Tentative Trial Date Set for Lawsuit on Bernards High Athletic Field

A motion by Bernardsville Borough seeking to bow out from a citizens group's lawsuit against plans to expand a multi-purpose athletic field into woods at the far end of Bernards High School was denied by a Superior Court judge last week, at the same time a tentative trial date was set for October.

"We are very pleased that the judge is allowing the legal process to proceed," said Jeanne DePodwin of Old Colony Road, who with her husband started Active Citizens for Responsible Sustainability, Inc. (ACRES) this spring.

The group filed a legal challenge at the beginning of April disputing the Borough Council's waiver granted to the Somerset Hills Board of Education to cut 200 to 300 trees on the property. The suit also asks to ensure that state and federal regulations are properly met.

ACRES contends that the school board's plans for the field understate how much the area in a "pocket woodlands" behind Old Colony Road and the Bernardsville Centre shopping center would be distributed by the project, DePodwin said.

State Superior Court Judge Yolanda Ciccone also set a tentative trail date of Oct. 9 during last Friday's court hearing, said Dan Somers, attorney for ACRES.

John Pidgeon, attorney for Bernardsville Borough, called the judge's denial of a dismissal of the case against the borough at this time was "procedural." He said Ciccone's decision leaves open the possibility for the borough to seek judgment for the case to be dropped in the future. 

Pidgeon emphasized that the proposed athletic field is not the borough's project, but involves the school board's plans for school property. He said that the borough was included in the lawsuit after granting the school board a waiver from a borough tree ordinance in February. However, he said the school district could pursue other ways of gaining permission to cut the trees.

The judge's decision not to dismiss the case against the borough means that the both sides now can exchange expert reports and other discovery materials, Somers said. He said the judge also had denied a similar motion by the Board of Education for a summary judgement to end the case against the school district back in May.

Both he and DePodwin said that includes reports already produced by experts hired by ACRES, which critiqued and found alleged deficiencies in the school board's application to the Department of Environmental Protection for permission to extend the field into a wooded area behind Old Colony Road and the Bernardsville Centre shopping mall.

The DePodwins, through ACRES, assert that the area where the field would be built below the existing baseball and softball fields has active streams at many times, and is more of a wetlands area than as portrayed by the school's application.

"Everyone is waiting for the DEP determinations before a decision is made to revise the [field] plans, abandon the project or proceed," Somers said.

The state DEP's determinations on the project also might determine how the field plans might be revised even if the project does move forward, he said.

DePodwin said previously does not oppose an athletic field, but feels any field constructed should be created in a proper way. At meetings earlier this year, residents of Old Colony Road have described wet conditions on the proposed field site, and have expressed concerns that cutting down hundreds of trees would increase flooding on their properties.

DePodwin on Friday said that the land in question was once used decades ago to study nature, and it could be used for a similar purpose now in a school district that has been lauded on the state and national level as a "green ribbon" school for its environmental and energy saving practices.