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TOWNSHIP OF CLINTON v. USPS

June 17, 1986

TOWNSHIP OF CLINTON, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, GAETANO T. DE SAPIO and MARTIN J. DE SAPIO, Defendants



The opinion of the court was delivered by: FISHER

 Before the court are cross-motions for summary judgment. Plaintiff, a municipal corporation of the State of New Jersey, requests (1) that the court enjoin the United States Postal Service and the De Sapio defendants, operators of a construction firm, from building a postal substation in the Annandale section of Clinton Township, and (2) that the Postal Service be required to follow certain administrative notification procedures in the event of future efforts to implement construction. The Postal Service and the De Sapios seek summary judgment in their favor dismissing the action. Jurisdiction over the subject matter is based on 28 U.S.C. §§ 1331, 1339, 1346.

 The court has considered affidavits, documentary evidence and oral argument. For the reasons contained herein, defendants' cross-motion for summary judgment is granted. Plaintiff's motion is denied.

 Material events in this case began to unfold in 1981. Until June of that year the Postal Service had leased space in a building owned by the Township of Clinton in the unincorporated Village of Annandale. (Affidavit of Stephen A. Marcinek at para. 2). *fn1" In June 1981 the township required the Postal Service to vacate that building and as an "interim measure" the Postal Service moved its post office to a small trailer behind the municipal building. The Postal Service has since operated out of that trailer "under extremely inconvenient conditions." Id.

 Also in June 1981, the Postal Service invited bids for the construction of a new facility to be leased by the Postal Service on a parcel of land in Annandale. Advertisements were placed in the classified real estate section of the local newspaper, in the Annandale post office, and in five neighboring post offices. The De Sapios were the only bidders. They proposed a facility on property (for which they held an option to purchase) known as the "Coss parcel on West Street." The westerly side of West Street terminates in a dead end and is adjacent to a school for small children. (Plaintiff's Brief at 1). The De Sapios' bid was accepted by the Postal Service on November 21, 1981. (Marcinek Affidavit at para. 3).

 Plaintiff's case hinges entirely on the weight and significance to be accorded the failure of the Postal Service to submit the A-95 notice to the correct clearinghouse. Is the error a mere "technical deficiency" overcome by subsequent actual and constructive notice to appropriate local authorities, or is it a "jurisdictional defect," irremediable by subsequent acts and necessitating that the court nullify both the selection of the Annandale site and the contract awarded to the De Sapios?

 The basic issue thus described can be sharpened by a further statement of material facts. After November 12, 1981, the date of the Postal Service's acceptance of the De Sapios' bid, there were several contacts between Postal Service representatives and local officials, including the then mayor who was also a member of the Clinton Township Planning Board (the Board). As a result of these contacts the Board assertedly became aware of the plan to relocate the post office to the new Annandale site. (Marcinek Affidavit at para. 5; Affidavit of L. Richard Kaufman). *fn3"

 In late November Gaetano T. De Sapio appeared before the Board subdivision and site plan review committee and generally outlined the building project. "The Planning Board voiced no objection at that time." (Marcinek Affidavit at para. 6; see also Affidavit of Gaetano T. De Sapio at para. 7). Similarly, in February 1982 De Sapio met with the township council to discuss sewer service for the new facility. The Council approved De Sapio's plans for tieing into the envisioned sewer system. "They made no objection to the location of the post office on the proposed site." (Gaetano T. De Sapio Affidavit at para. 8). Also at that time Carolyn Neighbor was a member of both the Board and HCPB.

 Although the asserted passiveness on the part of the township council, as related above, cannot be weighted heavily in the overall analysis, it is clear and fair to presume from all these facts that as early as November 1981, and certainly by February 1982, all concerned local authorities had acquired knowledge of the proposed postal project, notwithstanding the lack of A-95 notice.

 In the spring of 1982 De Sapio sought the township's subdivision and site plan approval and relief from various zoning restrictions. The Board rejected the application, asserting that the site was poorly located in proximity to an elementary school, would generate too much traffic, and would violate set-back and other restrictions. In a letter dated August 2, 1983, William A. Shurts, Clinton Township Planning Board Attorney, proposed six alternative sites. (Schedule A, Affidavit of Gaetano M. De Sapio filed May 27, 1986). Each of these was studied by the Postal Service but was either found unavailable or deemed unsuitable. (Marcinek Affidavit at para. 7).

 Mr. Marcinek further stated that

 
in addition to investigating the alternative sites proposed by the Township, the defendants endeavored to satisfy the Township's particular reservations about the West Street site. In January and February 1985, twelve separate concerns were . . . summarized in a letter from the chairperson of the Clinton Township Planning Board, Carolyn Neighbor. The Postal Service agreed to satisfy all twelve of the itemized concerns . . . and has or will incur approximately $60,000 in further expenses as a result. . . . As a matter of practice, where no county road is affected by the federal action, the Postal Service generally does not accord great weight to the ...

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