The shouts, cracks and cheers of summer baseball, absent from the grounds of Union Catholic Regional High School for more than a month, will return to the Scotch Plains school on Wednesday, vice principal and assistant coach Jim Reagan said. Sounds, however, can be deceiving.
Ruling that "there is an imminent harm, an imminent danger of foul balls landing” in neighbors’ yards “on a near daily basis,” Union County Superior Court Judge John Malone issued a preliminary injunction Tuesday that both extends and modifies a temporary restraining order he granted June 8, which prohibited Union Catholic from holding or permitting baseball games or practices on the field it renovated in 2009.
In issuing Tuesday’s preliminary injunction – the middle step between a temporary restraining order, issued as a short-term remedy for emergencies, and a permanent injunction, which can only be ordered after a full trial – Malone upheld the previous measure’s restriction against games and full practices. However, he granted the school permission to hold and allow batting practice inside the enclosed bullpen located on the baseball diamond’s first-baseline. He also stated that the school may hold infield ground-ball practices, so long as the balls are hit by coaches, not players. Neither activity would put residents at risk of being struck by errant foul balls, Malone said.
Lawyers representing the two sides in this legal fight will next meet with Malone on Sept. 23 for a conference. If the dispute ultimately proceeds to trial for a permanent injunction, the preliminary restraining order could bar Union Catholic from holding baseball games or full practices at its field through parts of 2012.
The two restraining orders stem from a lawsuit filed June 5 by Rajul and Sachin Shah, of 4 Dutch Lane. The couple, whose backyard overlooks left field, allege that since Union Catholic overhauled the school’s athletic fields, more baseballs than ever before have been flying into the family’s backyard, threatening both life and property.
Assistant principal and baseball coach Jim Reagan, in an affidavit filed with the court June 28, calls the Shahs’ claims “blatantly false.” He argues that the renovation shifted the diamond farther from the school’s property lines and that the new field incorporates higher fences.
These arguments were reiterated by the Shah’s and school’s lawyers on Tuesday. Scotch Plains resident Marc Rogoff, the attorney representing Rajul and Sachin Shah, spoke first. “If you’re going to conduct an activity on your property, you can’t put people around you at risk,” he argued. “Things are now worse than ever. Do we know why it’s happening? It doesn’t matter. It’s happening. The law doesn’t distinguish between seven balls, five balls, three balls.”
Bill Butler, the attorney for Union Catholic and a resident of Black Birch Road – three houses away from neighbors who have loudly criticized the school for its field renovations – nevertheless pointed out in his remarks that only three baseballs had fallen into the Shahs’ yard over the course of a year.
“We don’t have the intensity and duration to make this a nuisance” and therefore worthy of an injunction, Butler said. “God forbid somebody gets hurt, his parents have a remedy. It would be a tort remedy” – in other words, a lawsuit against the school.
Butler added that he and school administrators plan to apply to the Scotch Plains Zoning Board of Adjustment for approval to construct a “horizontal ball containment system” – a complicated series of vertical and horizontal nets that would stretch between four poles along the first- and third-baselines. The school must obtain a variance or waiver from the zoning board to build the system because the poles would be located 15 to 20 feet from the school’s property lines, within a 100-foot setback that township zoning law dictates must be clear of structures.
Malone said he applauded Reagan and Butler’s “efforts at moving forward on the containment system,” which he argued, “is just absolutely necessary to protect everybody.” He noted, however, that the netting system “is not something that’s going to happen overnight,” and that the apparent foul ball threat therefore merited a preliminary injunction.
“This is not an isolated, occasional trespass on somebody’s property, barely noticeable,” Malone said. “This is an instance where the use of the property is actually restricted, and I’m satisfied that the facts before the court do support that.”
Reagan, Shah, and their lawyers all called the ruling “fair,” but also shared mixed reactions. “We are definitely disappointed that the judge believes that foul balls are a daily occurrence at the Shah residence, which we know isn’t true,” Reagan, the assistant principal, said. “But we are happy that we will be able to hit in the cage and use the field. But we look forward to the day when we can play games again in the field.”
He added that the school’s annual summer baseball camp, scheduled to start next week, had been suspended due to the uncertainty surrounding the baseball field. “I look forward to contacting parents” to tell them that the camp will be held, Reagan said.
Shah stated she was both grateful and wary. “I’m happy that the judge recognized that the safety of my children is worth more than a game,” she said. “I’m not convinced that these coaches can keep those balls on the ground. They better, because if I have to, I’ll buy a camera system to film them all day. If any ball comes near my yard and my children, they’ll pay.”
Shah also expressed disbelief that Butler suggested she could seek legal remedies if a member of her family is struck by a ball. “I’m appalled that UC thinks that legal damages would be enough if my child gets injured or killed from a baseball,” Shah said.
Rogoff, her attorney, added, “I don’t understand that argument. ‘If a foul ball hits someone in the head, they can sue us.’” Rogoff also made reference to seeking monetary damages, but declined to estimate the amount he or Shah would hope to obtain.
“What’s the value of your property in the summer. A per diem rate? $100 per day? $200 per day?” Rogoff said. “The counsel fees are significant. They put us through the mill. The Planning Board, the Zoning Board. It’s a lot of work.”
Elizabeth resident Oscar Ortizo, the father of a 2007 Union Catholic graduate and two twins entering the ninth grade – all of whom play baseball – sat in the gallery during the hearing. A loan officer for the Elizabeth Development Corporation, he said he took time off from work to watch the proceedings.
“Before I formed an opinion, I wanted to hear all the facts,” he said.
A Union Catholic baseball parent since 2003, he said he often retrieved foul ball from neighbors’ yards before the start of the dispute in 2009. “Batted balls have been going into her yard before this. More balls, I would say,” Ortizo said of the Shah property. “I don’t want to say the lady was lying, but there were some inaccuracies.”
Heidi Terens, of 26 Black Birch Road, was perhaps the most dissatisfied by the ruling. Only 15 feet separate her home’s backyard from the enclosed bullpen. When athletes use the bullpen as a batting cage, “it’s like being in an arcade,” she said. “We can hear it in every room of our house.”
When Malone ruled that Union Catholic could resume using the structure for batting practice, Terens, sitting in the front row of the gallery, rolled her eyes toward the ceiling and sighed.
“I’ve got to get rid of the batting cage,” she said. “I don’t know how. I’ve got to.” The hearing over, she picked up her bag and quickly exited the courtroom.
To read our three-part series on the legal fight between Union Catholic and its residents, . To read the accompanying editor's note, .