Stuart Lieberman Speaks about Preserving Graydon Pool in Ridgewood, New Jersey, October 26, 2009

Environmental attorney

Stuart J. Lieberman wows

the crowd

Photo courtesy of Ridgewood

Patch

Remarks by Stuart J. Lieberman of Lieberman & Blecher to members of ThePreserve Graydon Coalition, Old Paramus Reformed Church, Ridgewood, onMonday evening, October 26, 2009

I’m what they call an objector attorney. Werepresent groups all over New Jersey who arefighting to protect their communities. When I goto meetings and meet people who have thesame interests as my clients, I don’t often seethis many people. Usually people are homewatching TV. I applaud all of you for being in-terested in your community and for cominghere and for participating, and for making surethat these important petitions are signed, andfor contributing in every way, including finan-cially, to this important cause. I’ve been an attorney since 1986. First I repre-sented the Department of Environmental Pro-tection as Deputy Attorney General. I’ve beenin private practice since 1990. Our firm, Lieber-man and Blecher, in Princeton, started in 2000.Much of my practice is devoted to “green causes.” Many of my clients are envi-ronmental groups or environmental activists. I’ve done work for the Sierra Cluband local environmental groups. I’m general counsel to the Passaic River Coali-tion. We do litigation and land use work. We appear before planning boards andmunicipal bodies on a variety of issues. Some of our cases have been famous. One of our recent successes was whenwe represented the Raleigh Avenue Beach Organization in Lower Township, NewJersey. They lived in an area that didn’t have its own beach. There was nobeach access except through a private beach, which for years had been free.Then the owner of the beach decided that he had a captive audience and couldcharge a lot. It got to the point where he was charging about $800 a year touse the beach in contrast to about $30 or $40 for a normal beach tag from amunicipality. When the fee was $200 a year, nobody thought about hiring alawyer. When it was $400 a year, nobody thought about it. When it reached$800, people started getting upset. They put their resources together and theyhired the best lawyer they could find. Anyway, they hired me. The first day that I met with that group, I said to them, “We’re going to go tothe Supreme Court.” I never say that because it’s very hard to get to the NewJersey Supreme Court. But I saw this as a case that would because it dealt withan extension of the Public Trust Doctrine. Our beaches are for the purpose ofeverybody to enjoy. They’re a natural resource. And the question was: couldsomeone charge so much that it was effectively precluding a segment of thecommunity from using it? Sure enough, we brought the case to litigation. The

Remarks by Stuart Lieberman of Lieberman & Blecher to members of The... http://www.preservegraydon.org/lieberman-speech-preserve-graydon-10...

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lower court moved against us, but the appellate court reversed that decisionand ordered an injunction in one day. I’ve never seen that in my life. In fact, Isaw the judge who did it at a function I attended later; he was retired at thatpoint. I said, “Judge King, I’ve never seen an order in one day. Why did you doit?” He said, “Why wait?” He was so excited. The owner of the beach club then sought reversal by the New Jersey SupremeCourt. The Supreme Court doesn’t have to take cases. They decide which onesthey’re going to take and they did take this one. We went to the Supreme Court and we won. The Raleigh Avenue Beach Associ-ation case was on the front page of the Star-Ledger. I’ll never forget it and it’sframed in my office. It stands for the proposition that the Public Trust Doctrineapplies not only to public beaches, as it has since the 1970s, but also to private-ly owned beaches in New Jersey. Important cases like that keep me going. Theykeep the practice exciting, and it’s the kind of work that we like to do. We liketo do work that counts. When people who do land use, who get approvals for projects, gets malls built,get housing developments built, driving their kids down the turnpike, they say,“I got the permits for that and I got the permits for that.” When I drive mydaughter and son down the turnpike, I say, “That was going to be something,but I stopped that; that was going to be something and I stopped that. Andthat beautiful park over there was going to be something, but we stoppedthat.” You make more money when you build things than when you stop things,but I think it’s a nicer life to do it this way. So we’re very happy. [Applause] Now, let me tell you why what you’re doing is so important. I grew up in NewMilford and I know that Bergen County people have a fierce sense of self-deter-mination, so I don’t think I really have to explain this, but things matter. It’seasy to say, “What the heck am I doing? So what? If they pave it, if they takethis three-acre swimming site—” I mean, think of it: it’s almost three acres—canyou imagine?—“of a natural spring-fed pool, and if I turn that into three con-crete pools, all right, so it’s not the same, but that’s progress. We move on.” But things do matter. You are right. You know things matter and that’s whyyou’re here. And it’s those little things, those flavors, those tastes, those smells,those aromas, that make life interesting and that form a community in their ag-gregate. Graydon Pool is an historic resource. This pool, as you know, is 80years old in a 100-year-old park. It has served this area well for many years. Itis well known. It should be on—and we need to get it on—the New Jersey list ofhistoric places. It should be on the federal list of historic places, because it war-rants that kind of protection. And we’re going to talk about doing that. And youshould know that when sites are on the New Jersey Register or if they are eligi-ble for inclusion on the Federal Register, they are entitled to certain protectionsand safeguards. When permits are required, such as wetlands permits, a mitigation plan is re-quired. One of the first things they ask is, “Is this necessary? Do we really haveto embark upon this craziness?” We can’t ask that question enough in this case.So this is an historic resource and this really does matter. I’d like to talk to you about some of the environmental issues that I find inter-esting about this project.


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FloodingNumber one is the flooding issue. There has been concreting and an increase inimpervious surface in that area already. As an environmental lawyer, I knowthat the aggregate effect of paving, with more paving, more paving, over timeenhances flooding. Now, we already know that there is a water problem in the vicinity of the pool.Those problems have a sneaky way of becoming exacerbated when you de-crease the amount of surface through which water can percolate into theground. You see, nature has a storm water management system in place. Wedon’t have to do anything to it. When we have undisturbed soils, water perco-lates into the soil and recharges the ground water. Ultimately, we drink thatgroundwater. As a matter of fact, 20 years ago I represented Ridgewood in alawsuit against three oil companies on Route 17 that were polluting your drink-ing water. Water that goes into the aquifer is water that Ridgewood and otherlocal municipalities use for drinking. That water gets there by percolatingthrough the ground. It’s cleansed as it goes through the various strata of theearth and it becomes clean drinking water. That’s also how to prevent flooding. When we do that suburban thing, when wepave and pave and pave, we get flooding. Bergen County in general has a largeflooding problem because when Bergen County was built out as a place for peo-ple that work in New York to go and live 50 years ago, there was no unders-tanding of these issues. Uncontrolled development increased the floodingproblems that we have in many communities. There’s a flooding problem by thispool. You don’t need to exacerbate it by paving. So you should be concernedabout the flooding issues. Let me tell you something from my experience: flooding issues will always bepooh-poohed by the government. If the government is in favor of concretingthis, or whatever the government is in favor of, when they’re faced with legiti-mate flooding potential, they always pooh-pooh it. Then what happens, al-ways—100% of the time—is that the development goes into place and fiveyears later, we find that after a significant rainfall, there’s much more floodingthan there was five years before the development. And guess what? There’snothing in the world anybody can do about it. You can’t sue anybody becausethe government is immune from suit. There’s a law called the Tort Claims Act which precludes you, really, for all in-tents and purposes—although I deny it and I try to sue the government overit—but it effectively precludes you from suing the local government for floodingyou out by engaging in poor planning. So it’s the kind of thing where you’ll betold, “Don’t worry about it, don’t worry about it, don’t worry about it.” They willdo it, it will flood, and then they will say, “You know, there’s nothing we can do,but we agree with you, this is terrible. It happens. When it rains, it floods.”Well, it doesn’t happen. It happens when you engage in poor planning. This isan example of poor planning. Don’t let them pooh-pooh you when you say it.Don’t let them make false assurances. Don’t let them tell you that they’re goingto make the drainage problem better after the development than it was beforethe development, which is another thing they always say. Always. I’ve never been before a Planning Board or Council meeting where they didn’tsay—always—that the flooding that exists will be better, that there will be lessof it and there will be more control after development than before development,and “I have a bridge to sell you” if you haven’t already bought it once or twice.


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It’s a load of nonsense. I’m here to tell you that. Don’t forget that. When youare there before the Council, don’t forget that! Historic preservationI also want to talk to you about the historic preservation aspects of this. We al-ready talked about the fact that if it’s eligible for inclusion on the state or natio-nal register, this special mitigation has to happen. But historic preservation is, inand of itself, an environmental kind of concept that, in this country, we don’tgive enough deference to. For anyone who has been fortunate enough to travelthrough Europe—if you’ve been in Italy, France or London, where everything isa thousand years old—of course our country is younger, but we just don’t do avery good job of respecting some of our treasures. I don’t know why that is,but somewhere it got into the mindset of planners that you should clean theslate and start over again, and that invariably that will yield a better result thanpreservation. Well, preservation is important and it is, in and of itself, an impor-tant goal. And I think you know that. This is a wonderful site. There are many,many memories of children who grew up here that are associated with this. I’ve heard that people from all over the country have sent you emails whichconcurred with that in their hearts and in their minds. They, too, understoodhow important this was. This is an important resource. Keep that in mind anddon’t let the Council pooh-pooh that. Fight for it. You have to fight because it’sso much easier to bulldoze it over than to fight and stand for something that isimportant, and this is worth fighting for because it means something and it’simportant. Health issuesI also want to talk to you about another environmental issue, and that is thehealth issues that have been bandied about concerning this natural resource,which is spring fed. I have heard that people complain that this pond isn’t ascrystal clear as it would be if it were a concrete pool with a filter. And that’strue. The pond isn’t as clear as it would be if it were a pool with a filter—and it’snot supposed to be. Ponds are natural. They’re organic. They have a liveecosystem associated with them. There’s nothing wrong with it. That’s whatswimming areas are when they are natural. I will tell you something else. Oceans aren’t pristine in terms of clarity, either.Go figure! So maybe what we should do is attach a filter to the ocean. Take thesalt out. Let’s clean that! Get rid of those darned fish! Maybe everybody fromRidgewood can be bused over there and swim there as well. Of course, it isn’tas clear as it would be if it were a concrete pool with a filter. Are we to be sur-prised by that conclusion? However—and this is what you need to keep in mind,as a kid who sold pool chemicals before I went to law school—it is clean. That’sa clean pool. The test results—time and time and time and time again—showthat the bacterial levels are certainly acceptable. As a matter of fact, they areacceptable not only for natural water bodies, but for concrete pool bodies. It isclean. Don’t believe this rubbish that it isn’t clean. Clarity is one component ofwater quality and bacterial levels are another. That’s a sanitizing issue. Twocompletely different things. Murkiness is natural. It does not mean that the wa-ter isn’t clean. It is clean. It exceeds state standards. I don’t want anybody from the Council—and I know they wouldn’t do this—no-body from the Council would ever say this— so I hope in advance that they’llaccept my apology for even suggesting it—that this water is dirty or that it’sunhealthy. It isn’t. It is FINE. Murkiness does not equate to the issue of sanita-tion. It is fine. And you wouldn’t want your pond to look like a filtered swimming


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pool. They’re different things. They’re different animals. I think we need to talkabout that. And YOU, I hope, will talk about it when you go to a Council meet-ing. And you need to shout those people down the way they shout you down,and you need to make sure that they are listening to facts and that only factsare part of this colloquy and no emotions that are unsupported by facts. There’sbeen a lot of that. [Applause] ManagementThere’s another environmentally related issue that I think we need to talkabout, and it’s a sensitive issue, but we’re all friends, and it concerns manage-ment of the pool. It’s important that people not allow the pool to be misman-aged—to allow for some indicia of unkemptness to creep in and then blame thaton inherent features of the pool, because that’s not true. So, for example, if welook at reports at this pool from 2007 and we see that it wasn’t chlorinatedenough or chemically treated within the guidelines suggested by the DEP, thenwe shouldn’t wonder why maybe some bacterial levels exceeded what was ac-ceptable in 2007. Don’t allow them to kill this pool by neglecting it and thencome to you and say, “It’s dead; what are we to do?” What they are to do ismanage the pool. Now, I’m sure most of you have seen a letter from the DEP where the depart-ment stated quite clearly that this pool can be run successfully through propermaintenance. So that is what is necessary and my understanding is that thereare plenty of examples of a lack of maintenance in the way that we would alllike to see associated with this pool. My understanding is, for example, even inthe simple thing like pool passes being checked, that they aren’t uniformlychecked, and that when people need daily passes, often there aren’t peoplethere to greet them and people aren’t paying attention. But then they complainthere isn’t enough revenue coming in. Well, maybe if you do your job seriouslyand ensure that everybody who comes in has either a pass or pays for a passor a guest pass, then you won’t have that kind of problem. Financial issuesI’d like to talk to you about another related issue, and we just touched on it fora second, and that concerns the financial ability of the pool to continue. My un-derstanding is that for about the last two years, revenues of the pool have gonedown. And my understanding is that for about the last two years, revenues injust about anything that charges anything for anything in this country havegone down. We have been in a recession. Now, I guess Ridgewood hasn’t beenin a recession, but what I suggest you do is get copies of The New York Timesand bring it to Council members at the next meeting so they can find out thatwe have been in a recession. Many people who live in Ridgewood have been affected by the recession. Be-cause there’s a train in the middle of Ridgewood, and do you still have thegreen taxicabs in Ridgewood, or no? Do they still have those? Those little greencabs pick everybody up from the train station and take them from where theywork in New York and take them home. Many people in Ridgewood work in NewYork City and have been impacted more so than many other places in NewJersey by the recession. There are a lot of Wall Street jobs in this community. When people lose theirjobs or when their income has gone down, or when one person in a two-incomefamily loses a job, what might be deemed as discretionary spending gets cut.


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So, obviously, the amount of money that the pool and just about everythingelse in Ridgewood and in New Jersey and the United States, and, by the way, inthe whole world, has seen has gone down. Let’s not play the blame game andsay, “Revenue is down; we have to kill this pool,” because the fact of the matteris that revenue is down because we are in a global recession. Revenue might al-so be down because the Pool Project (and does that not sound like some kind of1970s band, by the way?)—I mean, let’s face it, you’ve been hearing what peo-ple have been saying. You’ve been hearing what has been leaked to the media,and there have been all kinds of misrepresentations about this pool. After awhile, when people start hearing the same old, same old, same old, some peo-ple believe it. So you’ve got a recession, and then you’ve got a bunch of peoplewho are motivated to bring about a certain result and may be saying certainthings to bring about what might be their desired result. Certain other stories are floating around that I want to touch upon before wepart ways tonight. RFPNumber one is the story that this RFP, this Request for Proposals, is “just to seewhat’s out there,” even though it may contain an illustration of three pools thatare concrete inside a three-acre area. If one were inclined to look at things in askeptical way, one might wonder whether really the purpose of the RFP is tojust see what’s out there, or is it really to have people who are applying for theRFP come back with something that is being strongly suggested in the RFP. Ithink we need to keep this in a level playing area—or level pool—and it could bethat what we’re seeing is fair play. I suggest that it might very well not be fairplay. Children’s preferencesThen there are suggestions that “My kids won’t go to the pool any more andwhat are we doing with this pool, and the only thing we can do now is concreteit over because that’s the only way that this thing can be worked out.” There islittle empirical data that is out there in this very sparse record that has beencreated to suggest that the demographics of who’s using the pool and who’s notusing the pool are in any way related to whether it now has a concrete bottomor whether it has that beautiful sandy bottom or whether it has the sand. Many,many children, many kids, many teenagers go to lakes. They go to oceans.They go to the beach. They go to all kinds of things. I don’t know. Maybe if youclean the bathroom, they’ll come. Just an idea. We don’t want to start drawing what might be unreasonable conclusions andfloating them about without empirical evidence. And I can suggest to you thatthere’s little likelihood that any such data will ever be produced if you ask for it. Determine the facts

My understanding is that there was an exchange recently where an individualwho is closely associated with this organization complained that half of what wascontained in the Ridgewood Pool Project’s Final Report was fiction or exaggera-tion. There was a response by an elected official that that is a matter of opinion.And let me suggest to you that while right now I don’t have my finger on theexact percentage that is fiction or exaggeration, whether something is fiction orexaggeration, contrasted with fact, is never a matter of opinion. It either is or itisn’t. And I think rather than saying “that’s a matter of opinion,” and thinkingthat that is a valid way of addressing a legitimate concern that there might notbe sufficient factual information in a public report that is being used, at least inpart, as a basis for going forward with an RFP, a more informed response would


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have been, “Well, why don’t we go over what you believe isn’t truthful or hon-est, or what you believe is an exaggeration, and why don’t we spend some timetrying to compare notes and harmonizing these different points of view so thatwe can all determine together the facts, and then decide where we should go, ifanywhere at all?” You can fight City HallLet me close with this suggestion. We all grew up hearing that you can’t fightCity Hall. I want to tell you that when a community is united and when peoplehave the spirit, as demonstrated by people sitting here today and others thatcouldn’t come today, and when people understand that something meanssomething and something is worth fighting for, and some things really matter,that you can fight City Hall. I make a career of fighting City Hall and, while Icertainly am not always successful, we have a good track record. The fact of thematter is that I am successful when my clients care, and when my clients aremotivated, and when my clients work hard and have a monomania that this issomething that means something. I tend not to do that well when a client says,“Look, I’m a rich person. Here’s the money. Do whatever it takes and give me acall or send me an email in a year or two and let me know how it works out.” I’lltake the case, but I tend not to be that successful. This is the environ-ment—this is ripe for success because people matter. You’re here; you’re excit-ed; you understand. In conclusion, you can fight City Hall, I assure you. Keep your eye on the ball.Remember what matters. Don’t be intimidated. Don’t be shouted down by any-body. Look everyone straight in the eye: eye-to-eye contact. Ensure them thatyou matter, that you are what this is all about—governing is about people—andthat your voices need to be heard and that historic resources that are importantand mean something to people cannot be allowed to simply vanish because it’sexpedient to do so rather than looking harder for a decision that makes moresense. Thank you very much. © 2009 Stuart J. Lieberman

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News & Politics

Stuart Lieberman Speaks about Preserving Graydon Pool in Ridgewood, New Jersey, October 26, 2009