Diamond Chip Sues Sparta Planning Board - Again

SPARTA, NJ – The latest chapter in the Diamond Chip multimodal facility application is another lawsuit filed by DCR. Once again they are claiming two of the members of the newly constituted planning board are compromised and should be removed.

They further allege planning board attorney Tom Collins’ recent advice contradicts the original advice he gave to the planning board members when the hearings first began in 2022.

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DCR is also asking for the judge to make a ruling on their application or appoint a special master to make the decision that is in the hands of Sparta volunteer residents.

In their 41-page complaint filed in Sussex County Superior  Court on June 29, 2024 DCR calls the resignation of planning board members Ryan Caruso and Nick Pompelio “suspicious” saying it was a “persistent” effort to “obfuscate and delay” their application by objector Anand Dash and Mayor Neill Clark.

Dash said, “The reconstitution of a planning board to hear the DCR application was necessary because of DCR’s litigation over the perceived conflict of planning board members who were part of the Sparta Responsible Development Facebook page.  Caruso had submitted his letter of resignation prior to Minkowitz’s ruling to require a reconstituted planning board.”

The two seats left open by the resignations were filled by the only two applicants, Joan Furman and Brian Zimmerman.  Neither of the applicants were associated with Sparta Responsible Development.

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In their complaint, DCR points to a post made by Clark on the Sparta Responsible Development asking for anyone not associated with the page or group to consider applying to preside over the DCR application.

In addition to the need to reconstitute the planning board, the court required the DCR hearing resume within 30 days.  There were only two applicants for the open seats and they were approved in time to meet that deadline.

“After cunningly repacking the planning board with SRD sympathizers – in clear contravention of Judge Minkowitz March 28, 2024 order – the Planning Board expectedly charted a resumed course of thwarting DCR’s application,” the complaint said.

Prior to the resumption of the DCR hearing in a letter and again at the May 1 hearing DCR’s attorney Steven Gauin objected to Furman and Zimmermann, calling their appointment “the pervasive taint of Sparta Responsible Development” and Furman’s and Zimmerman’s appointments having been done “surreptitiously.”

The complaint states as proof of a conspiracy to block a fair hearing, Collins said “he was ‘satisfied’ that recusal was not necessary.”

Gauin and Garcia seem to contradict themselves when in one portion of the complaint the quote Minkowitz “holding that membership in SRD was a disqualifying  interest,” but then argue the fact that former Planning Board Chairman Andrew Reina was also a “member” of Sparta Responsible Development while he presided over their initial hearings in 2022, is not an issue because SRD “never sought his disqualification or sought to void the prior record.”

Starting Over

Gauin and Adam Garcia next claim the planning board’s vote to have testimony start from the beginning, because three of the five members are new to the dais, as further proof  of the conspiracy against them. Not only were the members of the board new, the application itself has undergone several iterations to date.

While they claim that action to start anew was “without advanced notice or explanation,” DCRs letter to the planning board in advance of the May 1 hearing laid out their wish list of how they wanted things to go, including starting the testimony from where they left off.

That request along with their preference for who should serve as planning board leadership in their hearings, was denied.  Both Gauin and Steven Warner representing objector Anand Dash were given the opportunity to plead their case to the planning board members.  They voted 5-0 to start from the beginning.

Gauin and Garcia even attack on Warner, the objector attorney, saying his opening statemen t was “rambling.”

Their ad hominen attacks continue, calling Dash’s assertion this statement presents a double standard, “laughable” that “could be rebutted by a first year law student.”

“The latest lawsuit is another attempt by Diamond Chip to subvert the due process of law and run to the court for relief without warrant. Instead of allowing the facts and law to decide the course of this application, they have chosen to protract this matter through baseless litigation. We are confident, however, that when the facts and the law are ultimately adjudicated, the courts will determine that the application is inconsistent with the Township Zoning ordinances and must be denied,” Dash said.

The planning board members voted 5-0 to start from the beginning.

DCR’s next issue was that the planning board would hold a “plenary, ‘jurisdictional hearing’” to determine whether the application was for a mega warehouse or a trucking terminal.  Again both attorneys were given the opportunity to plead their case and the planning board members voted 4-1 to have the “use” hearing.

Quoting from the past

In their complaint, Gauin and Garcia said the board members were “given clearly incorrect legal advice” by Collins.  In their suit, they quote Collins from initial hearings when he told then planning board members, in part, “Diamond Chip, the use, warehouse, is listed as a permitted use. There is no doubt that that’s what the ordinance says. It’s black and white. Its black-letter law. It is not up to me to recommend that to you ... That’s what the ordinance says ... I think that the [Planning Board] should just proceed with the application. The parties can go ahead and disagree all they want about what their positions are and, to the extent that relevant information is provided to this [Planning] Board about why this application does not conform to the ordinances, that is totally relevant in a proceeding like this on a site plan application.”

Collins made these statement sat the April 6, 2022 hearing when Dash and Clark requested a use hearing be held at the zoning board.

Sparta Planning Board announced they were suspending  the DCR application hearing, pending an outcome from DCR’s latest lawsuit.

History of DCR and Sparta Planning Board Professional:

Sparta Township professionals, including Collins and then engineer Stan Puszcz worked with DCR to make the changes that led to Ordinance 21-01, confirmed by DCR’s Jim Ford to TAPinto Sparta and Gauin in the April 6, 2022 hearing.

Collins, Puszcz, Planner Katherine Sarmad, Planning Board Engineer David Simmons and Zoning Board attorney Glenn Keintz began working with DCR since May 2021 to review their plans .  Correspondence and emails obtained by TAPinto Sparta through OPRA requests show they met many times with the representatives from DCR as they were developing their application.

Then township council and planning board members have stated several times at public meetings, they were not aware of the work being done between the township professionals and DCR.

The first interaction between Sparta Township professionals and DCR is October 27, 2020 when Simmons met with DCR project engineer Tony Diggan at 33 Demarest Road according to documents TAPinto Sparta obtained via OPRA.

Professionals' Pre-application Payout

Vouchers and bills obtained in an OPRA request, between the township and the professionals, Collins, Puszcz, Samard and Simmons for work done on the Diamond Chip Realty project show:

• Collins – May 2021 - $1,268.75 for 7.5 hours; review of email, concept plan, file and plan, drafting email, telephone conferences with Puszcz, meeting with Puszcz, Clark, Simmons and applicants’ representatives
• Simmons – June 2021 - $357 for 2.57 hours; check proposed site, Zoom meeting of the Technical Review Committee with township officials, application and plan review
• Collins – June 2021 - $306.25 for 1.75 hours; review email regarding prior traffic studies, draft email, work on Water Quality Management Plan Amendment
• CP Engineers – June 2021 - $1325 for 8.5 hours; pre-application meeting and review, attend pre-application meeting
• Collins – July 2021 - $568.75 for 3.25 hours; telephone with Puszcz regarding WQMP Amendment request, review email, draft email, “telephone conference with Puszcz regarding sewer v septic and WQMP Amendment request and next steps,” email to Puszcz, Clark, Simmons,
• CP Engineers – July 2021 for $1,510 for 9.5 hours; traffic study, prep and attend video meeting regarding traffic and possible submission requirements.
• Collins – August 2021 - $918.75 for 5.25 hours; phone call with Puszcz, email and review revised concept plan, meeting for technical review
• CP Engineers – August 2021  - $1,112.5 for 7 hours; prep and pre-application Zoom meeting with applicant
• Sarmad – September 2021 - $300;  TRC prep and meeting
• CP Engineers – September 2021 - $1,056.25 for 6.5 hours; review utilities
• Collins – November 2021 - $350 – 2 hours; phone call with Puszcz, phone call with client, review voice mail from Gouin, review of file
• CP Engineers – November 2021 - $1,280 for 8 hours

Collins was paid a total of $3,412.5 by DCR escrow funds, according to the bills from 2021.

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