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January 25, 1988

Borough of Maywood, Plaintiff,
United States of America, et al.; Stepan Company, Plaintiff, v. Township of Rochelle Park Planning Board, et al.; Stepan Company, Plaintiff, v. Borough of Maywood Planning Board, et al.

The opinion of the court was delivered by: ACKERMAN

 THE COURT: This matter is before the Court on motions of Stepan Company and the Department of Energy ("DOE") for judgment on the pleadings in an action entitled Borough of Maywood v. United States, Civil Action No. 85-5745, and for summary judgment in simultaneously pending proceedings captioned Stepan Company v. Township of Rochelle Park, Civil Action No. 86-3696 and Stepan Company v. Borough of Maywood Planning Board, Civil Action No. 87-1852.

 On December 12, 1985 the Borough of Maywood filed the original complaint seeking the Court to, inter alia, set aside a conveyance made by Stepan Company to the United States and declare as void the deed dated September 23, 1985, which embodies this conveyance because Stepan and the government have failed to obtain prior site plan and subdivision approval as assertedly required by state statute and local ordinances.

 Subsequently submitted applications were denied and so on June 26, 1986, and April 16, 1987, Stepan filed suit in state court against the Planning Boards of the Township of Rochelle Park and the Borough of Maywood, respectively, to set aside their denial of these subsequently filed applications.

 Following removal from the Superior Court of New Jersey, on June 5, 1987, United States Magistrate G. Donald Haneke ordered that the civil actions entitled Stepan v. Rochelle Park and Stepan v. Maywood be consolidated for all purposes with the civil action of Borough of Maywood v. United States to better serve "the interests of justice and of judicial and litigant economy."

 On June 23, 1987, Magistrate Haneke ordered, with the consent of all parties, that the United States be realigned as a nominal plaintiff in the proceedings against Maywood and Rochelle Park.

 On October 2, 1987, Stepan Company filed the present motions for judgment on the pleadings and for summary judgment. Similarly, on that date, the United States filed its motions for judgment on the pleadings and for summary judgment and has acknowledged that it will rely on the arguments and exhibits submitted by Stepan.

 According to Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings "after the pleadings are closed but within such time as not to delay the trial." If, however, "on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."

 Since the movant relies on and has submitted matters beyond those contained in the pleadings and since these matters have been considered by the Court, I must view all of the motions under the summary judgment standard of Rule 56. See Federal Rule of Civil Procedure 12(c).

 Summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, the pleadings, dispositions, answers to interrogatories, affidavits and admissions on file demonstrate that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial" or it will be defeated on the motion. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting Federal Rule of Civil Procedure Rule 56(e)).

 Since this motion is before me in the nature of summary judgment, I will view the facts in a light most favorable to the nonmovants. T. J. Trauner Associates v. Cooper-Benton, et al., 820 F.2d 643 (3d Cir. 1987).

 Viewing the essentially undisputed facts in this way, I find that:

 From the early twentieth century until 1959, Maywood Chemical Works operated a chemical plant at 100 West Hunter Avenue, Maywood, New Jersey. The company manufactured a variety of products utilizing thorium, a radioactive material. During World War II, thorium products were produced for the Navy and radioactive waste material had been stored on unused portions of the Maywood property.

 In 1959, the plant and the land surrounding it were acquired by Stepan Company. In the early 1980s, thorium wastes were discovered to be emanating unacceptable levels of radiation. Pursuant to the fiscal year 1984's Energy and Water Appropriations Act, Congress directed the United States Department of Energy to decontaminate the site and acquire a portion of the site for temporary storage of the radioactive waste removed from nearby contaminated residential properties.

 On June 15, 1985, Stepan and the DOE entered into a cooperative agreement in which the DOE agreed to perform the decontamination work in consideration for Stepan's donation of a parcel of its land plus $ 580,000. Specifically, the agreement included a provision by which Stepan agreed to "convey to the DOE by general warranty deed, for and in consideration of one (1) dollar, a parcel of land from its Maywood site, which shall be used by the DOE as a storage site for the project work." See Cooperative Agreement, dated June 15, 1985, Article VI, Paragraph A, Page 5, attached as Exhibit A to the motion of Stepan Company.

 The land, fully described in Appendix A to the Cooperative Agreement, totals 11.71 acres and straddles the border of the Township of Rochelle Park and Borough of Maywood.

 On September 23, 1985, the sale of this parcel was completed. See Exhibit H to Stepan's motion. Stepan continues to own the remainder of the site.

 On October 4, 1985, Stepan submitted "a pro forma post facto" preliminary plan for subdivision to the Maywood Planning Board. See Exhibit D to Stepan's brief.

 A similar plan was later submitted to the Township of Rochelle Park. Both Maywood and Rochelle Park denied the request for subdivision and site plan approval.

 On March 9, 1987, Maywood issued a statement which embodied the basis upon which it denied Stepan's applications. The primary reasons are as follows:

1.) Stepan's application was made as "a fait accompli" after the conveyance had occurred and without seeking approval for the resulting subdivision from either the Planning Board of Maywood or Rochelle Park and thereby violated Article ...

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