Old Bridge Township, New Jersey - Sept 9, 2002 Minutes

A Regular Meeting of the Township Council of the Township of Old Bridge was held on March 11, 2002 in the Municipal Complex. The meeting was called to order at 8:05 p.m. by President Butler.

Deputy Clerk, Stella Ward, announced that pursuant to Section 5 of the Open Public Meetings Act, this meeting has been advertised in the Home News and Tribune and that the next public meeting would be held on Tuesday, September 17, 2002 at 8:00 at the Memorial School located in Laurence Harbor.

Roll call by Deputy Clerk Ward showed the following answering present: Councilmen Baker, Calogera, Greene, Hoff, Redmond, Testino, Councilwoman Panos, President Butler. Councilman Maher arrived at 8:15 p.m.

RESOLUTION NO. 443

BILL LIST

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

WHEREAS, the Business Administrator has the responsibility of approving all bills and vouchers subject to preaudit and control; and

WHEREAS, the Director of Finance is responsible for the preaudit, the disbursement of all monies and the control over all expenditures to ensure that the budget appropriations are not exceeded; and

WHEREAS, the Finance Committee of the Township Council has satisfied themselves in respect to the bill listing of September 9, 2002 there exists a detailed bill or voucher supporting each payment and there is indication that goods or services have been received or rendered.

NOW, THEREFORE, BE IT RESOLVED by the Township Council of the Township of Old Bridge that the bill listing of September 9, 2002 as approved by the Business Administrator after preaudit and control by the Director of Finance and after review by the Finance Committee be spread on the minutes in the amount of $14,240,514.16. (Accounts Payable)

Moved by Councilman Hoff, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

ABSENT: Councilman Maher.

RESOLUTION NO. 444

BILL LIST

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

WHEREAS, the Business Administrator has the responsibility of approving all bills and vouchers subject to preaudit and control; and

WHEREAS, the Director of Finance is responsible for the preaudit, the disbursement of all monies and the control over all expenditures to ensure that the budget appropriations are not exceeded; and

WHEREAS, the Finance Committee of the Township Council has satisfied themselves in respect to the bill listing of September 9, 2002 that there exists a detailed bill or voucher supporting each payment and there is indication that goods or services have been received or rendered.

Moved by Councilman Hoff, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

ABSENT: Councilman Maher.

RESOLUTION NO. 445 DENIED

BILL LIST

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

WHEREAS, the Business Administrator has the responsibility of approving all bills and vouchers subject to preaudit and control; and

WHEREAS, the Director of Finance is responsible for the preaudit, the disbursement of all monies and the control over all expenditures to ensure that the budget appropriations are not exceeded; and

Moved by Councilman Baker, seconded by President Butler and so denied on the following roll call vote:

AYES: Councilmen Baker, Redmond, President Butler.

NAYS: Councilmen Calogera, Greene, Hoff, Testino, Councilwoman Panos.

ABSENT: Councilman Maher.

RESOLUTION NO. 446

BILL LIST

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

WHEREAS, the Business Administrator has the responsibility of approving all bills and vouchers subject to preaudit and control; and

WHEREAS, the Director of Finance is responsible for the preaudit, the disbursement of all monies and the control over all expenditures to ensure that the budget appropriations are not exceeded; and

Moved by Councilman Baker, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

ABSENT: Councilman Maher.

RESOLUTION NO. 447 DENIED

BILL LIST

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

WHEREAS, the Business Administrator has the responsibility of approving all bills and vouchers subject to preaudit and control; and

WHEREAS, the Director of Finance is responsible for the preaudit, the disbursement of all monies and the control over all expenditures to ensure that the budget appropriations are not exceeded; and

Moved by Councilman Baker, seconded by President Butler and so denied on the following roll call vote:

AYES: Councilmen Baker, Redmond, President Butler.

NAYS: Councilmen Calogera, Greene, Hoff, Councilman Testino, Councilwoman Panos.

ABSENT: Councilman Maher.

Prior to the roll call vote the following discussion took place.

Councilman Calogera: What is the animal control overtime related to?

Ms. Shepler: The amount is $240.00, but I don't know the details. We have the payroll of August 15 and 29, both of which had about $200 in overtime. I will ask for an explanation and give you the details.

RESOLUTION NO. 448

APPROVAL OF MINUTES

BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, New Jersey that:

the following minutes are hereby approved:

July 8, 2002 - Combined July 22, 2002 - Combined

Moved by Councilman Baker, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Redmond, Councilwoman Panos, President Butler.

NAYS: None.

ABSTAIN: Councilmen Hoff, Testino.

ABSENT: Councilman Maher.

Report of the Attorney.

Attorney Ruggierio: There has been a new lawsuit against the township by the owners of the golf center which concerns the matter of the vacation of the road right of way which was subsequently rescinded. The golf center wants a judgment of the court requiring the township to honor its vacation of the road easement. This will be answered in the next few weeks.

Mr. Maher and the Mayor had a meeting with the people from the YMCA along with at Ms. Panos and Mr. Redmond. From the township's legal point of view, we are going to be drafting an agreement along the lines of what was discussed. The other two elements which we are not involved in, but are on going, are the site selection (which you appointed an engineer to do), and the feasibility study to be done by the YMCA on the likelihood that sufficient donors exist to allow the project to go forward.

I will be requesting an executive session on the Conde case, but because of the shortened deadline with respect to applications to the Supreme Court for certification, this is not an appeal that we would have as a matter of right. The deadline expires on Thursday. My recommendation is that we not appeal this matter. The judgment is only for the back monies not paid under the special compensation to Conde which we contested based on his status as a convicted felon. The Appellate Court vacated $41,000 of prejudgment interest, and we were very interested in that. Unless council wants a meeting about this, the deadline is going to expire on Thursday unless I am directed to take an appeal. It is my recommendation that we not appeal the remainder of the judgment.

The Franks/Popek special compensation case is complicated, and I have recommendations concerning whether to appeal certain elements of that case. Except for one element, In most instances I will recommend against appeal. I would like to speak in executive session at the next agenda meeting.

Councilman Redmond: Do we have a total on the Conde case, or do we need an executive session?

Attorney Ruggierio: I can refresh my recollection and tell you before the meeting is over. I don't remember the exact amount.

Councilman Testino: Has your opinion changed on the Legends matter? Perhaps we were not on good legal grounds with this.

Attorney Ruggierio: I told you that the council should vacate the portions of the easement that had never been used as actual roads. I made that recommendation based on what would be a quasi-legal opinion in the sense that this was an equitable question. The council would be carrying out their original intention if they did that. I wrote a letter recently telling the attorney for the golf center that I felt that the fact that this vacation included both traveled portions of roads that were merely paper streets that probably made the ordinance invalid, and that they could not force us in a courtroom to reinstitute the ordinance. My recommendation to you as a matter of what is basic fairness is that you carry through with what you committed to do, and that which was only not done because it was a technicality in the way the description was given to us.

Councilman Testino: Perhaps we should revisit this after we have to time to review their arguments in the lawsuit. I don't disagree with your analysis of the inequities in the matter, and that is why I feel to continue the litigious posture is just bringing the litigious name to Old Bridge again when we should be moving on with our other business. When you get further into the matter, bring it back to the council.

I am not clear what you are saying with respect to the YMCA. I thought that we were going to have an agreement shortly, but this is being dragged out. Am I to understand that they will not be entering an agreement with us until they complete their funding survey?

Attorney Ruggierio: They indicated that this would take approximately 60 - 90 days to do that type of feasibility study to determine if the project could be funded by high donor capitalization. The public officials and YMCA officials decided to move on a simultaneous track to get the agreements drawn. This did not seem to be a hold up to the process because a site has not been selected.

Councilman Testino: I am not in total disagreement; I think we are in a holding pattern until they are willing to put money down to back up their promises. I assume that will not be in final form until we have their consent to go forward.

Attorney Ruggierio: They brought a lawyer to the conference, and we both agreed that we would work diligently to get the agreement done, but that is held up because the township has not selected a site, and by the time we do, they will probably be completed with their donor feasibility study. The worst is that we would have drawn an agreement, selected a site, and have them back out at that point. We could not have an agreement signed any sooner than that.

Councilman Greene: We spoke about the Matzel development. It is on the agenda this evening. Will we be speaking about this again?

President Butler: We will decide whether to move it up. Bill is recommending that we do it, and we have a lawsuit. We will discuss it at that time.

Councilman Greene: I am not sure what the vote is, but I want to go on record saying that I support the attorney and his position on this. This is clearly an example of what everyone will point to as over development when you have a legitimate commercial enterprise which is the golf facility, and they turn around under the guise of expanding the golf facility, and through a technicality they did not get that paper street. Now, they want to build 450 apartments on 15 buildings on that site, and I am dead set against it.

Councilman Maher: With respect to the YMCA meeting, is there a rough draft of the agreement that is ready for circulation?

Attorney Ruggierio: I went back at the time of our last meeting and made notes of things that would be contained within the agreement. I outlined that to the people at the meeting. I will certainly work to get you an agreement if you think that is important, but that seems like putting the cart before the horse because we don't have site selection in place. I did not recognize that this was something that I had to turn around in a week.

Councilman Maher: The meeting was held last Wednesday; its purpose being to frame out the agreement and to put together things we would like to see in the agreement from the township's and YMCA's prospective. Mr. Ruggierio reported that we recognized that there is a need to move forward on the site selection. The engineering firm has been given thirty days to analyze those seven township sites with respect to the advantages and disadvantages of some sites. I intend to present to the council the analysis of the seven sites and the advantages and disadvantages with respect to building the 51,000 square foot facility. We are all moving forward with the understanding that this agreement will be and should be executed within 90 days. We are doing a lot of things in parallel. The YMCA asked for an opportunity to gauge fund raising activities with respect to businesses, individuals within the township territory for the purpose of seeing if they can get some donations and determining how much money they need to raise themselves with respect to building the 51,000 square foot facility. We are meeting on September 19, and we will have a read out from the YMCA. They were hiring a consultant to approach corporations, companies and individuals in the township to see whether endowments could be made, and we expect the read out at our next meeting along with a preliminary analysis of the seven potential sites.

Councilman Testino: Where are we in 90 days?

Councilman Maher: We passed the resolution on August 12; ninety days from that is November 19.

Mayor Cannon: As far as the feasibility study goes, this is something when they approached the council over a year ago indicated that if they got some kind of consensus from council that they were interested in pursuing this, they would spend the $25,000 necessary to do a feasibility study to determine the fund raising ability in the community. They have not changed their modus operandi in over a year.

Attorney Ruggierio: What I was hearing from the YMCA people was that they need 90 days to do their feasibility study which takes us to December 1. We will be working on doing the agreement which will be signed assuming their feasibility study indicated that this would be feasible, and by December 1 I think that we will have a site selected and agreed upon. All these elements should come together by that date.

Motion

to accept the Report of the Attorney made by Councilman Calogera, seconded by Councilman Baker, and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Maher, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

Motion

to accept the attorney's recommendation on the Conde matter letting the appeal time expire and pay in accordance with the judgment made by Councilman Testino, seconded by Councilman Baker and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Maher, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

Prior to the roll call vote the following discussion took place.

Councilman Maher: Since I was not here for the attorney's report, I would like an update.

Attorney Ruggierio: We put $120,000 into the court to take care of the judgment entered several years ago. We then took an appeal to the Appellate Division which knocked $41,000 off (these figures are not exact). The special compensation issue involves payments being made by Old Bridge to some of its police officers who retired on disability. The idea being that these monies would be paid above and beyond what they got from the pension board for disability pension. There were about six to eight police officers who were being paid money from the Old Bridge treasury, and in the case of Brown vs Old Bridge the court made certain decisions making us believe that we could stop paying those amounts. We have had many lawsuits in connection with this, and the Conde case is one of these special compensation cases. The township council made a conscience decision that they would not pay Conde because after he stopped being a police officer, he was convicted of a drug offense and went to a Federal penitentiary, and the council made the decision that they thought it inappropriate to be paying someone with that history public money, but the court ruled in favor of Conde saying that his post police officer activity should not affect his ability to get this money. The court also awarded $41,000 in back interest on the payment. The appellate division knocked off the interest.

Councilman Redmond: This money that we are paying out - were we paying him during the time he was incarcerated?

Attorney Ruggierio: Yes, because the Brown case came down during his first year in jail. We cut him off when he was in jail, and the litigation did not pick up for four or five years until he was out of jail.

Councilman Redmond: In essence we are paying him or the time he spent in the Federal penitentiary.

Attorney Ruggierio: I don't want to take his side of the argument, but his argument was that he had a wife and children, and they were the ones who were going to benefit from this money.

Councilman Maher: What guidelines are we following with respect to Conde?

Attorney Ruggierio: The contractual language that all of these special compensation cases rely on is language that requires the township to pay the difference between what they are getting as a pension to bring it up to two-thirds so that it is consistent with everyone legitimately receiving these payments. Conde did not get a two-thirds disability, and the difference would be somewhere around the area of the difference between his 40% pension and 46.23% would be the amount that we would be paying, and that is the amount he was making at the time he retired. Today he is entitled to receive between his pension and what we pay, 2/3 of what he was making at the time he retired.

Preliminary public comments.

Ms. Clavering (Irene): I am the cofounder of the Central Jersey Jazz Association with its first meeting on September 18, 2002 at 7:00 p.m. at the library. Vincent Pallone will be the guest.

Ms. Clavering (Anita): The annual candidates forum sponsored by the Monday Morning Advocacy of Middlesex County will be held in the Thomas J. English administration building courtroom on Saturday, September 28 from 1:00 to 4:00 p.m. It is a town home meeting on issues facing citizens with disabilities. There will be an opportunity to address various elected officials and candidates for the general election in November.

Mr. Williams (33 Oak Street): The Friendly Sons of the Shillelagh are building a cell tower, and we were led to believe that it fell through and then we were apprised it was going to be built. Most of my neighbors did not know about it; no one wants it. This cell tower should have been put on township property to lower our taxes.

Ms. Shepler: There is a cell tower located on the property of the municipal complex. This tower was a joint venture between Bell Atlantic Mobil and the township. Bell Atlantic paid for the construction of the tower. We have an interlocal agreement which allows us to place other carriers on that tower. The last one that was put out to bid was a ground lease with AT&T being one of the bidders. We will then have five on the tower - Sprint, Bell Atlantic Mobil, Verizon, AT&T and one other which generates revenue for the township. We have never been approached by anyone else looking to build a tower.

Mr. Williams: No one on Pine, Oak, Birch Streets or Erica or Culver Courts want a cell tower. I am calling the carrier and apprise them of this.

Ms. Shepler: Not all pieces of property are considered adequate for cell tower reception; that is why they look to locate on existing buildings.

Mr. Williams: We are worried about selling our houses. RF radiation is dangerous.

Mr. Armitage: I oppose the input on the 12 police officers. I cannot conceive why we have a public safety issue when less than six months ago we were having sixty and eighty thousand people without a problem. To hire them for six months is ridiculous. Hire two per year for the next six years; get rid of the open space fund. This has to stop.

Mrs. Lawton: Thanks for saving the kennel. A young boy approached my home with a piggy bank full of money for the kittens and dogs. I also found $160 stuck in my mailbox.

Mr. Lawton: I thank the council for their consideration for the kennel and the two animal control officers.

Mrs. York: Thanks for the vote to pave Charles Street. I would be willing to testify that Spring Valley Road was not a paper street. Malboro Road used to take a "loop" from where it currently begins. Before they built Rt. 18, Spring Valley went straight through Marlboro Road to Rt. 9. I have pictures proving that the street I live on was a dirt road. Do we consider them paper streets because we were not as progressive as we are now? Those streets were well traveled, but not paved. If Mr. Greene would like me to go to court to support you, I would gladly testify and bring the pictures. We have to stop giving away roads in this town. We don't have enough connecting roads. The zoning and planning boards are allowing developers to build roads off cul-de-sacs. We make shopping centers install two entrances - why not developers?

Mrs. Staeger (Rt. 34): I am the first private home south of Madison Garden apartments. Across the street is a wooded lot - less than 3/4 acre on which they are building a two-story warehouse. The zoning board says you should have three acres for this, but they shrunk it down to 3/4 acres. We were notified that this was happening, and we went to the meeting. I said this was too big a project for this small piece of land. It is over 2 acres short. Someone from the zoning board suggested that I hire a lawyer and to do superior court. Who are these laws for? The law was changed for one individual. I don't think it is fair for one man who lives in Toms River to change my life and be paid with our taxes.

Councilman Calogera: I believe that there is a system in place to appeal to council. If someone in our planning or zoning department advises you that this is "done deal", come and see me.

Mayor Cannon: You can appeal to council without an attorney.

Attorney Ruggierio: As the law currently exists if there is an application before the zoning board for a use variance or a "D" variance, and that variance is granted, that is appealable within ten to twenty days after the memorialization (converted into a resolution by the board), it can be appealed to the township council for them to either reverse, modify, remand or affirm the decision. This process does not require that you have an attorney. You are not required to go before the Superior Court until the council affirms the decision. The deadlines in Superior Court are forty-five days past the time that the council would act on the appeal. If this is a "D" variance and is granted, you can appeal to the council and Superior Court.

Councilman Testino: Mr. Ruggierio, please speak to Mrs. Staeger off the microphone.

Mark Tasy: (Commerce Bank): Commerce Bank will be opening on Rt. 516 next month. I want to introduce ourselves and we are inviting all residents and elected officials for a grand opening celebration. We are looking forward to serving the Township of Old Bridge.

Mr. Dunlop (17 Jasmine Road): You have a major budget with an increase that has shaken the township. I have watched this town grow with homes, commercials, office buildings, etc. My taxes should be coming down. You are telling me that we are paying a major tax increase. Why? Ten years ago my tax rate was $.76. I could travel on Rt. 516 and be in East Brunswick in twenty minutes. Today I have to wait to exit my development. This is the highest tax increase since I have lived here. Please review the budget carefully.

Ms. Hoffman: The community service program is limited to volunteers in public works and the recreation department. Please consider extending this program to the animal control program. The Middlesex County Probation Office administers the program (with traffic violators) with a blanket insurance policy to cover the volunteers.

Mr. Rao: Spoke about the property and school taxes. Insisted that the Mayor answer certain of his questions.

Reintroduction of the SFY 2002-2003 Budget.

President Butler: This is the first time in three years that the Township of Old Bridge has been eligible for State funds. We had a time frame during which we had to have two meetings, and the process was that we had to get the budget information to the State by the 30th. You have a budget and a wish list. Everything that you wish for you put in that budget. The percent increase was $.14. Between now and later on when we do the budget, hopefully, we will get lower than that.

Proclamation.

WHEREAS, on September 11, 2001 terrorists hijacked two civilian aircraft crashing two planes into the World Trade Center in New York City, a third into the Pentagon outside Washington, D.C. and a fourth into the countryside of Pennsylvania; and

WHEREAS, thousands of innocent people including Americans of every heritage and visitors to our shores were killed and/or injured as a result of these wicked and reprehensible attacks including the passengers of the aircraft and workers in the World Trade Center and the Pentagon, bystanders, tourists and rescue workers; and

WHEREAS, these attacks were the deadliest attacks ever launched against the United States and by targeting symbols of American strength and success were clearly intended to intimidate our nation and weaken its resolve; and

WHEREAS, we commend the heroic actions of the passengers and crews of the aircraft, the rescue workers and volunteers and local officials and so many of the victims themselves who responded to these tragic events with courage, compassion and determination and skill; and

WHEREAS, we denounce and condemn the terrorists who planned and executed this devastation as well as their cowardly sponsors and accomplices; and

WHEREAS, we thank those foreign leaders and individuals who have expressed solidarity with the United States during the aftermaths of the attacks; and

WHEREAS, we support our President, Armed Forces, Federal, State and Local Law Enforcement agencies and Congress in their efforts to bring justice to the perpetrators of these attacks; and

WHEREAS, we stand ready with Governor McGreevey and his administration to share whatever resources may be needed for the on going recovery efforts as well as with any other agencies charged with the investigation of this mass murder and the apprehension of the responsible parties.

NOW, THEREFORE, I, BARBARA CANNON, MAYOR OF OLD BRIDGE, MIDDLESEX COUNTY, NEW JERSEY and the Township Council do hereby designate September 11, 2002 as Always Remember Day in commemoration of the innocent victims and the terrorist attacks on the United States which took place on September 11, 2001. All persons within this municipality are urged to honor these victims by the appropriate display of our flag and a red, white and blue ribbons.

The following is a list of the September 11 victims from the Township of Old Bridge:

Mark Broderick, Charles Costello, Bernard Pietronica, Elvin Romero, William Micciulli, Joseph Howard, Stephen Chucknick, Jose Marrero, Marc Schulman, Robert Miller, Kristine Bordendabe, Michael Davidson

Mayor Cannon: We are having a remembrance ceremony at the Old Bridge Waterfront Park at 7:00 p.m. on Wednesday evening. We invite all of the community to attend as well as the council and all department heads and staff. This is another opportunity to stand together and to remember what we are about and to pay honor to those families who lost loved ones in the attack and to our police, fire and first aid who responded so heroically from Old Bridge. I am ordering that all flags be flown at half-mast and that we have a moment of silence at the time the two towers were struck - 8:45 a.m. and 9:05 a.m.

Moment of Silence.

Councilman Testino suggested a moment of silence to honor all the victims of September 11, 2001.

Reintroduction of the SFY 2002-2003 Budget.

President Butler: We will proceed on what we need to do on the budget. The first process that we have to entertain is something called "reconsideration" where we get an opportunity to reconsider our votes. I will accept a motion and a second.

Motion

to reconsider the votes taken on the SFY 2002-2003 Budget as recorded on August 26, 2002 made by Councilman Hoff, seconded by President Butler. NO VOTE TAKEN

The following discussion took place.

Councilman Greene: Please explain the motion.

President Butler: The motion is to reconsider the vote.

Councilman Greene: All votes that were taken that night?

President Butler: All votes that were taken that night.

Councilman Greene: The finance director is shaking his head "no". Maybe he can give me a clarification on the motion.

Councilman Testino: He call tell us what we need to do.

Mr. Shah: You can do the reconsideration of the vote to add additional police officers. I believe the other items were added with the majority of the vote. I don't think you need to reconsider those. The issue is with the vote on the police - adding additional police officers in the budget.

Councilman Testino: I would take issue with that.

Councilman Greene: It is just the one amendment that we are voting on? What about first entertaining Councilman Redmond's change of vote? Shall we do that first?

President Butler: That is what reconsideration means.

Councilwoman Panos: I did not ask for my vote to be reconsidered. I believe that at the agenda meeting last week, Mr. Redmond wanted to reconsider his vote because it was a conflict of interest. Why are we all held accountable to revote? Why do we all have to reconsider?

President Butler: A council person can always reconsider their vote.

Councilman Testino: If the rest of them let it.

Attorney Ruggierio: The other day at the agenda meeting I think that probably I told you that you should have someone who voted for the motion to move to reconsider it. That is a procedure that is appropriate to a reconsideration that occurs at the same meeting where the vote is taken according to "Robert's Rules". It is not necessary in order to accomplish the official thing that the council wants to do, and I am putting aside for the moment the question of what I have referred to as courtesy to Mr. Redmond, it is not necessary for you to do anything other than rescind your previous action if that is what the vote supports and to reenact a new motion. In this case you can either rescind the budget as submitted and reintroduce it with the new numbers, or you can take a separate vote as was indicated before for just the police officer votes which was the part of the budget that has been called into question. It is not necessary that you take a separate vote as to whether you will or will not reconsider this. You are entitled to reconsider it because this is not the same meeting where the original matter was taken up. I think you can take a separate vote to have the Clerk modify the minutes to indicate that Mr. Redmond's request to have his vote withdrawn with respect to this issue be accepted and that the minutes should reflect this.

Councilwoman Panos: I don't know if I can vote on this. We are reconsidering the whole budget.

Mr. Shah: Regardless of whether the council reconsiders the vote as requested by Mr. Redmond to reconsider the vote on adding the police officers, you need to rescind the budget and reintroduce the budget because as I understand it the attorney has ruled that the vote was invalid and adding that item into the budget is invalid. You have to reintroduce the budget unless the attorney is going to change his opinion.

Councilman Testino: The motion is to rescind and reconsider (the budget).

Councilman Greene: One motion to rescind and reconsider the budget?

Mr. Shah: One motion is to rescind the budget; another motion is separate so that it is recorded separately and the state has a clear understanding (that the vote) is to reintroduce the budget.

President Butler: The first thing that you are suggesting we do is rescind the budget?

Mr. Shah: That is correct.

Motion

to rescind the SFY 2002-2003 Budget as introduced moved by Councilman Hoff, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Maher, Testino, President Butler.

NAYS: Councilwoman Panos.

ABSTAIN: Councilman Redmond.

Motion

for the minutes to reflect that Mr. Redmond's vote has been rescinded and allowing him not to participate on the record made by Councilman Testino

AYES: Councilmen Baker, Calogera, Greene, Hoff, Maher, Testino, President Butler.

NAYS: Councilwoman Panos.

NO PARTICIPATION: Councilman Redmond.

Prior to the roll call vote the following discussion took place.

Councilman Greene: Please explain the motion.

Councilman Testino: I am trying to reiterate what Mr. Ruggierio advised. If I got it wrong, I will ask Bill to enunciate it.

Councilman Greene: I don't think that this had anything to do with Mr. Redmond. All we did was rescind the budget.

Councilman Testino: Maybe I heard Mr. Ruggierio wrong. I am just trying to reiterate what we said we could do.

Attorney Ruggierio: Mr. Testino is indicating that the council would vote to accept Mr. Redmond's request that his vote be rescinded and that would be entered on the minutes of the township record.

Councilwoman Panos: What is the motion?

Councilman Testino: The motion is to allow Mr. Redmond's vote to be reflected as 'not" vote in the minutes.

Attorney Ruggierio: This is almost a ceremonial motion that it has no effect on the official business, but Mr. Testino is trying to move those matters which I said before would be appropriate to recognize that Mr. Redmond has requested the recession of his vote, to recognize that officially and have that entered into the minutes of the council records.

Councilwoman Panos: We are taking a vote that allows Mr. Redmond to reconsider/rescind.

Attorney Ruggierio: The motion that is being made at this time is merely to recognize that Mr. Redmond has requested the recession of his vote to recognize that the council wishes the record of the proceedings to reflect that he has made this request, and that it should be granted, and that this is how the record should be carried forward in the future.

Councilwoman Panos: Let us all learn a lesson from this. We are putting the funds that we can get from the state in jeopardy that could have been handed in two weeks ago. We have to redo a vote; we have a conflict of interest. Colleagues, let us never go through this again. If you don't know who is on list, or if you have a personal interest or you spoke to an attorney, but you did not get the written advice. . . If the matter is gray, stay away!

Subsequent to the roll call vote the following discussion took place.

Attorney Ruggierio: The council has before it the budget as recommended by the Mayor with several additions and deletions. The one matter which was invalidly voted was the 12 police officer additional which came to $258,000. If the council wants to revisit that addition to the Mayor's budget, you have to now take affirmative . . . .

Motion

to reintroduce the budget without the police question moved by Councilman Hoff, seconded by President Butler. NO VOTE TAKEN

Councilman Testino: I think we should take all the amendments again, or reintroduce the budget without any of them.

Mr. Shah: Unless the members of the council want to introduce an amendment to the Mayor's budget to add 12 police officers, we can proceed with the introduction of the budget without that.

Councilman Testino: We don't have to vote on the other additions?

Mr. Shah: If you don't want to add it . . . now you have removed them.

Councilman Testino: I am referring to the police cars, the person in the ice rink - those votes have been rescinded.

Mr. Shah: No, you did not rescind all of them.

Councilman Testino: We have just voted to rescind the whole budget.

Mr. Shah: I think Bill commented by saying that you can now introduce with all amendments except additional 12 police officers.

Councilman Testino: I think your procedure is wrong, but if you want to take a chance on it, go ahead.

Mr. Shah: Let's make it clear. You did rescind the budget as it was introduced, but you have not rescinded additions other than the 12 police officers.

Councilman Testino: All the budget was rescinded.

Mr. Shah: We cannot take chances of reintroducing, so I want to make sure that Bill agrees with what I am saying.

President Butler: We have to put the 12 police officers up to vote on them now.

Mr. Shah: The question is beyond the 12 police officers according to Mr. Testino. The question is that there were other additions to the budget besides the police officers. As far as I know the council has not rescinded that. Those are valid additions.

Councilman Testino: Yes, we did. We rescinded the entire budget.

Mr. Shah: Introduction of a budget and additions to the budget before the introduction are two different things.

Attorney Ruggierio: The process to enact the budget under this form of government requires the mayor to give a recommended budget. That has happened; that has not been rescinded. Then the council can add items of revenue or appropriation (expense), but those additions have to be done by super majority vote of two-thirds of the council. However, the vote that dealt with the 12 police officers ($258,000) was not valid because the vote involved a conflict of interest. That vote, if it is to be valid, has to pass by two-thirds vote tonight if it is to be reconsidered. Otherwise, what can happen is that the council can merely introduce the budget without the 12 police officers, vote on that, and that can pass by a majority vote, or you can deal with the police officer amendment. It is passes by two-thirds, that would become part of the budget, and then you can move on that.

President Butler: That is the process. We need to re-vote the 12 police officers.

Motion

to introduce the SFY 2002-2003 Budget absent the addition of twelve police officers made by Councilman Hoff, seconded by President Butler. NO VOTE TAKEN

Attorney Ruggierio: Mr. Hoff's motion was to introduce the budget absent the twelve police officers. If there is an interest in the twelve police officer vote, you have to take it before you act on Mr. Hoff's motion by stating that you wish to amend Mr. Hoff's motion.

Mr. Shah: I want to read the resolution for introduction. You can then make a motion for introduction.

Councilwoman Panos: Is there a motion on the table here?

President Butler: Mr. Ruggierio stated that in order for us to rectify the police vote, we must re-vote that.

Councilman Testino: That is not on the table.

Councilman Calogera: Why does that need to be re-voted?

Attorney Ruggierio: The question was "Did Mr. Hoff make a motion?". The answer is yes, he did make a motion to introduce the budget without the addition of $258,000 (the twelve police officer amendment). That is the motion before you. If you want to amend that to consider the addition of the twelve police officers, or the $258,000, someone has to make a motion to amend Mr. Hoff's motion to that effect and it has to be seconded. The amendment then would properly be before you.

Councilman Testino: As far as I understand it the state aid is not in jeopardy. I have seen memos memorializing that. As long as we introduce tonight we are in good shape. No one has put the state aid in jeopardy. $4.5 million in state aid is unreasonable. We can ask for the sky, but we are not going to get it. Last year there was $25 million in the state aid program, and no town got over $1.5 million. Those who did were flood victims. There were about 39 towns that received aid throughout the state with the average being between $300,000 and $600,000. When we introduced the budget, we were under the impression that we could go to the state because we are facing a tax increase. We need their assistance to either maintain services or our tax rate, and we wanted to get in on time in order to develop the best case scenario for our taxpayers.

Now that I have this information, I also contacted the state about what we could do after we introduced the budget. It is my understanding that as long as we don't increase the rate, we can make cuts and move things around within the budget, and as long as we use that aid to repress the rate that we introduce tonight, we can sustain the aid, if any, they are about to give us. I think we would be on the order of $300,000 to $750,000 maximum. It was my initial objective to get in the items that I thought were important to Old Bridge, i.e., police, animal control officers - those who are already on staff. It does not seem as tough we are going to get $4.5 million in aid. It does not seem as though we are going to look any more than a penny from the state. My thinking is that we are going to have to go through our entire budget program to find the additional money for whatever - the animal control people, the people in the ice rink, the people in the tax office. My request to the council would be to introduce the Mayor's budget as she gave it to us. Let us find the money in the budget workshops. If they give us $300,000, then we have areas to add and money to chop away from the Mayor's budget. I do not see us increasing the tax rate upon introduction. I ask the council to reconsider that.

Motion

to introduce the SFY 2002-2003 Budget with a $.12 tax increase and allow us to have the opportunity to cut that budget made by Councilman Testino. NO VOTE TAKEN

Councilman Greene: I think this is a great suggestion. I spoke about this at the last meeting. When the idea of adding to the budget came up, I suggested that we do it internally. I overwhelmingly support this. I was dead set against increasing the budget, and we have a great opportunity to decrease the budget further to save the residents money.

Councilman Calogera: I am very aware of the tax burden on the township. I don't understand why we have to increase a budget each year. We should freeze whatever we can. I work for myself, and I don't give myself a raise every year. We have to be considerate. I don't see why we need 3.5% increases in every department for stationary, etc. Let's tighten it up.

Councilwoman Panos: Two weeks ago the Mayor introduced her budget, and the council wanted to add to it. This seems to be the silver lining around the cloud that passed over it.

Attorney Ruggierio: Mr. Testino seems to want to amend Mr. Hoff's motion. I think that should be done formally, and then Mr. Shah can tell you what that motion is.

Motion

to introduce the SFY 2002-2002 Budget as originally presented by Mayor Cannon and work to find additional money in the Mayor's budget to support additional personnel or the people that she saw fit to cut out made by Councilman Testino, seconded by Councilwoman Panos. NO VOTE TAKEN

Councilman Hoff: I have never accepted the amendment.

Attorney Ruggierio: You made a motion which was amended by Mr. Testino and it received a "second". The discussion and vote will be on the amendment.

Councilman Hoff: The reason I wanted this done the way it was done originally was because I remember two meetings here when we had the place full of people arguing valid reasons about the future of the animal control center. We were fortunate enough that this was taken out and we provided for it in the budget against the Mayor's wishes. We are throwing this back to the dogs again. We should not go back into this thing. This made a lot of people happy, but now we are opening this again for no real reason. I am not for this change. I think that we should adopt the budget as amended, not counting the police officers.

Councilman Testino: I make a commitment to find the $150,000 in the budget workshops that we need for the animal control officers.

President Butler: Let's vote on the amendment.

Councilman Calogera: Let's table Mr. Hoff's motion and adopt Mr. Testino's amendment as the motion

Mr. Shah: If I understand correctly, Mr. Testino, you are introducing the Mayor's budget as presented.

Councilman Testino: As presented until the council gets to work with it.

Mr. Shah: All the additions will be taken out of it.

Councilman Testino: I will not be rushed again.

Mr. Shah: I don't think we rushed anything. All of the additions will be taken out of the budget. I want you to understand that the items that require funding will be running out if the budget is not introduced in time. There will be consequences to that. I want you to be aware of that. We will not have enough money in the budget. We can introduce by means of a temporary budget those items that you have added by a motion.

Councilman Testino: These are the Mayor's choices.

Mr. Shah: That is correct, but the others do not have the support of the council.

President Butler: We are voting on the Mayor's budget.

Councilwoman Panos: Do we have to open this to the public?

Attorney Ruggierio: I think the motion to table is a good idea. Table Hoff's motion, and then you can vote on this, and it will be pure.

Motion

to table Mr. Hoff's motion (to introduce the SFY 2002-2003 Budget absent the addition of twelve police officers) made by Councilman Calogera, seconded by President Butler and so ordered on the following roll call vote:

AYES: Councilmen Calogera, Greene, Maher, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: Councilmen Baker, Hoff.

Subsequent to the roll call vote the following discussion took place.

Mr. Shah: I need time to prepare the paperwork to introduce the budget as presented by the Mayor on July 15, 2002.

Hearing.

1. Wawa Store No. 940 (1453 Rt. 18, Old Bridge) - Release/reduction performance guarantee.

President Butler: This is off for this evening.

2. Courtco/Jack Aaronson - Release/reduction performance guarantee.

Mr. Vincenti: Courtco LLC has an oil lube facility located on Rt. 516 west of Gaub Road. We are currently holding a performance bond in excess of $170,000 with no previous reductions. The inspections showed the improvements were satisfactory; no complaints have been received by the surrounding property owners. We are recommending a release of the performance guarantee subject to the developer posting a two-year maintenance bond in the amount of $25,610.28.

Motion

to release the performance guarantee of Courtco/Jack Aaronson subject to posting a two-year maintenance bond in the amount of $25,610.28 made by Councilman Hoff, seconded by Councilman Greene and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Maher, Redmond, President Butler.

NAYS: None.

ABSENT PODIUM: Councilwoman Panos, Councilman Testino.

3. Oxford Estates - Release/reduction performance guarantee. Tabled

Mr. Vincenti: This is a continued hearing for the release of a performance bond for Oxford Estates. We were previously before you on July 22 and May 20 with a number of residents at the prior meeting. We were instructed by the council to review a number of issues. At that time there was a requirement of a reinspection for No. 1 Carrie Drive - Mr. Donahue and No. 27 Annie Drive - Ms. Bran. Also No. 31 Annie Drive - Mr. Agnello appeared to discuss issues with his basement and foundation. These were not bonded items. Correspondence was received from No. 6 Annie Drive - Mr. And Mrs. Paragas.

At No. 6 Annie Drive - this was the same area in our previous recommendation that we had an agreement from the developer. We were going to hold $5000 to replant grass at the end of September. An inspection revealed that there are deficiencies, and our recommendation remains to hold the $5000 which is more than sufficient for these small areas.

At No. 31 and 33 Annie Drive - both residents have issues with problems with their basements which are non-bonded items. I have discussed the matter with Messrs. Dunne and Wurbler, the developer. Mr. Wurbler has agreed to contact both residents to address and repairs problems which are non-bonded, but covered by the homeowners' warranty program.

The remaining two items are with respect to Mr. Donahue and Ms. Bran. These were areas on which we had done an inspection - yard and grading areas. We felt that they were acceptable at the time, and we still do. We asked Mr. Wurbler to contact these residents, but I don't think the problems have been solved. Our recommendation remains to release the bond.

Mr. Whiteman (Heilbrunn firm): The applicant concurs with the statements made by your professional. We have resolved the issues with Mr. Donahue which were non-bondable. My client in good faith has addressed these issues and resolved them. With respect to Ms. Bran (27 Annie Drive) I contacted her and offered a similar offer. The main concerns are warranty issues which have been addressed. Ms. Bran rejected the offer presented by my client. This has been carrying on for some time. All bondable items have been complied with. My client still attempted to address the non-bondable concerns of the homeowners. I ask that council vote to finalize this matter and release the bonds.

Councilman Maher: With respect to 31 and 33 Annie Drive, I would like to know if the developer has contacted these homeowners.

Mr. Whiteman: There were discussions, and I believe that my client was going to solve the warranty issues.

Councilman Maher: Has the developer contacted Mr. Dunn and Agnello? We had a meeting this over thirty days ago.

Mr. Agnello (31 Annie Drive): The superintendent looked at the problem and acknowledged that there was a water problem. My wall is still leaking.

Mr. Vincenti: Mr. Dunn understands that the problem is a warranty item and that the developer has attempted to fix the problem. As of today Mr. Wurbler has not contacted Mr. Dunn. I have acted as an intermediary.

Councilman Maher: Over thirty days has lapsed, and I thought that there would have been progress made. It appears nothing has been done. I want to see corrective action. Is the developer willing to testify what has been done?

Mr. Wurbler (developer): I found about Mr. Dunn's problem today. We are willing to take care of Mr. Agnello's problem by sending someone back to his home to address the problem.

Councilman Maher: I think he needs a new foundation - a new basement.

Mr. Wurbler: I think you are wrong.

Mr. Vincenti: I believe it is not our area to perform an inspection or to make any recommendations from a structural standpoint to recommend remedial work required to fix a leaking basement. I believe we should not be involved nor assume any liability for.

Councilman Maher: Mr. Agnello testified that someone drilled holes in his walls.

Mr. Wurbler: That is not uncommon; water becomes trapped in a foundation block for which holes are drilled and can be patched later. Therasealing the walls is another method of fixing the problem.

Councilman Maher: The memo indicates that as of this date the developer has not contacted the resident at 27 Annie Drive.

Mr. Whiteman: I spoke to Ms. Bran today about her concerns which happen to be home warranty items. Knowing that these are non-bondable items, my client offered to try to resolve her issues, but she rejected that. The applicant has done everything required under the statute with respect to the bondable items. The problems with these few property owners have been non-bondable issues. This has been carried on since July. My client wants to resolve these. Mr. Agnello's issues have been addressed, but they are non-bondable items. Nothing will ever satisfy Ms. Bran. My client has taken every reasonable step to satisfy the homeowners and the township. It only makes sense to release the bond and move on.

Councilman Maher: I am ready to throw my hands in the air.

Councilman Calogera: I ask that we inspect the public areas where there may be deficiencies.

Mr. Vincenti: Inspectors walked the entire area and reported back to me.

Ms. Bran (27 Annie Drive): This problem started three and one-half years ago. I have had the same issues for years. I was told that because I built a deck, I ruined the grading. I never saw anyone walk around my property. The board meetings drag on for a long time; residents leave before their issues are discussed. I want water to not come into my basement.

Mr. Choudry (20 Carrie Drive): I have a water problem in the basement and the land needs to be regraded. My house is very poorly built.

Mr. Woodcock (6 Carrie Drive): I confirm what you are hearing. Holes were drilled in the walls in my basement. Window wells fill up with rain water. The grading is poor; there is also extreme ponding.

Councilman Calogera: Is there a time limit within which we have to reduce or release the bond?

Attorney Ruggierio: The process is that the developer asks for a bond release. The township engineer has a statutory duty to write a report to the governing body with the status of the bonded improvements. Mr. Vincenti's analysis of the bonded improvements (not house related items with the exception of grading and seeding) is that they are sufficiently and appropriately installed. You have forty-five days from the date of the notice to act. In the past you have denied within the time limit. Maybe we had an agreement with the developer to come back after these mattes were addressed.

Councilman Calogera: Grading and seeding is covered under the bond?

Mr. Vincenti: There is no line item for seeding and grading; however, it is an item that is required as prior approval and one that we required be addressed properly.

Councilman Calogera: I would like to see seed sprout before I reduce this bond. I want to be sure that this project be done correctly.

Mr. Vincenti: Are you suggesting that the developer has a requirement to water lawns on private homes on a regular basis? The builder is required to get a certification that the soil has received a permanent form of stabilization according in the state standards. That does not mean that you will have a lush lawn. It means that all potential for soil erosion has been addressed properly with an adequate cover. Sidewalks and curbs have been repaired to our satisfaction. The punch list date back to 2001.

Councilwoman Panos: When this many people have that many problems with their basements, it makes me think that there is a problem with the drainage outside the homes. Doesn't that fall under the bond?

Mr. Vincenti: No, the purpose of the bond is to insure that the items that the town will take ownership and maintenance to are constructed properly, i.e., the roads, storm drainage utilities, the detention basins. We don't bond for the construction of homes.

Councilwoman Panos: Perhaps this was not graded properly to the storm drain and backs up into the yards.

Mr. Vincenti: I think there is a problem with the type of soil utilized and what type of soil used to backfill the basements and foundation. If clay is used the propensity for problems is greater than if you import good granular backfill material. No doing a detailed structural analysis (which is something we do not do), I cannot come to a conclusion as to why these basements are experiencing the leaking problems that are evident.

Councilman Greene: This is not an isolated problem. We have an obligation to the residents to help get this problem resolved. Punching holes in walls is a temporary solution. The developer should be put on notice that he should work more diligently with these residents. In my good conscience I cannot vote for this.

Councilman Redmond: Do we have building standards that require certain types of backfill?

Mr. Vincenti: Those standards are governed by BOCA (state building code standards).

Councilman Redmond: Can we be more stringent?

Mr. Vincenti: I believe that we cannot supersede BOCA.

Attorney Ruggierio: If you had sufficient scientific data on certain areas of the town (we have cases involving perched water) and could articulate that in an ordinance, it would probably be sustained because it is not a general condition. The whole idea of the adoption of the uniform code is so that the building is not confronted with conflicting codes going from one town to another which existed years ago. Any attempt to move in this area legislatively would have to have scientific studies preceding it.

Mr. Santamaria (8 Carrie Drive): My sump pump does not work properly because of the grading of my property.

Ms. Bran: I understand that we cannot hold the township responsible for the basement. Perhaps the homes were not inspected properly. The township owe the residents relief. If you keep approving these permits, there is something else running under these permits. Why does this man keep getting permits?

Councilman Calogera: If there is a problem with houses which under extreme hydrostatic pressure which may create problems with the foundations caving in, if there are unsafe conditions with ponding that cause a dangerous mosquito situation, if these house were to be reinspected because these residents felt their home was unsafe, at what point will the builder be responsible for the deficiencies?

Attorney Ruggierio: There is no question that when a builder installs defective building for any reason, that builder is not responsible in a legal sense to the people to whom he sold homes. The distinction that has to be recognized is that the township has a responsibility under the land use law to make sure that there is some guaranty that sidewalks, curbing and storm sewers and in some cases grading and other items that are listed in the land use law are specifically guaranteed by an insurance company bond or a cash bond so that once the builder starts construction that there is a level of security that the roads, curbs, storm sewers and detention ponds are going to be completed. These are bonded public improvements.

The reason for the council's angst is that residents of the township are complaining about legitimate happenings in their homes, but have nothing to do with the release of the bonds because these bonds don't cover the basement problems or any of the other issues here tonight. The only question before the council tonight is did this developer install the sidewalks, curbs, storm sewers and the other items listed on the bond. I realize that this is a disappointing statement for the members of the public and the council when they hear these complaints. Legally, it is not proper to deal with these house related items in connection with whether these bonded improvements have been installed. If you are satisfied that they have been installed, that is the end of it. There is a requirement in the land use law that the bonded items be enumerated. I assume that was done in this case. The construction of the houses and the complaints concerning basements is not what we are here to consider tonight.

Resident: Why has it taken it so long for the bond to be released?

Attorney Ruggierio: Perhaps thirty days before the July date there may have been an application.

Residents: I believe it has been more than one year.

Ms. Bran: The council made a commitment to visit the site.

President Butler: I promise that someone will be there between now and the end of the week. If I wanted to come, I will call you. Please leave your phone number with the Clerk.

Councilman Redmond: Do we require sump pumps?

Mr. Vincenti: We require sump pump connections to the storm drainage system for every house that has a basement.

Councilman Redmond: We only require the connection?

Mr. Vincenti: I believe the sump pump is also required.

Councilman Redmond: Who sets the standard for the sizing of the sump pump?

Mr. Vincenti: I am not sure.

Councilman Redmond: Please find out for me.

Mr. Whiteman: We are here for the release of the performance bond. On July 22 we came before the council on this issue. The engineer has testified that all bonded items have been satisfied according to engineering codes. Despite that the issues with respect to these homeowners are non-bondable items. Statutorily my client is entitled to the release, but this matter was carried on. In good faith my client addressed many of the non-bondable issues. The same issues are non-bondable. We can only control the developer to a certain level. My client has done everything he has to do pursuant to statute. This council is legally responsible to release the bond at this time, and it is demanded that the council vote on this.

Mayor Cannon: There is no question that you are correct, and I accept Mr. Ruggierio's analysis of this situation, but there is a problem here. Because of enforcement, we have not had this level of problem within the last few years. I don't know what we need to do to get the builder's attention. There seems to be a real problem, and I want to know why you, as the builder, are not addressing this.

Mr. Wurbler: Many of the problems that residents are experiencing with their basements are partially due to their own neglect and the failure to maintain their properties. Mr. Choudry complained about a wet basement. We have been back to his home about half dozen times; there is not wet basement problem in his house.

Motion

to table the release/reduction of the performance guarantee of Oxford Estates for thirty days made by Councilman Testino, seconded by Councilman Greene and so ordered on the following roll call vote:

AYES: Councilmen Baker, Calogera, Greene, Hoff, Redmond, Testino, Councilwoman Panos, President Butler.

NAYS: None.

ABSENT PODIUM: Councilman Hoff.

4. Developers of Cedar Ridge to show cause - default of performance guarantee for construction of recreation area.

Mr. Vincenti: The developer has posted a performance bond for recreational facilities which have not been constructed. We reached out to the developer in an attempt to have him resolve the issue in an affirmative fashion either by constructing the improvements or making a contribution. He denied the responsibility which was summarized in Mr. Heilbrunn's letter.

Attorney Ruggierio: This development received a preliminary subdivision approval in 1979. Final approval was given to certain sections; in 1988 Sections II, IV and VIII received final approval. As part of the approval resolution by the planning board in connection with that portion of the entire subdivision, the following language appeared in the resolution which accounts for the bond we are discussing: "Although the applicants preliminarily approved subdivision provides for the construction of a recreation package in Section V, that section is not yet the subject of final approval. Without the construction of the recreation package, the board finds that the subdivision taken as whole does not meet the requirements of Old Bridge Township Land Development Ordinance. Since the applicant is otherwise under no legal obligation to construction Section V of its development, the board finds it necessary in order to ensure the integrity of the subdivision as whole from a planning and zoning prospective, that assurances be made that the recreation package contained in Section V will ultimately be constructed. The applicant's attorney indicated that it is the applicant's intent to develop the entire portion of the subdivision lying on the westerly side of Morganville Road as one application. The section referred to by the applicant's attorney includes Section V in the recreation package. The applicant's attorney offered on behalf of the applicant to construct the recreation package on the westerly side of Morganville Road. The applicant's attorney also indicated that the applicant as a condition of the approval of the subject application is willing to bond the construction costs of the recreation package in Section V."

As we remember, this development then suffered under the interpretations of the Fresh Water Wetlands Protection Act that made the development as originally contemplated impossible. The Township acquired the lands that include this Section V where the recreation package was intended to go. We have a difficult situation because the homeowners who purchased homes in Sections II, IV, VI and VIII were protected by this language of this resolution that indicated that the recreation amenities would be constructed. I think that the developer's position on this is not reasonable, and on behalf of the township we are willing to speak to the developer about reaching a compromise on this issue. Given that this is apparently not forthcoming, I would think that it would be appropriate to hear from the developer's representative as to why these bonds should not be declared in default so that the benefit of the recreation package can be secured for the residents in Section II, IV, VI and VIII of Cedar Ridge.

Mr. Whiteman (Heilbrunn firm): This was a two phase project, the first phase being constructed on the easterly side of Morganville Road; the second phase was going to have a recreational facility along with residential. As per the 1989 approvals the recreational facilities would be completed at the beginning of Phase II. As the board knows, Phase I was constructed and pursuant to the standards of the Department of Community Affairs and state standards. The applicant submitted the applications, received a registration, submitted a public offering statement approved by the state as filed with the county, submitted to the property owners at the time of purchase. The public offering statement set forth that the recreational facilities will be constructed at the beginning of Phase II. It further disclosed the fact that the developer had no obligation to undertake the construction of Phase II pursuant to the public offering statement.

A good case is the Township of Rivervale vs. E&R Office Interiors 241NJ Supra 391:1990 wherein the developer received approvals a part of which was that he enter into a developer's agreement for improvements to benefit the community. The applicant proceeded to not develop the property. The township sued the applicant to have the obligations constructed pursuant to the developer's agreement. At that time the court held that the improvements as per the developer's agreement was subject to implied or constructive condition that such improvements are required only if the developer proceeded with the project. The developer chose not to proceed with the project. My client wanted to proceed with the project and was not able to. The council knows that the township took over the property via eminent domain, and my client did not have an opportunity to proceed in that respect.

The court in the Riverdale case ruled that it was not and should not be required for the applicant to proceed to install the improvements because the applicant was not getting the benefit of the approvals, it did not have to suffer the detriments as well. The case at hand is still stronger because my client did not have the opportunity because the township acquired the property. The township owns this property on which the improvements are constructed. It is not reasonable and it unjust for the township to ask my client to install these facilities where the township owns this property and did not permit my client to proceed with its application for construction. I ask this council to reconsider its decision to call upon the bond in this matter.

Councilwoman Panos: Does the attorney recommend that we default?

Attorney Ruggierio: I believe that the developer's bond should be defaulted.

Motion

to default on the performance guarantee of the construction of a recreational area by the developers on Cedar Ridge moved by Councilwoman Panos, seconded by Councilman Maher and so ordered on the following roll call vote:

AYES: Councilmen Baker, Maher, Testino, Councilwoman Panos, President Butler.

NAYS: None.

ABSENT PODIUM: Councilmen Calogera, Greene, Hoff, Redmond.

Ordinance for Second Reading - Held for until September 17, 2002.

Township of Old Bridge
Ordinance No. 41-02

ORDINANCE AMENDING OLD BRIDGE LAND DEVELOPMENT ORDINANCE SECTION 4-3(M) REGARDING NOTICE OF DEVELOPMENT APPLICATION

Ordinance for Second Reading.

TOWNSHIP OF OLD BRIDGE
Ordinance No. 42-02

AN ORDINANCE OF THE TOWNSHIP OF OLD BRIDGE AMENDING SECTION 5-13 OF THE CODE OF
THE TOWNSHIP OF OLD BRIDGE GOVERNING TOWING AND WRECKERS

BE IT ORDAINED by the Township Council of the Township of Old Bridge, County of Middlesex, State of New Jersey, as follows:

SECTION 1: PURPOSE

The purpose of this Ordinance is to provide standards, regulations and rates for all police requested towing and roadside repair services on roadways within the Township of Old Bridge. Police requested services shall be rotated among licensees and provided under the supervision of the Police Department of the Township of Old Bridge.

SECTION 2: AMENDMENT BY SUBSTITUTION OF CODE SECTION 5-13

Section 5-13 of the Code of the Township of Old Bridge is hereby deleted and a new Section 5-13 shall be substituted therefore, which shall read as follows:

5-13 Definitions

As used in this section, the following terms shall have the meanings indicated:

BASIC TOWING SERVICE - Means the removal and transportation of a vehicle from a highway, street or other public or private road, or a parking area, or from a storage facility, and other services normally incident thereto.

CATEGORY I VEHICLE - All vehicles 0 to 10,000 pounds gross vehicle weight.

CATEGORY II VEHICLE - All vehicles over 10,000 pounds gross vehicle weight.

CRUISING - The operation of an unengaged tow truck along the public streets in any fashion intended or calculated to solicit business.

GROSS VEHICLE WEIGHT - The registration weight, the manufacturer's gross vehicle weight rating or actual weight.

EMPLOYEE - any person employed by a licensee to operate a wrecker.

WRECKER - A vehicle used to tow or remove other vehicles usually so damaged or disabled that they cannot proceed under their own power. Class I wreckers are capable of towing or removing a category I vehicle and class II wreckers are capable of removing or towing a category II vehicle.

5-13.2 License

A license shall be required to perform police requested towing and roadside repair services on roadways within the Township of Old Bridge. Any person or entity wishing to obtain a license pursuant to this ordinance shall submit a license application to the Township Clerk.

5-13.3 Term of License

Licenses shall be issued by the Township Clerk. Each license shall be issued for a maximum term of one (1) year and shall terminate on January 1st of the year following its issuance.

5-13.4 License Fee

A. A fee of $100.00 shall be paid annually by license applicants in order to obtain a license.

B. License applicants shall be charged a prorated license fee for a license issued for a partial license term.

C. License fees shall be non-refundable for any reason.

5-13.5 Requirements for Licenses

No person or entity shall be eligible for the issuance of a license unless the following requirements are fulfilled:

A. All towing equipment utilized by applicants shall be in compliance with state, federal and local laws.

B. Applicants shall have the following minimum equipment:

(1) One (1) wrecker capable of removing any category I vehicle.

(2) Safety equipment to be carried on all trucks shall include: A universal towing sling, except flatbeds; J-hooks and chains; one (1) snatch block for three-eights to one-half-inch cable, two (2) high-test safety chains; auxiliary safety light kit to place on rear of towed vehicle; four-lamp or three-lamp revolving amber light or lamp bars of at least five hundred (500) candle power pointed to the rear, mounted so as not to be obstructed by the towed vehicle(s) and said lights must be engaged during the removal of the vehicle(s); at least three flares or other suitable warning devices visible for a distance of not less than one thousand (1,000) feet from the disabled vehicle(s); toolbox with assortment of hand tools; rear working lights and rear marker lights; cab lights; body-clearing lights located to clear towed vehicle; blocking choke for wrecker while working safety cones; shovels and broom; steering wheel lock or tie-down; and, and an operational fire extinguisher designed for vehicular fires which must be 25 lb. BC dry chemical; and 5 gallons of absorbent granules for cleaning up fluid spills.

(3) All wreckers must be properly and permanently lettered on both sides according to title 39 of the motor vehicle code of New Jersey.

License applicants shall submit a detailed list of all wreckers and service vehicles, as well as supplemental/auxiliary equipment owned or leased which will be used in performance of this chapter. A copy of the vehicle registration, amber light permit(s), certificate of insurance for vehicles and property, insurance cards and leases must also be provided with the list. The list must contain the following information: type of vehicle, year/make, capacity and condition of the vehicle.
License applicants shall demonstrate that they maintain a storage facility properly zoned for such use. Each license applicant must have an outdoor storage area large enough to accommodate at least ten (10) class I vehicles. Each license applicant may have an indoor, secured storage area sufficient to house at least two (2) vehicles and provide twenty-four (24) hour security for the same for the storing of impounded vehicles involved in criminal matters.

E. License applicants maintain the following insurance:

(a) A garage keeper's liability policy covering fire, theft and explosion in the minimum amount of sixty thousand ($60,000) dollars.

(b) A garage liability policy covering the operation of the licensee's equipment or vehicles for amount of three hundred thousand ($300,000) dollars for any one (1) than (1) person killed or injured in any one accident; and one hundred thousand ($100,000) dollars for all property damage from one (1) accident.

(c) Automobile Liability Insurance in an amount of not less than one million ($1,000,000.00) combined single limit for bodily injury and property damage liability.

(d) Workers' Compensation Insurance insuring the obligation of the wrecker operator under the New Jersey Workers' Compensation and Occupational Disease Laws.

Insurance policies shall provide collision coverage for vehicles in tow.

F. License applicants shall submit the following for the applicant and all employees: name, address, date of birth, social security number, photocopies of all New Jersey Driver's Licenses (including commercial drivers licenses), signature, name and address of an individual to contact in case of emergency. The Old Bridge Police Department shall conduct background investigations of all license applicants and their employees. Any person with a criminal record will not be allowed to perform police department towing and service and/or be issued a license.

5-13.5 Licensee Standards of Conduct and Performance

All licensees shall comply with the following requirements of conduct and performance:

(1) Signs in view of the public shall be posted at storage facilities which contain the licensee's license number, business name, phone number, hours of operation and towing fee schedule as outlined in this ordinance in its entirety. Such signs shall be at least 2' x 2' in size.

(2) Outdoor storage areas must be able to be entirely lit from dusk through dawn and must be entirely enclosed and secured by a sturdy fence at least eight (8) feet in height, unless any statute or regulation requires otherwise. Storage areas shall be kept clean so as to be reasonably accommodating to persons who may come upon said premises.

(3) Licensees shall not store towed vehicles on top of one another, shall not park any said vehicles on public roadways or sidewalks, nor shall licensees block any public roadways or sidewalks with towed vehicles.

(4) Employees of licensees must be registered with the Old Bridge Police Department prior to performing any services for licensees. Information on employees shall be updated every ninety (90) days in order to keep current with changes in personnel.

(5) Licensees and/or their employees must possess a valid New Jersey driver's license.

(6) Licensees and/or their employees shall be fully trained and knowledgeable in the operation of all required equipment.

(7) Licensees and/or their employees must be equipped with and trained in the basic tools necessary to perform minor roadside repairs.

(8) Licensees and/or their employees must be equipped with and trained in the necessary tools and equipment to perform all facets of the safe and efficient removal of all types of motor vehicles under this chapter regardless of the physical condition of the vehicle.

(9) Licensees are responsible for the removal of all debris from an accident scene, which includes sweeping the roadway. Licensees and/or their employees must be equipped with and trained in the necessary equipment needed to completely remove, and must remove, all non-hazardous debris from the scene of the accident. Debris must be placed in a container or bag Any minor fluid spills will be picked up by the wrecker operator and may be put out in the regular trash after (24) twenty-four hours.

(10) Licensees and their employees must wear orange reflective safety vests when engaged in the towing or repair of motor vehicles while on public roadways.

(11) Licensees and their employees must follow the directions of law enforcement personnel.

(12) Licensees and their employees are expected to always act in a professional manner and at all times to be courteous and respectful towards members of the public. Licensees and their employees shall not represent to any member of the public that they are an employees of the Township of Old Bridge.

(13) Licensees shall not engage in cruising.

(14) Licensees shall be responsible for all vehicles and contents in their custody that were towed off the roadway under the direction of the police.

(15) Licensees and their employees shall preserve evidence needed for potential criminal and civil cases at the direction of law enforcement personnel. Vehicles involved in criminal matters which are impounded and stored in a licensee's storage area shall not be removed from such storage area until written permission is obtained from the Old Bridge Police Department.

(16) Licensees shall notify the Old Bridge Police Department on a monthly basis, if they are in custody of any unclaimed vehicles. The Police Department will file for titles of abandoned motor vehicles left on a licensee's premises. Any licensee failing to notify the Old Bridge Police Department within thirty (30) days that a vehicle has been abandoned shall forfeit storage fees for any days in excess of thirty (30) days such vehicle is stored.

(17) Licensees and their employees shall cooperate with other licensees and their drivers in the case of emergency services at the scene of the accidents and/or disasters.

(18) Licensees will dispatch, within the time permitted by this ordinance, wreckers when requested by the desk officer, to respond to a police request for service.

(19) Wreckers shall be maintained and operated in a safe and prudent manner and in accordance with all existing traffic regulations.

(20) Licensees shall maintain an accurate file of all vehicles towed. Such files shall be maintained for three (3) years.

(21) Licensees must maintain an accurate inventory of all towed vehicles stored in their impound sites.

(22) Licensees must maintain a record of all property found anywhere in a towed vehicle, including trunk and glove compartment, if open. If a key is available, they shall be responsible for the safeguard and release of the contents to the owner.

(23) Authorized representatives of the Old Bridge Police Department or their designees shall have access to any of the records required to be kept by licensees.

(24) Licensees, upon receiving a vehicle and ownership information relating thereto, shall immediately contact the owner of the vehicle by telephone and/or in writing, and within forty-eight (48) hours to inform the owner that:

The licensee is in possession of the vehicle;

The costs the owner has incurred;

The procedure for obtaining a release of the vehicle;

The consequences for failure to retrieve the vehicle within the proper time frame.

(25) Licensees must maintain accurate records of owner notifications and attempted notifications.

(26) Licensees must not release any impounded vehicle from an impound site unless it is authorized by the Old Bridge Police Department.

(27) Licensees must follow the proper procedures and directions of all applicable laws for the disposal of vehicles not retrieved by the owner. Any vehicles which are