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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.

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, .

“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 in December as part of the agreement.

The case has since been .

According to the letter, representatives for Burke and the council 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 May 17, 2012 at 02:12 PM
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????
Scondo May 17, 2012 at 02:14 PM
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.
Al Scala May 17, 2012 at 02:24 PM
Scondo...I have a better idea. Let's not de-elect them, let's deport them!
Rob Burke May 17, 2012 at 02:28 PM
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 May 17, 2012 at 02:32 PM
PS -- go read a couple articles from The Record from last fall. I believe they covered Council meetings I spoke at and quoted me.
Scondo May 17, 2012 at 02:39 PM
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.
Scondo May 17, 2012 at 02:41 PM
You should also get your delay damages, the difference in operating expenses that you incurred deducting that which you would have saved.
Rob Burke May 17, 2012 at 02:49 PM
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 May 17, 2012 at 02:50 PM
And I do agree, the lawyers representing the Town are the best in the business. No question about that.
Rob Burke May 17, 2012 at 02:55 PM
( - :
Al Scala May 17, 2012 at 02:58 PM
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?
Rob Burke May 17, 2012 at 03:04 PM
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.
Rob Burke May 17, 2012 at 03:06 PM
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."
Wayne's World May 17, 2012 at 03:37 PM
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?
Wayne's World May 17, 2012 at 03:40 PM
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.
Rob Burke May 17, 2012 at 03:44 PM
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...
Scondo May 17, 2012 at 04:09 PM
@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 May 17, 2012 at 04:19 PM
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 May 17, 2012 at 04:52 PM
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 May 17, 2012 at 05:11 PM
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 May 17, 2012 at 05:30 PM
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!!
leanbean May 18, 2012 at 01:11 AM
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 May 18, 2012 at 01:21 AM
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!
Justice May 18, 2012 at 08:52 AM
Great Work Rob. This town doesn't appreciate your value and vision regarding all your conservation efforts.
Justice May 18, 2012 at 08:55 AM
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 May 18, 2012 at 12:24 PM
Justice, The RIGHT way, and the WAYNE way.Of the people,By the people,Screw the people. Only in Wayne.
Sandy Fantau May 18, 2012 at 10:15 PM
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 May 19, 2012 at 12:07 AM
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 May 19, 2012 at 01:45 AM
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 May 19, 2012 at 09:37 AM
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?

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