Parties Could Be Back In Court Over Wind Turbine
Rob Burke has been trying to install a wind turbine to generate power for his business, Wayne Auto Spa, since 2007. The matter has dragged on in litigation for years.
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Representatives for Robert Burke and the township could be back in court over the matter of Burke wanting to install a wind turbine at his place of business.
Robert Fettweis, the attorney representing Burke, has asked the presiding judge in the case that the matter be brought back to court because the parties have failed to reach a settlement agreement regarding Burke placing a wind turbine at his business, Wayne Auto Spa.
“At this point, the plaintiffs have despaired of reaching an agreement with parties that give every appearance of being uninterested in participating in the settlement process,” Fettweis stated in a letter dated May 9 to Federal District Court Judge Joseph Dickson. “Too much time has elapsed. Under the circumstances, we respectfully but reluctantly request that the case be restored to the active calendar for further proceedings.”
The clerk’s office in the U.S. Courthouse in Newark said the case has not been placed on Dickson’s calendar.
Burke applied to construct a turbine with 6-foot long blades on it in 2007. The Planning Board denied Burke’s application in October 2008 citing a lack of expert testimony and concerns about safety and noise.
The matter has dragged on in court for years.
State Superior Court Judge Donald Volkert overturned the denial in July 2010. In his decision, Volkert said that the board improperly denied the application due to the concerns. The Planning Board approved the application in December as part of the agreement.
The case has since been moved to federal court.
According to the letter, representatives for Burke and the council met with Dickson on April 18 to try to arrive at a settlement agreement. Representatives for the council presented a draft settlement agreement at that meeting.
The parties informally agreed that Burke would respond to the agreement by April 23 and that representatives for the council would reply to that response “in three or four days,” according to the letter.
The letter states that because Burke was summoned to jury duty on April 23 and Fettweis had to undergo pre-surgery testing, his response to the agreement would be delayed until the next day. According to Fettweis' letter, the town's response was due between April 27 and 30.
That timetable, it was expected, would enable a final agreement to be presented to the council in closed session on May 2 and for final approval on May 16.
Fettweis said in the letter that he has not received any contact from Thomas Scrivo or Ryan Mulvaney, two of the lawyers representing the town council, regarding the case. The letter was sent to them and to town counsel Matthew Giacobbe.
Township Clerk Paul Margiotta said that no closed session was held on May 2 and that the matter was not discussed. Margiotta also said that there is nothing on the May 16 meeting agenda regarding the case.
Burke and Fettweis declined to comment. Giacobbe did not return messages seeking comment.
Rob Burke
6:46 pm on Wednesday, May 16, 2012
Since I am not allowed to comment on the lawsuit, all I can say for now is that the new garden is awesome, and the hens have officially settled in. I have already had a couple of salads from the garden, just lettuce and basil, but hey, I picked it myself. No eggs yet, they tell me they will be rolling in very soon. People are already asking about how to make food pantry donations. A mother daughter duo came by after we closed Sunday just to sit, relax, and enjoy each others company beside the garden and the hens. Last night, I had to put them in the coop by myself. Took about 15 minutes chasing them around. I have already brought several moms with children inside to check out the girls and the plants. At least this is fun! I have invited several council members to come check it out and take part. Nothing on that end yet.
Al Scala
7:13 pm on Wednesday, May 16, 2012
Rob....I sincerely hope you prevail in this matter! I hope this insanity ends soon as it is costing us taxpayers quite a bit of money in legal fees.
Rob Burke
7:20 pm on Wednesday, May 16, 2012
Thanks, Al. I really appreciate all the support. Stop by next week - you will be amazed how much things changed in such a brief time in the garden. And I am finally able to easily handle the hens. They are so gentle and happy for the attention.
Cathy Kazan
7:55 pm on Wednesday, May 16, 2012
Unbelievable and outrageous. This is just a complete waste of money. No reason to wonder why we are having trouble attracting businesses to Wayne.
Rob Burke
7:58 pm on Wednesday, May 16, 2012
Hey Cathy! I am around all day tomorrow if you want to drop by and meet the girls of Wayne Auto Spa! Turbne Tillie is my favorite...
Al Scala
10:26 pm on Wednesday, May 16, 2012
Rob.....Turbine Tillie is a great name. Just an idea.....why don't you let the kids in our schools, (elementary and middle schools), submit some names for the hens. Personally, I like Hamburg Henny!
Rob Burke
5:30 am on Thursday, May 17, 2012
Al, I like your suggestion a lot. I am also planning on getting kids involved in other ways. PCCC is bringing an environmental studies class for a tour/lecture in a couple weeks. And I'd love to have some kids make us a scarecrow for the garden, just for starters.
Naming the hens is also a great idea. Someone wanted me to name them after specific people. While thats certainly an entertaining idea, I like these hens. They deserve good names that reflect their stature. I don't want them just to be the punch line of a joke. Though I can imagine a lot of creative answers to 'Why did the chicken cross the road?'
Turbine Tillie is easy to identify. She's the only one who is kind of two toned. Skystream Sallie (after a turbine mfr.) is another name I like. Windy Wendy is probably a no-go!
Nose Wayne
10:08 pm on Wednesday, May 16, 2012
Lets see, TWO LAWYERS REPRESENTING THE TOWN COUNCIL PLUS OUR OWN TOWN CLOWN MATTHEW GIACOBBE.How much more money is this town going to throw away with this case.GO GREEN,GO GREEN GO GREEN!!!!!! And i don't mean green money!
Rob Burke
8:51 am on Thursday, May 17, 2012
Nose -- please consider signing your name to your posts. Your comments won't carry the weight they could if you don't sign your name. I know its asking a lot, but think about it.
Al Scala
10:15 pm on Wednesday, May 16, 2012
I sincerely believe that Rob Burke will eventually prevail in this matter, hopefully sooner than later. I also predict that out Town Council in their infinite wisdom will cost the taxpayers of Wayne about $300,000 IN LEGAL FEES, fighting this poltically driven matter.
Nose Wayne
10:28 pm on Wednesday, May 16, 2012
Al, SHOULD come out of their PAYCHECK!!! But this is like you say POLITICALLY DRIVEN MATTER. $300,000,CAN'T WAIT TO SEE THE OPEN PUBLIC RECORDS ON THAT ONE.
Rob Burke
5:22 am on Thursday, May 17, 2012
What you don't see here, at least not yet, are anonymous shills attacking me in reply to this story or in respect of my Victory Garden. Scondo is glaringly absent despite much activity on other boards. Rex Miatke, aka "Simple" is also similarly quiet despite activity elsewhere. The dude is probably looking for the dude's car, I guess. No, the strategy of the nameless seems to be to disengage rather than draw attention.
Scondo
10:04 am on Thursday, May 17, 2012
Glaringly absent? au contraire mon ami.
Rob Burke
10:55 am on Thursday, May 17, 2012
( - :
leanbean
9:11 pm on Thursday, May 17, 2012
Rob, I feel left out.LOL I support your turbine. The windmill I was against. After the blade fell off the one in south jersey. As for your Hens and Victory Garden? Give them hell. They'll lay more eggs. I don't know if you remember? But when you first brought up the subject of putting the coup in. And I told you to get Rhode Island Reds. Your comment was. " I'll see what the experts say to get " I see you got Rhode Island Reds up there.LOL. Hope you get a lot of eggs and a lot of veggies. If the hens don't lay? You can always bring Billy boy back in the picture. He was good at laying eggs.lol
Rob Burke
9:21 pm on Thursday, May 17, 2012
They are actually rhode island red - white rock mix. And they are funny little creatures. The smallish lighter colored one that I named Turbine Tillie has consistently been the toughest to get in the coop every night. She seems smarter than the rest, and fast!
Nose Wayne
7:22 am on Thursday, May 17, 2012
Bob,SHAME THIS TOWN is waisting good money on something that your doing to BETTER THE ENVIROMENT! Only GREEN this town seems to NOSE is MONEY!!!Solar power,saving water,Victory Garden,Hens that you will GIVE the eggs away.What's WRONG with this picture?
JB
7:26 am on Thursday, May 17, 2012
http://www.wind-watch.org/news/2011/10/07/scientist-says-wind-farms-bad-for-health/
Rob Burke
7:38 am on Thursday, May 17, 2012
Read the article. The so called scientist refused to answer many direct questions. Beyond that, this person was testifying about industrial scale ginormous machines, that have blades longer than the entire structure that THE PB HAS NOW APPROVED!!! Pres. George HW Bush has one adjacent to his Kennebunkport, Maine residence. The secret service have one mission -- keep him alive & protect him. They vetted the turbine and concluded it was safe. Identical and similar turbines adorn hundreds of schools across the country, INCLUDING IN NJ.
Your link is irrelevant to the turbine I seek.
Rob Burke
7:43 am on Thursday, May 17, 2012
PS -- Neither the Center for Disease Control nor the American Medical Association have identified any connection between turbines and any illness.
JB
7:57 am on Thursday, May 17, 2012
Phillips said that in his research, he has found that people who live up to 2 miles away from the turbines develop such things as sleep, stress and mood disorders once wind farms go up. Phillips said he didn’t know the exact percentage of residents within a mile or more of wind farms who suffer “substantial” health problems as the result of the turbines, but he said his best guess, based on research, was 5 percent.
Anyone who argues that wind turbines don’t have bad health effects are either ignoring the evidence or “trying to mislead,” Phillips said.
Victims of the health effects often move away and then see their health improve, he said.
Mr. Burke-Please let our neighborhood not suffer these unwanted problems. I pray the town of Wayne protects our residents' health in this matter.
Rob Burke
7:59 am on Thursday, May 17, 2012
Even if what you refer to were true, which it isn't, the devices you fear are 5 times the height and more than a thousand times the generating capacity. You are comparing apples to kumquats. And the apples you claim are tainted, are actually fresh, ripe, sweet and good to eat.
Rob Burke
8:05 am on Thursday, May 17, 2012
Note, too, that in the past couple of years the State of NJ has passed laws that (1) declare SMALL wind turbines (max 100 ft tall) "inherently beneficial" for land use purposes; and (2) make it illegal for municipalities to unreasonably restrict small wind turbines. I was involved in the adoption of these laws, which were designed to make it very easy to get approval to install these kind of technologies. The arguments you are making were made in Committee and on the floor of both houses. And they were rejected.
Nose Wayne
8:03 am on Thursday, May 17, 2012
Rob, I think what JB is talking about is like the wind turbines you see when you enter ATLANTIC CITY. Rob, that one is BIGGER than your building! Yours that you want to install i think is 6 FEET? Not 250 Feet.
Rob Burke
8:08 am on Thursday, May 17, 2012
I'm not sure how tall the AC turbines stand -- I forgot. But those are utility grade, industrial sized machines. Wayne zoning limits the height in my zone to 50 feet. My flagpole presently stands at 63 feet.
Wayne's World
8:08 am on Thursday, May 17, 2012
Rob, I am curious, what is the basis for being in Federal court? Local issues are rarely removed to Federal court, so I was just wondering.
Rob Burke
8:51 am on Thursday, May 17, 2012
WW -- please consider signing your name to your posts. Your comments won't carry the weight they could if you don't sign your name. I know its asking a lot, but think about it.
Rob Burke
8:09 am on Thursday, May 17, 2012
Sorry, I can't comment on the litigation proceedings.
Wayne's World
11:38 am on Thursday, May 17, 2012
Thanks for your response. I appreciate your effort to get everyone to sign their name, but I have reasons why I don't. I hope that my viewpoints are judged on their merits and I don't know anyone in town nor do I have any agenda with respect to elected officials, so that shouldn't detract from what I say. I just like the unfettered freedom to express my viewpoints in anonymity. For those of us who take their comments seriously (most of the time), anonymity shouldn't make any difference. Our viewpoints should be considered by the powers that be because we are voters, concerned citizens and neighbors, and we might just be in a position to do some things about the things we write about.
As for the litigation question, I didn't mean to intrude on the substance of the lawsuit, even though you have made everyone well-aware of the situation. I was just curious, procedurally, how a case went from state court to federal. There has to either be a party subject to federal jurisdiction (diversity of citizenship) or a federal question involved. Since you and Wayne Twp don't have diversity, I was wondering what federal question was at issue?
Rob Burke
11:44 am on Thursday, May 17, 2012
No worries. You know my views on anonymity, so I won't repeat them again here. Insofar as why we are in federal court -- you sound like you have litigation experience, from your post. You can get an answer from pulling the complaint, looking in the PACER system or reading some articles in The Record from a while back. I'm just not comfortable posting answers to questions about the inner workings of the lawsuit right now. Sorry to send you an a research mission...
JB
8:15 am on Thursday, May 17, 2012
There are plenty of instances that the government approves matters that are not always good for ones well being. Examples are GMO in our foods, Generally Recognized As Safe foods which turn out not to be safe, approved drugs which get yanked after people experience severe effecs or death. It seems to me that you are enjoying this game, Mr Burke, while wasting the taxpayers money and maybe our future health.
Rob Burke
8:17 am on Thursday, May 17, 2012
You presume my state of mind while posting anonymously. You have no idea what you are spewing. These last five years have been extremely difficult on me and my family. I have done nothing wrong and have been accused of doing nothing wrong. Check your facts.
Cosmo
8:26 am on Thursday, May 17, 2012
JB........Wayne has cell towers all over town and on school grounds. Do you really think town officials care about your health? WAKE UP!
There is more to this story. Mr. Burke has every right to fight for what he believes in. He has never lost. Town officials fight health and sustainability on our dime. Our tax dollars. Every dollar they owe Mr. Burke should come out of their pockets.
Wayne residents should be outraged by the waste that this case has incurred. We should be learning from people like Mr. Burke not dragging him in courts.
Rob Burke
8:35 am on Thursday, May 17, 2012
Cosmo, thanks for your kind words. Note that Resident Urban Homesteading Expert Victor Alfieri is in Wayne Municipal Court this morning. He stands accused of violating an ordinance that prohibits the keeping of hens for "agricultural purposes." "Agricultural purposes" are defined as being for the sale to others. Victor doesn't sell any of the eggs from his three, 2 pound hens. There has never even been an allegation that he does so. Yet he is in court this morning. I won't read Victor's mind, but I can tell you that being hauled into court when you have done nothing wrong is stressful, to say the least. And when the subject is about something that goes to the core of your being, like this does for Victor -- well, I would be surprised if he hasn't lost sleep. I hope he gets the right result this morning. He has been accused of being a law breaker in an open Council meeting and he has broken no law at all.
Rob Burke
8:52 am on Thursday, May 17, 2012
Cosmo -- please consider signing your name to your posts. Your comments won't carry the weight they could if you don't sign your name. I know its asking a lot, but think about it.
Al Scala
9:28 am on Thursday, May 17, 2012
JB....This matter has got nothing to do with your health or mine. If you believe that, I have a bridge I'd like to sell you. THIS IS POLITICAL. By the way, it's costing us taxpayers hundreds of thousands of dollars to keep this matter in court. You and I are paying these fees along with all the other taxpayers in town. Do you know what lawyers call this kind of case? An annuity! Along with Rob Burke who I believe will prevail in this matter, the other winners are the attornies, at your expense and mine. Incidently, the type of windturbine Rob wants to install, will absolutely have no bearing on anyone's health. After all Rob Burke is going to be close to this thing practically every day. Do you think he would install it if it posed a health hazard?
Scondo
9:47 am on Thursday, May 17, 2012
While I think this matter should have been settled and moved and approved and the turbine should have been whirring away already, I have yet to see anything come out of the Town explaining why it is not resolved, and as is my want I cautiously must ask if the demands of the suitor are so outrageously steep as to preclude that rapprochement. Just as Mr. B is not able to speak to the specifics of the litigation, the town leaders would also be so precluded. We must not prejudge the positions of the town, although given the sorry state of the handling thus far, it is difficult to continue to give them even the modicum of credibility that I do now. Settle the thing boys, put the testosterone down and nobody gets hurt.
Rob Burke
10:12 am on Thursday, May 17, 2012
Well Scondo, thanks so much for taking the bait and joining the conversation. Let's ask you what you think a reasonable resolution would be? What do you think????
Al Scala
10:06 am on Thursday, May 17, 2012
Scondo....if I'm not mistaken, didn't the Judge who last heard arguments on this matter, call the Town frivolous in their actions? After all the Judge is impartial, or should be. Wake up and smell the coffee for God's sake. Stop protecting these people. These people are wasting out hard earned tax dollars, that I work very hard for! There is nothing wrong with this windturbine, It is positive in so many ways! Stop wasting tax dollars over a political matter. It's time they check their ego's and start doing what's prudent and right for the taxpayers. They are not deserving of even a modicum of credibility! Wake up!
Scondo
10:14 am on Thursday, May 17, 2012
Al, With all due respect I suspect that the settlement involves far more than "wind turbine approval" I just have a hard time contemplating that a body of governors counselled by considerable legal talent would walk lock step to the brink of a cliff and leap off just because of some (my opinion) personal issue they might have with the opposition. It defies logic, there must be something in the suitors demands that prevent conclusion, sorry but that is all I can fathom. They are duly elected officials and if it turns out that this was some stunt born of persnonal animus they are deserving of being de-elected.
Rob Burke
10:28 am on Thursday, May 17, 2012
How can you ask for due respect when, hiding behind the veil of anonymity, you presumptiously conclude what's going on behind the scenes? Pathetic. So, answer the simple question, which I now repeat: Scondo, what resolution would you think to be appropriate?????
Rob Burke
10:32 am on Thursday, May 17, 2012
PS -- go read a couple articles from The Record from last fall. I believe they covered Council meetings I spoke at and quoted me.
Rob Burke
10:50 am on Thursday, May 17, 2012
And I do agree, the lawyers representing the Town are the best in the business. No question about that.
Wayne's World
11:40 am on Thursday, May 17, 2012
Let's not get crazy, Scondo. Lawyers that represent townships and who are involved in municipal proceedings in general are not generally considered in the upper echelon of "legal talent." The big dogs are working on other things. Municipal law is the minor leagues. Part of the problem may be the relative amateurism of the lawyers. I have seen it many times in state court.
Al Scala
10:24 am on Thursday, May 17, 2012
Scondo...I have a better idea. Let's not de-elect them, let's deport them!
Scondo
10:39 am on Thursday, May 17, 2012
Rob, what is the demand ? You are the plaintiff, are you not ? I think you ought to get your approval and I think you ought to have your litigation expenses and a portion of your land use application expenses paid (those that were brought about by the towns recalcitrance).
As to my taking the bait, I suppose I did, but you are the best baiter there is, you are the master. :)
BTW, I do not conclude what is going on behind the scenes, I surmise , and I was clear on that point for I certainly have no specifics as to the demands made upon the town, so I have no way of knowing if they are reasonable.
Rob Burke
10:49 am on Thursday, May 17, 2012
Why would you surmise, then, that I'm making unreasonable demands? Have you ever heard me make an unreasonable demand in this dispute?
Rob Burke
11:06 am on Thursday, May 17, 2012
PS -- You should already know that I can't discuss any of the goings-on in the lawsuit right now, including any "demands" or "negotiations."
Scondo
10:41 am on Thursday, May 17, 2012
You should also get your delay damages, the difference in operating expenses that you incurred deducting that which you would have saved.
Rob Burke
11:04 am on Thursday, May 17, 2012
Well, Scondo, my opinion of your comments has changed for the better. I thought you were going to attack me some more, without reason or explanation.
Al Scala
10:58 am on Thursday, May 17, 2012
Scondo....those things are called damages! I would think Rob's attorney, should he prevail, and hopefully he will, has those things in the back of his mind! By the way Scondo,from some of your posts I've been reading from you over the last year or two,, you sound like an adjuster or someone with insurance experience! Would you like to comment?
Scondo
12:09 pm on Thursday, May 17, 2012
@Al Long time ago.
@Rob, where have I ever attacked you?
I don't recall ever attacking you , I just do that. I do debate and probe and discuss but I do not attack people. In the main I agree with you, I did have a problem with your approach to treatment of officials and I said so. Proper civil discourse is something I believe in, and I apologize if you feel I have attacked you.
can I come and see the garden and the chickens?
am I allowed to come see the chickens?
Rob Burke
12:19 pm on Thursday, May 17, 2012
Scondo: YES!! OF COURSE!! Come on down, you'll get a kick out of it. The hens are a ton of fun and they have gotten comfortable here already. I love having people come visit to check it out. By all means, come on by. If you are more comfortable without me being here, I usually take off Wednesdays & Thursdays. I'm here today, though, which is unusual for a Thursday. If you are comfortable meeting face to face, come over today if you can. Its gorgeous out and the garden is looking quite beautiful.
Nose Wayne
12:52 pm on Thursday, May 17, 2012
ALL,If you been reading between the lines,the PERSONAL ATTACKS against rob should speak for themselves.Having lived in this town for over a half a century(50 years for some of you) just kidding, i have seen the POLITICAL VENDETTAS this town has had against people.Rob, As for my anonymity, like waynes world, i have my own personal reasons not to post my name.BUT that should not in any way or form reframe you or anybody else on my views.I,like you do their homework before i post.I like many think you will pervail and i hope Victor is found NOT GUILTY!! today. As for the attorneys,they seem like the only ones that come out ahead of the GAME.
Rob Burke
1:11 pm on Thursday, May 17, 2012
Well, you know my views on anonymity. As far as Victor's case, get this. The prosecution's chief witness testified under oath that there is no evidence that Victor has ever sold any eggs or anything else from his Victory Garden. You would think that would be it right then & there: game, set match. Since the ordinance only prohibits hens if you sell the eggs, there's nothing else to talk about. So how did the Municipal Judge rule?
He didn't.
He took it under advisement and will rule at a later date.
Seriously? You can't make this stuff up. The man was entitled to an acquittal then and there, on the spot. There's no room for ambiguity here. There isn't even room to declare, 'It depends on what the definition of 'is' is."
Very sad. I hope the Judge doesn't wait too long and that the ruling is consistent with the law. Victor deserves it, and should have it already.
Nose Wayne
1:30 pm on Thursday, May 17, 2012
Rob, It's like ASSUME. And you NOSE what that means.Like you said ,can't make this stuff up! The SHOW MUST GO ON AT OUR COST!!
Justice
4:52 am on Friday, May 18, 2012
Great Work Rob. This town doesn't appreciate your value and vision regarding all your conservation efforts.
Justice
4:55 am on Friday, May 18, 2012
Re Victor's case, let me guess, an over-zealous, over-opinionated, over-mandatory retirement age, bullying prosecutor? Oh, I keep forgetting, this council is above the law and enforces it sporadically, such as not mandating prosecutors that are over 70 years old to retire.
Nose Wayne
8:24 am on Friday, May 18, 2012
Justice, The RIGHT way, and the WAYNE way.Of the people,By the people,Screw the people. Only in Wayne.
Sandy Fantau
6:15 pm on Friday, May 18, 2012
Rob, not sure how many years it has been that I have supported your efforts for the windmill. I do hope this can be over with soon. I stopped by last weekend to see the girls. They are so cute. The Victory Garden looks great. Artan had me laughing so hard when he told me his mom had to come up and help him put the girls to bed. Can't wait for the fresh veggies.
Rob Burke
8:07 pm on Friday, May 18, 2012
Hey Sandy! thanks so much for your kind words. Getting those hens in the coop at the end of the day is a bit of a challenge. Turbine Tillie has been the last one in every single night. She's smaller, lighter in color and fast! Anyway, it's been about 5 years now, re the wind turbine. I am very concerned right now though with what Victor is being put through. It's truly disturbing. More to follow on both fronts, soon.
Cathy Kazan
9:45 pm on Friday, May 18, 2012
Thanks for the tour of the coop and garden, and especially for introducing me to the "girls". I really can't wait to hear how the case with Victor Alfieri shakes out. I would love to have a few chickens. I also think having school children visit would be a fantastic learning experience. As always, I also hope this whole turbine mess is over for you soon. These things really take their toll on a person's health. I hope the "girls" have a calming positive effect.
Rob Burke
5:37 am on Saturday, May 19, 2012
My pleasure, Cathy! As far as victor goes, I am dumbfounded that the municipal judge didn't rule from the bench. I am equally curious that they made victor wait to be the very last case in an otherwise empty court room. There isn't any room for interpretation here. The ordinance regulates the keeping of hens ONLY if the purpose is PRINCIPALLY FOR THE SALE TO OTHERS. Town Planner John szabo testified that he had no evidence that victor ever sold anything to anyone. If the judge can't rule from the bench n this, then maybe he shouldn't be a judge? No eggs, no justice?