore, plaintiffs demand judgment determining that Ordinance 2700 is void based on the violation of N.J.S.A. 40:21-5.

1. Plaintiffs repeat and incorporate the previous counts.

2. The area embraced by the tax-abatement agreement constitutes a substantial geographic area of the City of Asbury Park—approximately one mile of beachfront property.

3. Certain other areas of Asbury Park have also been designated as redevelopment areas, such as the downtown commercial district. Plaintiffs Schiavino and Fasano are developers in the non-waterfront redevelopment area.

4. The preferential tax-abatement treatment City Council has afforded to Asbury Partners and not to developers in other parts of the City violates fundamental fairness and Equal Protection of the Laws, as guaranteed by the 14^th Amendment to the United States Constitution.

5. The favorable tax treatment given to Asbury Partners by the City unreasonably discriminates against non-waterfront developers.

Wherefore, plaintiffs demand judgment declaring Ordinance 2700 to be invalid on the basis that the City has unreasonably discriminated against all other developers by giving preferential treatment to Asbury Partners.

1. Plaintiffs repeat and incorporate the previous counts.

2. N.J.S.A. 40:49-2 (a) reads as follows:

3. N.J.S.A. 10:4-7 reads, in pertinent part, as follows:

4. Ordinance 2700 is a Rosetta Stone. It is one of the most difficult and complicated ordinances to understand ever passed by the City. It is also one of the most far-reaching. Not only are the property owners and residents of Asbury Park affected by the ordinance but also the ordinance reaches far beyond the borders of the City. For example, none of the tax revenue raised in the Waterfront Redevelopment Area will be allocated to schools. That means that all the rest of us will have to make up the difference. Given the complexity and extensive range of 2700, there was a special need to comply strictly with N.J.S.A. 40:49-2 (a). Due Process of Law, as guaranteed by the Fourteenth Amendment to the United States Constitution, the raison d’etre for this statute, requires far more clarity and precision—even if the statutory mandate requires concision. Given the complexity of the ordinance, Due Process dictates that the public should be accorded reasonable and sufficient time to analyze and understand the ordinance. Plaintiffs want to make it clear that Ordinance 2700 may or may not be fair and reasonable. However, the ordinance was virtually a fait accompli and crammed down the public’s throat when it was introduced. Essentially, the governing body abdicated its responsibility to govern to Asbury Partners. That much is clear by considering Councilperson Mellina’s reason for passing the ordinance: "If we don’t approve it, they won’t build".

5. Plaintiff asserts that the notice (Exhibit C) does not comport with the statute and due process of law. The notice is far less than adequate to satisfy due process standards.

6. Defendants deliberately created confusion in the public’s mind in a number of respects including, but not limited to the following:

7. The entire process involving the passage of Ordinance 2700 violates both the spirit and letter of the cited statutes as well as Due Process of Law.

Wherefore, plaintiffs demand judgment declaring the notice to be invalid and declaring Ordinance 2700 to be void.

1. Plaintiffs repeat and incorporate the previous counts.

2. Ordinance 2700 constitutes arbitrary, unreasonable and capricious action by City Council. The ordinance is the result of an ultra vires conduct by City Council. In addition, and as aforesaid, the City had no jurisdiction to entertain the application for additional tax abatement because Asbury Partners was delinquent in its tax payments.

Wherefore, plaintiffs demand judgment declaring Ordinance 2700 invalid.

1. Plaintiffs repeat and incorporate the previous counts.

2. Given the gross violations of the laws cited in this complaint, the defendants should be held accountable to pay plaintiffs’ legal fees and costs.

Wherefore, plaintiffs demand judgment against defendants jointly and severally for attorney fees and costs.

Date: 8.30.04 _______________________

Jules L. Rossi

I certify that the matter in controversy is not the subject of any other action pending in any court or pending arbitration proceeding and no such action or arbitration proceeding is contemplated. However, Patrick Schiavino and Patrick Fasano are parties to a law suit against these defendants, but the subject matter is different. I am not aware of any other party who should be joined in this action.

Date: 8.30.04 _____________________

Jules L. Rossi

Jules L. Rossi is designated as trial counsel for plaintiffs pursuant to R. 4:5-(c).

Date: 8.30.04 _____________________

Jules L. Rossi