An Agenda Meeting of the Township Council of the Township of Old Bridge was held on Monday, September 15, 2003 at 6:30 p.m., in the Municipal Complex. The meeting was called to order by President Butler who asked all present to participate in a salute to the flag followed by a short prayer.

Deputy Clerk Ward announced that the meeting was being held in conformance with the open public meetings act, notice has been given to the newspaper and notice of the meeting has been posted in public places. The next meeting will be September 22, 2003 at 8:00 p.m..

Roll call at 6:30 p.m. by Deputy Clerk Ward showed the following members present:

Councilmen Baker, Calogera, Redmond, Councilwoman Panos, President Butler. Councilman Testino arrived at 6:55 p.m., Councilman Maher arrived at 7:45 p.m.. Councilmen Hoff and Greene were absent.

Hearing
Breakfast Club

Attorney Ruggierio: We are in the middle of a hearing at the local level concerning the question of whether or not the liquor license for Breakfast Club should be renewed. At the present time the renewal has been allowed by the ABC on a temporary basis, which the applicant applies for periodically while the application is pending. When we were here last time you heard some evidence from Mr. Serdinsky who talked about the background of the application and what experiences he had with the site. At the time we left off, Mr. Segreto, the attorney for the applicant was cross examining Mr. Serdinsky and I assume Mr. Segreto would like to pick-up with the cross examination.

Mr. Segreto: The transcript of the meeting indicates that we were not completed with our cross examination. I will not be lengthy, but I do have some further questions. With respect to the application, I want to have marked as “Applicant #1”, for identification the floor plan prepared by our architect, dated 2/23/03. Mr. Serdinsky, do you have a copy of that particular plan and does it accurately depict the number of tables and seats in the premises.

Mr. Serdinsky: No, it does not accurately depict what was submitted for approval dated June 16th, and the basis for which you got your zoning permit.

Mr. Segreto: My question is does this plan exhibit accurately reflect the existing conditions in the premises in terms of the number of tables and chairs?

Mr. Serdinsky: No.

Mr. Segreto: How many are in there now and when was the last time you were there?

Mr. Serdinsky: I was not there. Mr. Vincenti advised me that there are twelve tables there.

Mr. Segreto: You have not been there yourself?

Mr. Serdinsky: No, I have not.

Mr. Segreto: The floor plan prepared by Mr. Mileto, indicates how many seats?

Mr. Serdinsky: It shows twelve tables with four chairs and it does not show any bar seats.

Mr. Segreto: Does it show bar seats?

Mr. Serdinsky: None are showing.

Mr. Segreto: Doesn't that mean that there are none if none are indicated?

Mr. Serdinsky: The plan I have before me is not the plan you submitted for zoning permit for your architecturals.

Mr. Segreto: Well how about the plan we submitted as to what we proposed to have in the licensed premises, is that what this is?

Mr. Serdinsky: No.

Mr. Segreto: Have you seen whether or not we have filed this plan with the board?

Mr. Serdinsky: The big plan is the one that was submitted and approved. It indicates all the seats on the dance floor and the date on the plan is June 16, 2003. The map that you have here tonight I have never seen before September 11, 2003.

Mr. Segreto: When was the last time you were in the licensed premises?

Mr. Serdinsky: I have not been there personally in over a year. John Amabile, of our office, at the request of Mr. Vincenti, has been there.

Mr. Segreto: I am not interested in what someone else knows about this matter, I am only interested in what you know. With respect to the floor plan of June 23, 2003, do you know whether or not the number of seats shown is the basis for determining the number of required off street parking spaces?

Councilman Calogera: For clarification, the June 23, 2003 plan, is this prior to or after the fact that they were in violation of our zoning codes?

Mr. Segreto: I am not sure that they ever were in violation of the zoning codes. I am familiar with the testimony of this witness and he has indicated that he did not issue any citations against them because in his words, “they had not violated the zoning ordinance”.

Councilman Calogera: We are looking at a plan that was submitted after the fact.

Attorney Ruggierio: With all due respect, I would like to see this proceed so that the witness can be done with and then at some point you can make a decision on this matter. I understand why you may be confused about the relevancy question and I will try to give you a neutral understanding of what the sequence of events are. The plan marked as OB#1 (big plan) is the one that was submitted to the zoning officer for a permit and it is the plan upon which the permit was issued. The document which is Applicant #1, the floor plan that Mr. Segreto is referring to is the one that has more recently produced and it reflects what is actually there at this time, and it was produced after the issuing of the zoning permit. I hope that gives you the sequence. Mr. Serdinsky issued the zoning permit based on the OB#1 plan and whatever questions Mr. Segreto is asking about Applicant #1 (little plan) he will make clear in his questioning. In terms of sequence, I believe we are in agreement as to the chronology.

Mr. Segreto: If I can just ask a few more questions of the witness, then the Council can ask their questions. Mr. Serdinsky, with regard to Applicant Plan #1, dated June 23, 2003, can you tell me based on your understanding of the zoning ordinance of this municipality, for the number of seats indicated on this plan, how many off street parking spaces are required?

Mr. Serdinsky: There are 64 seats shown at tables.

Councilman Calogera: I have to ask is this floor plan Applicant #1, been submitted to our zoning board for amendment?

Attorney Ruggierio: I understand your question, I am just trying to let Mr. Segreto develop his case. I also know from my discussion with the code officials that in order to effectuate this plan, called Applicant #1, that is their position that an application for a site plan modification is required. The question is how can the Council approve something that has not gone to that review, I don't know the answer to that and it is up to Mr. Segreto to give us these answers.

Councilman Calogera: I just want to make it clear that this is not an approved schematic and has not gone to any boards and is something the applicant would like done.

Attorney Ruggierio: I believe that is correct, but you have to operate on the evidence that is produced here and it is my understanding that our engineering and code enforcement departments feel a site plan approval from the planning board is required to make this modification.

Councilman Calogera: Mr. Serdinsky, the only plan that is approved is OB#1, correct?

Mr. Serdinsky: Yes.

Mr. Segreto: You acknowledge that you received this plan from us with a request for a zoning approval. Have you make any determinations as to whether or not this particular plan violates the municipal zoning ordinance or if it violates the uniform construction code?

Mr. Serdinsky: Not to my knowledge.

Mr. Segreto: If the number of seats which this applicant asked to be approved is the number that is there and will be there, how many parking spaces are required under the ordinance?

Mr. Serdinsky: Just the seats at the tables equates to 32 parking spaces.

Mr. Segreto: How many spaces do we have?

Mr. Serdinsky: You have 67 spaces.

Mr. Segreto: If this is the plan we are asking to have approved in the license renewal, then we don’t need a variance?

Mr. Serdinsky: That is not my opinion. We did not talk about dance hall vs. restaurants, that is a different application.

Mr. Segreto: Do you agree, that if we have 67 parking spaces, we are more than in compliance?

Mr. Serdinsky: If you were a restaurant I would agree, but you are not, you are a dance hall and that is a different venue.

Mr. Segreto: Do you know what the definition of a restaurant is in your ordinance?

Mr. Serdinsky: The common definition is a place where food is served.

Mr. Segreto: Do we have a place where food is served? Does our kitchen meet the definition of a restaurant?

Mr. Serdinsky: We have been through that and we have talked about your marginal kitchen.

Mr. Segreto: Don't you agree that our kitchen meets the definition of the ordinance for a kitchen and therefore we are a restaurant?

Mr. Serdinsky: I guess so.

Mr. Segreto: Then we are a restaurant with a bar and under the standard, we do not violate the parking standards.

Mr. Serdinsky: What is this thing in the middle of your plan called, a dance floor?

Mr. Segreto: Is there something in your parking regulations, which says that the number of parking spaces depends on how many people dance on the floor?

Mr. Serdinsky: I would have to say no?

Mr. Segreto: Does it say anything about the number of parking spaces being related to the number of occupants?

Mr. Serdinsky: That is my interpretation. If we have nine hundred occupants proposed, we better have some type of parking at a 1-2 ratio.

Mr. Segreto: You have to respect the fact that I have questions and you ought to try and answer the question. I said to you can you identify any section of the zoning ordinance of this municipality that says that in order to determine the number of required off street parking spaces, that you have to consider and count the number of occupants?

Mr. Serdinsky: We have been through that and I told you that is in Section 11-1 of our ordinance, whereas if you are changing your venue it has to go back to the board for approval, at which time a site plan is engaged.

Mr. Segreto: Are you a licensed planner and are you familiar with the requirements of the municipal land use law as to when a site plan application is required?

Mr. Serdinsky: I am not a licensed planner but I am familiar with the requirements of the land use laws.

Mr. Segreto: Are we changing the exterior configuration of this building, are we increasing the square footage of this building?

Mr. Serdinsky: No, you are changing the use.

Mr. Segreto: What was here before us?

Mr. Serdinsky: A restaurant with entertainment.

Mr. Segreto: We have a restaurant with entertainment and a bar, what is the change of use?

Mr. Serdinsky: The big dance floor and the less tables.

Mr. Segreto: Are you familiar with the license granted by the governing body for 1998/1999 to Sal Joper Corporation and did it have any restrictions?

Mr. Serdinsky: No. I am not familiar with this.

Mr. Segreto: Are you familiar with Resolution #177 of this governing body, involving Mickey McGuire's /Sal Joper, which is an approval for a retail consumption license to Sal Joper trading as Mickey McGuires? How about Resolution #260 in which the governing body of this municipality on May 29, 2002 granted a transfer from Nancy Issacson, trustee t/a Mickey McGuires to New Jersey Wine & Sprits, Inc., are you familiar with that one?

Mr. Serdinsky: I am.

Mr. Segreto: Did that have any conditions on it?

Mr. Serdinsky: Not that I recall.

Mr. Segreto: Well as a matter of fact, maybe this will refresh your recollection, the resolution has a condition indicating that no “go-go” dancing be allowed. We do not have go-go dancing at our facility, so we do not violate that condition of the transfer into us, correct?

Mr. Serdinsky: Correct.

Mr. Segreto: Are you familiar with Resolution #382 granting a renewal of the license #1209-33-025-003 to New Jersey Wines & Spirits, Inc. for the period of 2002 to 2003?

Mr. Serdinsky: No.

Mr. Segreto: That is the license that is in effect right now and that has no conditions on it, correct?

Attorney Ruggierio: Mr. Segreto, he is not familiar with the resolution and he cannot affirm what is in the resolution since he is not familiar with it.

Mr. Segreto: Are you familiar with license #1209-33-025-003 issued by this governing body to my client New Jersey Wines & Spirits, Inc. for the 2002/2003, dated March 18, 2003?

Mr. Serdinsky: Are you familiar with the site plan that we approved OB#1, because I have not seen acknowledgement of that yet.

Mr. Segreto: You have to try the best you can to answer my questions because you are under oath. I take it that you do not know that the existing license that was issued on March 18, 2003 has any conditions on it? Also, we gave notice of change of stockholder ownership in New Jersey Wines & Spirits, Inc., and we published it in the newspaper on February 13, 2003.

Mr. Serdinsky: No, I do not know about conditions, but I am familiar with the corporate change.

Mr. Segreto: How long have you been the zoning officer?

Mr. Serdinsky: 10 years and 3 months.

Mr. Segreto: In that time, do you know of any conditions that were attached to the licensed premises in giving their approvals?

Mr. Serdinsky: In 1988, Mr. Goldy endorsed a request for a site plan waiver to Kahr's Enterprises t/a Fritzy's for the expansion of the building and it was granted and the parking spaces were adequate to the township engineer at the time in the amount of 201 occupants.

Mr. Segreto: Is the number of parking spaces the same as now and was the zoning ordinance the same as now?

Mr. Serdinsky: Yes.

Mr. Segreto: All of the approvals given by this governing body have been for the configuration as the building exists and approved ten years ago, correct?

Mr. Serdinsky: Only relative to seats.

Mr. Segreto: In this particular application, is there anything that we want to expand the building and is our use a permitted use?

Mr. Serdinsky: It is not a permitted use.

Mr. Segreto: So you are telling me for all of these years, the restaurant/bar has been permitted in violation of the zoning ordinance?

Mr. Serdinsky: I am not saying that at all. I am saying that I deem your use as a dance hall not as a restaurant with a bar.

Mr. Segreto: What is a dance hall?

Mr. Serdinsky: A dance hall is where people go to dance; dance is the main function. In a restaurant, food is the main function.

Mr. Segreto: Is there a definition in the ordinance for a dance hall.

Mr. Serdinsky: In the state codes there is.

Mr. Segreto: I am asking about the ordinance.

Mr. Serdinsky: Our ordinance reflects to this book and incorporates this book and Mr. Vincenti found this for me the other day. I don't know the exact page but it makes reference to the codes and use grid. Dance halls are use #7396 and CN Zone is not a permitted use.

Mr. Segreto: You stated your ordinance makes reference to that manual and incorporates it, correct? I would like you to turn to your ordinance on page 2-1, that deals with definitions, and where it states that when certain words and phrases and are not defined in Article 2, there meaning shall be as defined in NJSA 40:55D-1 et seq. First of all, the phrase dance hall, is that defined in your ordinance or is it defined in the municipal land use law.

Mr. Serdinsky: I am not a land use lawyer.

Councilman Redmond: I think that we should postpone this until we get our planner here.

Mr. Segreto: Have you reviewed the transcript of your testimony of June 23, 2003?

Mr. Serdinsky: I did not know it existed.

Councilman Calogera: Do we have a copy of this transcript and has it been forwarded to Mr. Serdinsky so he can review it and answer Mr. Segreto?

Mr. Segreto: It is not necessary, he has stated that he remembers testifying on that date.

Attorney Ruggierio: The answer to Councilman Calogera's question is no.

Mr. Segreto: Is there any testimony that you gave on June 23, 2003 that you want to change this evening or do you stand by what you said under oath at that time?

Mr. Serdinsky: I would like to stand on it.

Mr. Segreto: I have no further questions of this witness.

Attorney Ruggierio: Mr. Serdinsky, I know that you stated that you have not been to the facility this year so any information that you have about what might or might not be going on there is information that you received from other people, correct?

Mr. Serdinsky: Mr. Vincenti asked me if I would visit the site and when I did it was closed, it was a Thursday evening. It was suggested that I visit on a weekend night, but since I live in Toms River it is difficult for me so he suggested that another official who lives in town could go and John Amabile visited the site and he witnessed that the table configuration that I approved was not the one that was implemented.

Mr. Segreto: This is hearsay.

Attorney Ruggierio: I know you have an objection and the Council will take that into account. The question I have is the #OB-1 plan, that is the plan upon which the zoning permit is currently issued, correct?

Mr. Serdinsky: Yes.

Attorney Ruggierio: With respect to the Applicant Plan #1, that is a configuration that is being proposed by the applicant for a current approval and in your opinion in order to effectuate that floor plan, does the applicant have to go to either the zoning board or planning board or both?

Mr. Serdinsky: Yes. They radically redid their plan and submitted to me with correspondence and I responded immediately. The submitted plan reverted to the original plan because the previous plan was denied as its use was a dance hall. The revised seating was for 200 occupants and the parking was sufficient and the plan was a permitted use. The date of this letter was November 19, 2002.

Attorney Ruggierio: Let me clarify this. There was a plan originally submitted to you, which you rejected as being a dance hall. Then the applicant radically revised the plan and resubmitted it to you and that revision is referenced as OB#1. That was compliant with the zoning ordinances because it was essentially the same use that had existed there before when McGuires had a restaurant. Currently, on June 23, 2003, there is a new plan Applicant #1 and that is what has been submitted to you and it is your understanding that it is being submitted for some type of zoning permit, correct?

Mr. Serdinsky: It was for the seating arrangement and a zoning request for valet parking.

Attorney Ruggierio: With respect to the new plan, Applicant #1, have you made a judgment as to whether or not a site plan approval or a use variance is required in order to effectuate that plan?

Mr. Serdinsky: Yes, I have. On September 11, 2003, I responded that my first observation was the valet parking invoked some concerns and had to go to the planning board for approval because of the changes. My secondary observations were that the floor plan and occupancy request on the dance floor had deviated from what I had approved and I advised him that he needed to get a zoning board of adjustment use variance for a dance hall, because that is what he had and at the very least he needed the planning board or the zoning board to review and consider the valet parking request because the parking changes were significant.

Attorney Ruggierio: You are not a planner, but as the zoning officer is your decision on these matters final and absolute and what happens if you are not.

Mr. Serdinsky: No, my decisions are not final; the applicant has the right to appeal. On October 28, 2002, I told them that the issues could not be ignored and they exceeded my authority as the zoning officer and that they could bring the matter to the board for site plan approval or variance changes. They did send me a letter indicating that they would seek an appeal as noted in their letter of November 5, 2002.

Attorney Ruggierio: This was early in the application process correct? In bringing it up to date currently with respect to Applicant #1, if the applicant is dissatisfied with your decision they have the ability to appeal to the zoning board of adjustment for a determination. With regard to OB#1, that is the plan upon which the permit was issued. Is there any question in your mind that the applicant is not in conformance with that plan in terms of the way they are operating today?

Mr. Serdinsky: There is no doubt in my mind.

Mr. Segreto: Have you issued a decision on the present plan June 23, 2003?

Mr. Serdinsky: Yes I can, when I responded in my letter dated September 11, 2003 to Mr. Bruins of your office.

Mr. Segreto: Did you get a copy of a Notice of Appeal that we filed regarding your decision?

Mr. Serdinsky: No. I did not.

Mr. Segreto: Do you contend that with this configuration of June 23, 2003 we need a use variance?

Councilman Baker: Mr. President, I believe their time is up, we have people in the lobby waiting for the meeting to start.

Councilman Calogera: I would like to address some issues. This has been going on and has been postponed several times and I believe the applicant is operating under the license at this time, so I think this is something I would like to address.

Councilman Baker: In all due respect to Mr. Calogera, we have a schedule, there are people outside and we have another meeting starting and I suggest that we go with our plan.

Attorney Ruggierio: I think it is the applicant's ambition to try and finish this hearing as soon as possible. It is my hope that we move forward and get this done so Council can make a judgment on this whether you renew this license with or without conditions or deny the renewal. All of these things are not in your hands right now until you finish the essential process.

Councilman Testino: How much time do you think we need to complete it?

Mr. Segreto: I want to put our planner/architect on the stand.

Councilman Redmond: This business of planners and architects, this is not the venue for this Council, it is a planning and zoning issue. If your zoning application were approved and then someone decided to appeal it, we would be the hearing board for that appeal. Other than that we have no need for planners to be testifying here. Our zoning officer has indicated that this has to go before the zoning board and I would ask that we deny at this point.

Councilman Testino: Can we get the answer to my question as to how much time is needed by the applicant to present his case? We are only scheduled for this hearing till 7:30p.m. and if we have to move it to the end of the meeting to complete it then we should.

Attorney Ruggierio: This is a legitimate question that should be addressed and I do want to tell the Council to allow this applicant to go through and present their evidence so that you can make a reasoned judgment about these issues. I would also like to say that I am inclined to agree with Mr. Redmond that the question of whether or not the zoning officer was correct or incorrect about his determination is not a judgment that this Council can make. Typically what happens is when some applicant comes in to receive approval for a liquor license they have already gotten their planning and zoning approvals in place. They get their construction permits and we know in advance what they are going to do. The problem here seems to be that this operation, without an approval by the Township Council, in fact I would say that in the face of a rejection of a person-to-person transfer, has undertaken an operation. There is no question that there will be any contest that OB#1, the plan presented and received the zoning permit is not the plan that is presently in place if you do go to the facility now. So unless they tell us they intend to operate under those conditions of the existing permit, it would seem that they need to have some type of approval and they could be seen to be in violation of the existing zoning. I think it is a good question as to how much longer we should go, but I do want to caution the Council that we do not want to be precipitous about this because there will be a whole level of hearings at the ABC level. I will say to you that you are not required for due process purposes to give the same level of attention to rules of evidence because you are a legislative body making a judgment about this and ultimately all those procedural protections will exist at the ABC level, but we have to be fair with the applicant and at this point the applicant says they are going to present evidence. If we find it is not relevant because it should be before the zoning board we can strike it and find it to be so, but I would not summarily decide not to hear their case.

Councilman Testino: I am suggesting that we get an answer as to how much more time he needs and if it is longer than 15 minutes, move them to the back of the meeting and continue the agenda meeting and then we will come back to this matter.

Mr. Segreto: I will need about twenty-five minutes for my witness.

MOTION

Motion made by Councilman Calogera to move the remainder of the hearing to the end of the meeting, seconded by Councilman Testino and so moved on the following roll call vote:

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

NAYS: None.

ABSENT PODIUM: Councilman Baker

ABSENT: Councilmen Greene, Hoff

Ordinances for Second Reading

Ord. #46-03 Motor Driven Vehicles – Motorized Scooters

Move-up

Councilman Redmond: These things are already illegal why are we passing an ordinance?

Chief Collow: My answer to this would be is that if you are looking at a Title 39, which is our motor vehicle statute, does cover the specifics for operating the vehicles on the roadway. However, we are referring to the small go-ped type vehicles, the small motorized scooters, we as the police department are exercising a lot of discretion on this type of issue, again we are dealing with young children and issuing them summons, bringing them into court, we really don't want to do this and an ordinance of this type would give us another alternative in handling these situations.

Councilman Redmond: So if we pass this ordinance, does it supercede Title 39?

Chief Collow: No, it just gives us another option.

Councilman Redmond: The ordinance calls for confiscating these scooters and is there a procedure by which the parents who pay for these things can get them back?

Chief Collow: There would be a specific time as to how long the impound would be and the parents in order to resecure that vehicle would have to satisfy the impound fee as well as any motor vehicles citations or in this case ordinance fines that they may have to recover their property.

Councilman Redmond: The reason I am asking this is because a lot of these kids are 11 or 12 years old. If you give them a summons under the new driving laws, this is serious stuff. That is what I am afraid of a youngster ruining his chances to drive at age 17.

Chief Collow: The ordinance would not reflect on that license in the future.

Councilman Testino: East Brunswick has this same ordinance in place and I think there were some problems with roadways that are owned by associations and no Title 39 applicability there. With this ordinance in place that would take care of situations like that.

Chief Collow: That is correct, the ordinance is an option.

Councilman Calogera: Chief, are you in favor of this ordinance?

Chief Collow: Yes, I am.

Discussion:

D-6 Library Lighting

Steve Goldman: I am the president of the Old Bridge Library. With me this evening is Margie Cyr, the Director and Mr. Barone the architect. The Council some time ago was kind enough to approve funding for the replacement of the majority of the lighting in the library. When we went to bid there was a major problem.

Margie Cyr: When the project went out to bid in March 2003, the low bid came in at $289,000 and the high bid was $699,950. The low bid was 45% higher than the estimated budget and that was what the Council had approved at $200,000.00. So the project is on hold because we have a difference of $150,000.00 between what the Council approved and what we believe what the projected budget will be.

Mr. Barone: I must say that I am a little befuddled based on the numbers that came back on this bid. We received such a wide range of bids; we have seven bidders and they were all over the park, which is not a good way to have a project go. We found one difficulty on our side of the table and the other was just an unknown factor. Our problem was that we were given incorrect information from our consultants on the costs of the lighting fixtures themselves. The second difficulty was due to the labor issue. The cost of labor, from the time that the original budgets were put together, to the time that we bid the project, the labor costs had gone up and the unknown factor of rewiring the entire library in order to accommodate these lights. Most of the contractors indicated that the cost of the fixtures came in higher than anticipated. However, the unknowns of all the wiring is the real cost factor. We made it so they would rip out the wiring attached to the fixtures and provide new wiring, this gave them an open caveat to put in whatever price they felt was labor intense. We have gone back and evaluated the fixtures and brought in another company and feel that we can bring down the cost of the fixtures so we have a handle on that. We have tried to get a mark by working with these contractors to try and get the numbers so that a proper job can be done for the library. We feel this project could be done for approximately $350,000.00. That is more than what we started out with. Once again, I will have to say in true assessment of this project that I understand come January, there will be another labor rate increase for the electricians.

Councilman Redmond: You say you spoke to vendors and you might be able to get a better price on the fixtures, are you redoing the specs to indicate a cheaper fixture?

Mr. Barone: We are going back and plugging any holes that might have been in the bid so that we can get a better picture and supplementing the specs and drawings in order to tighten up the price. It is a different fixture that will give us the same lighting, it is just a different manufacturer.

Councilman Redmond: So what do you need from us? Are you looking to increase the bonding?

Margie Cyr: You gave us $200,000 and the projected budget is $350,000. The State is making available a grant called the Statewide Livable Communities Grant, and the purpose of the grant is to upgrade municipal public libraries. This grant provides a maximum of $75,000 and we have submitted an application for that grant and Assemblyman Thompson has written a letter of support for that grant and I believe administration has also written a letter of support. Notice of the grant will not be received until the end of December and if we are going to follow Mr. Barone's calendar, we probably need to get the project out before that time.

Councilwoman Panos: So you're asking for an additional $150,000 and if you get the grant you will be able to give back $75,000?

Margie Cyr: Correct.

Steve Goldman: The dilemma that we have is that the $75,000 grant is not a guarantee. We have done everything to try and get the grant. I don't have to tell you that when you go to the State, you never know what they are going to do. We have expressed the importance of this project as being a safety issue. Right now there is no immediate safety issue, Mr. Barone and our maintenance people as well as outside electricians have come in and deactivated the problem areas, but this is not a situation that can remain unattended. If any of the Council has any suggestions as to how to get the money I would love to hear it.

President Butler: Every industry has down time, what is the possibility of going out and rebid this, would the price come down because of the winter season coming on?

Mr. Barone: I would say that it is possible because the job could be done over the winter and if you have bad weather, this is an indoor job and contractors usually take this into account.
We lost our window of opportunity the last time we bid, which was in February and that would mean spring and/or summertime work. So it is opportune now, but if we wait until January or February we will be in the same position. Our time frame is approximately two months and we might be able to get a contractor on board before the holidays if we act now.

Councilman Calogera: The low bid was $289,000 correct and what is the difference in the price of the new fixtures?

Mr. Barone: The manufacturer of the second round of fixtures was talking about an $80,000 to $90,000 difference. This supplier did not come to the table first time around.

Councilman Calogera: Taking into consideration the grant and the lower figure for the fixtures, we are not talking that much more additional money from the Council.

Mr. Barone: If you want to wait to see the bid and then pass the resolution for the rest of the money from the Council, you can do that. You can bid it but you cannot award it.

Alayne Shepler: You have to award a bid within sixty (60) days and in this case the Council would have to pass a bond ordinance. You would have to bond for at least $150,000 because the $75,000 grant is not guaranteed. You would have to amend the original $200,000 bond ordinance and add to that amount.

Margie Cyr: If we were to receive the grant could we give that money back towards the bonding money?

Alayne Shepler: The bond ordinances are always written that if any grants are received the money would go back to the original bond. As far as a down payment, I don't know what Himanshu has put aside, but he may be able to include it in a temporary budget or do it as an emergency appropriation.

President Butler: We will take the information back to Himanshu to find out what we need.

Natasha Turchan: What we need is you to tell us you want to go ahead with the bond ordinance and we will start looking where we can come up with the 5% down payment. We will need to pass an emergency appropriation.

Steve Goldman: Can we ask the Council to send a letter in support of the grant?

Councilman Baker: We can ask our attorney to prepare the letter and get it to the Council and we will sign off and get it to the appropriate source.

Councilman Maher: Have you people tried to contact JCP&L or GPU to find out from them if there are any grants available since you will be rewiring the building?

Steve Goldman: The only way that is available is if you were doing it as part of the township because there appears to be some type of a conflict and because they would be dealing with too many entities the answer is “no”.

Councilman Calogera: The original problem was the fixtures, do we have to rewire, is it a necessity?

Mr. Barone: Maintenance was a small part. The fixture itself is a minimal part, the wiring that was tied to the sensors, dimmer and overall controls is what malfunctioned. The original system was a totally automated system with no human interaction. The system failed, the sensors were not working properly and the dimmer panel burned out. At this point we have taken the system back to the panels and are making it a manually operated system. It is the only way we can get rid of the automation and the problems. We would like to see the bid come in around the $350,000 range.

Councilman Calogera: Have you looked into ways to raise money on your own, including raising fine fees?

Margie Cyr: We have looked into this and it is not a good idea. We have started doing passport services and it has been much more successful that we ever anticipated. We are grossly under funded compared to other libraries and we go through this every year during our budget hearings. We are operating this library now with the same staff that we operated with when we were in the small building across the road in 1991.

Ord. #47-03 Adopting an Athletic Code of Conduct & Coaches Code of Conduct of Ethics Enforcement Procedure

No Discussion

Ord. #48-03 Granting an easement to OBMUA at the intersection of Marlboro Road and East Greystone Road as required by water storage tank relocation.

No Discussion

Ord. #49-03 Amending fee on Redeemed Lien Cancellation Fee to increase this fee to match the increase realized from the County Offices.

No Discussion

Ord. #50-03 Regulating smoking in public buildings within the Township of Old Bridge and assessing of penalties for violation.

Councilman Maher: I would like to see us reference the Ordinance we have on the books prohibiting the use of tobacco by minors under 18 years of age.

Alayne Shepler: Why would want that referenced in this ordinance. We are at second reading. This problem is basically having to do with employees and visitors to the municipal building not minors.

Councilman Maher: Can we get a report from the Chief?

Alayne Shepler: The Chief has recommended this ordinance

Councilman Redmond: We have an ordinance that gives penalties to minors.

Councilman Maher: Can we get a report from the Chief with respect to the ordinance that I am referring to and sponsored a few years ago?

Alayne Shepler: I don't understand why you want to connect one ordinance with the other ordinance. This ordinance was very specific to what is happening in this building right now and specific to the municipal complex that unfortunately was not always enforced even though there is a State law and the ordinance does make reference to it. This will give the Chief and the Administration the ability to caution and warn employees who may be violating the no smoking laws of the State of New Jersey. According to Middlesex County, we have to have this ordinance in order to enforce the State law.

Councilman Maher: I want a report from the Chief of Police on the ordinance that has been on the books for six years prohibiting the use of tobacco products for minors under the age of 18 years of age giving the violations and warnings that have been issued to date.

Councilman Testino: The reference to “and facilities”, does that mean that the Township owned ball fields and thing like that are going to fall under this ordinance because if that is so, then we have to make that known to the heads of those groups or leagues. I think we should notify the people who are going to be impacted before this is implemented. The Clerk's office should send this out to all the organizations so that if they have any objections they can be heard before the ordinance is adopted.

Discussion Resolutions

DR-1 Permission for St. Ambrose Church to hold a fireworks display on Friday, September 24, 2003 – 10:00 p.m. (Rain date September 27, 2003)

Move up

Councilman Maher: What is the reason for this?

Councilman Redmond: I believe because they got rained out on during the Carnival and they paid for it and cannot get their money back, so it's a make-up date.

DR-2 Resolution supporting DOT Barrier on Rt. 9 – Opposite Fredericks Place/Cindy Street

Move-up

Councilman Testino: We already sent one down, but I have spoken with some people and they thought another resolution would help.

Move-up

DR-3 Cancellation of two CDGB Mortgages for Patrick & Frances Lisa in the amount of $6,048.00 & $10,380.00

Move-up

DR-4 Award Contract #03-24 Cheesequake Village Window Rehabilitation to Tri-State Building Materials in the amount of $51,700.00.

Move-up

DR-5 Temporary Budget Appropriation for Fiscal Year 2004 – Current Budget in the amount of $2,836,931.00; Arena utility in the amount of $202,500

Move-up

Councilman Testino: What is all the money going into salaries in the Arena Utility Account?

Natasha Turchan: The arena is opening in October so we will need the money.

Councilman Testino: We gave you 25% of last of year and now you want the whole balance for the year.

Natasha Turchan: No, the 2.8 million is only the money for October and funds due to the County. The operating budget of 2.8 million is not arena.

Councilman Testino: You are moving $125,000 into the salary account where $83,000 already existed. What happened to the 25% that was given of the Mayor's budget and today that you need an additional $125,000?

Natasha Turchan: Nothing. The arena has not been opened yet. The only funds we are putting in is for the anticipated opening of the area. I will have to check and let you know.

Councilman Testino: I would like this information by Monday.

DR-6 Resolution authorizing vacation of Temporary Construction Easement Blk. 13264.15, Lot 5

Move up

Discussion

D-1 Increased charges on garbage disposal

Councilman Testino: People have been telling me that they have been getting increases in their garbage collection. Shouldn't we have some type of regulation over the rates or some ability to say give us a 30-60 notice before you increase the rates?

Councilman Baker: I know some people who have received notice that their garbage disposal company changed from Cifelli to someone else without giving any notification.

Councilman Testino: I know this is private industry, but it is something that we need to address.

Attorney Ruggierio: I think that our remarks could be addressed to the BPU that regulates this and maybe they can do something.

Mayor Cannon: Perhaps we could inquire because you do get notification when the cable rates go up.

Councilman Testino: I have asked that our legal department provide us with a strategy on what we can do and if our only avenue is to complain to the BPU, then I suggest that we have the resolution drafted.

D-2 Waste Management - Rt. 34 (Hours of Operation)

Councilman Testino: I believe that John Vincenti answered this question in his memo but he said there was something going on and that they were getting a site plan and the hours of operation were being addressed. I don't know that the hours of operation will be satisfactory to the person who is complaining to me, but within reason it should be somewhat accommodating and get some cap on their hours of operation.

D-3 Canyon Woods roads and repairs

Councilman Testino: John Vincenti also gave me a report on this and I thank him. Is the contractor doing the repairs working for us?

Councilman Redmond: Yes.

Councilman Testino: Let's send him a letter and tell him if he does not show up we will dismiss him from the job.

Pinder Sumal: We did send him a letter and he showed up for one day. He is supposed to be coming back in Tuesday.

Councilman Testino: It is not fair to those residents and something should be done. I think we have to get Mr. Ruggierio involved and if they don't show, get rid of them.

D-4 Formation of Budget Review Teams and time line to adopt Budget

Councilman Maher: I think that is taken care of. Do we have a target date of when we are going to adopt this budget?

Councilman Redmond: I believe we received a memo today asking us to hold off until we receive the numbers from Trenton. So until we hear from Trenton we do not know what our target date will be.

Councilman Testino: Can someone call and find out when the awards are going to be announced?

Councilman Calogera: I called Trenton and spoke with the Deputy Commissioner and asked for a meeting on behalf of the Mayor and Council. I am still waiting for them to get back to me with a date. I will follow-up and give them another call if I don't hear from them by tomorrow.

Mayor Cannon: We also sent a letter and we were told that they would put us before the commissioner, but we have not heard back from them yet.

D-5 Purchase of Walkway – 352 Shoreland Circle

Alayne Shepler: This was a carryover from a previous meeting. Mr. Hoff had asked that I provide him with the background information and since he is not here, I will withdraw it.

D-6 Library lighting (Done previously)

D-7 Annual assessment paid by the residents of Oakwood Development to the managing agent (Oakwood Association)

Councilman Calogera: They are still paying common charges of some sort to the developer and they want to know why they are still paying it.

Attorney Ruggierio: I am familiar with the inquiry; I just have not gotten to the bottom of it yet. There is no question that these people are still paying association dues and the developer may or may not still control the development based on the issue of how far along we are, but if you give me a week or so I will be happy to report on it.

Councilman Calogera: I think that Hovnanian is taking over and I believe they are in possession so does that vacate this?

Attorney Ruggierio: Typically, you don't use the obligation to pay your dues to an association because the association is under the control of the developer. Eventually, those monies and the assets of the association go to the benefit of the residents, but I have to look into this because Oakwood has a complicated history and I need to talk to John about this.

D-8 Feasibility of making Ticetown Road, between Rt. 9 and Cottrell Road more pedestrian friendly.

Councilman Calogera: This is a well traveled road and I don't know how we could put sidewalks in there, but it would make it more pedestrian friendly if this could be done.

Councilman Maher: I have been trying to make Ticetown Road down to Higgins Road to the Country Place development pedestrian friendly and I would like to get a report from Administration and John with respect to installing sidewalks.

Mayor Cannon: I think John is working on a report so we can get you the costs and what it would involve.

Pinder Sumal: We looked at this several years ago and I think that the problem was the right-of-way and that is why it was not pursued.

Councilman Baker: Could we send letters to the residents telling them we will give them free sidewalks if they donate their land to the township?

Councilman Maher: With respect to this I would be pushing for this because we are in the town center district. I would like a report from engineering not only on the sidewalks, but to make it more cost effective we could have cinder bike paths or cinder walk paths. Let's not only look at the cost of sidewalks, but at the cinder walkways.

D-9 Feasibility of permitting the use of the jitney by the Sayrewood South high school students (the jitney could pick-up and drop off students at a location convenient to the east campus).

Mayor Cannon: We did get a response from Helen Rende, there are real concerns regarding this. This was given to us on a grant and for commuters, so I don't know that legally we could even use it for that purpose.

Councilman Redmond: Let's carry this to the next agenda session.

Reports

R-1 D.O.T. Barriers – Rt. 9 Opposite Fredericks Place/Cindy Street.

Councilman Testino: I am saying that we should follow-up and get a report from D.O.T. as to where we stand on the application that we made.

Councilman Calogera: I brought this up a year ago and we were told they did not have the money in the budget for it. I think we should reaffirm and send another resolution to them.

R-2 Status of any grants we have applied for and further development of the Town Center Project.

Councilman Maher: I see that in John's report dated September 15th , I just want to know why our applications were denied?

Alayne Shepler: No, the standard letter that we received from the State is that they have more applications than funds to provide and they don't give any other explanations and our applications have always been very, very complete. Every grant application that comes in we submit. We will be applying for that Middlesex County grant and we will be asking the Council for a resolution in support of same.

R-3 Monroe Township Energy

Councilman Maher: Where do we stand with this and did we contact Monroe?

Natasha Turchan: We did and at the present time they are using the same as us, they get their energy from JCP&L, they do not have any aggregation services. Like us they are waiting to see what the County and MCA will be doing as far as going for bids. We are working with one of the vendors who provides primary energy for us. They have our invoices for the last 12 months and they are working through a cost model to see if going for bids from other suppliers would even benefit the township as far as the cost or are we better off staying with JCP&L.

Councilman Maher: Is Monmouth County doing anything?

Natasha Turchan: Monmouth County went only for the primary energy.

Councilman Maher: Contact the town of Ridgewood, New Jersey as I am aware that they are doing something and maybe we could join them in terms of energy aggregation.

Appointment

A-1 Rent Stabilization Board Tenant (Term expires 12/05)

Councilman Redmond: I have two resumes for this.

Councilwoman Panos: There was another submitted, Patricia Hoger.

Councilman Redmond: How may opening are there? Please check and advise by the next meeting.

Comment:

Mayor Cannon: I found out the Clerk's office has scheduled parking permit renewals for Saturday, September 27, 2003. It is the Rosh Hashanah holiday and I have had many phone calls from residents complaining about the choice of dates. We checked with the Clerk's office and was told that there was no other date available due to a conflict in the schedules of the office staff and it could not be rescheduled.

Councilwoman Panos: Stella, are you aware of any available dates?

Deputy Clerk Ward: There are no dates available other than that Saturday. The girls calendars are full and we did not know that it was a holiday when the date was selected.

Councilwoman Panos: So do we cancel it or reschedule, we have to do one or the other.

Councilman Calogera: We have two choices, either change it or add another day.

Mayor Cannon: I think it should be cancelled.

Deputy Clerk Ward: It will be cancelled, but there will be no other day.

Councilman Redmond: Okay, it is cancelled, the clerk advises that we do not need a motion to this.

Councilman Baker: On September 18, 2003 is another hearing in Aberdeen. We passed a resolution that we would support them in their quest against Crystal Lake project. Are we going to send a representative to that meeting and are we still going to support Aberdeen?

Mayor Cannon: I will speak to Sam about this.

Councilman Testino: They have significantly reduced the number of units. I talked to the planning board secretary at the last meeting we attended and she had no contact from any Old Bridge professional. It may very well be that since Sam is going to say that this is the least impact, but if we can convince them to sell off the affordable units, it may have even less an impact. They were also talking about access through Morganville Road, which is a significant outlet and is something that we could not tolerate.

Councilman Redmond: Can we direct the planner or someone to go down there and find out the status?

Executive Session

ES-1 To discuss settlement in Dennis Pinkiewicz matter.

Move up

Hearings – September 22, 2002

H-1 Adoption of the Budget – (Request to carry until State Aid Application is resolved)

H-2 Release/Reduction Performance Guarantee – Commerce Bank of Old Bridge

H-3 Release/Reduction Performance Guarantee – Goddard School Old Bridge

H-4 Release/Reduction Performance Guarantee –Maran Enterprises – App. #79-98Z

Public Portion

Councilman Redmond opened the public portion, seeing no hands, he closed the public portion.

Hearing – Breakfast Club (cont'd)

Mr. Segreto: We would like to get this finished tonight so we can get a decision on this matter. I do want to put something that Mr. Ruggierio and I agreed to very early this evening. We issued a subpoena for the presence of a representative of the County Health Department who did the decibel reading and found that we were in compliance. As a courtesy to him, and rather than have him wait, the attorneys agreed that we would stipulate on the record that in accordance with his report that at the time he was called in about the complaint of noise, that his decibel meter indicated that we were in compliance. I do want you to know that since there were complaints about the noise level, my client went out and bought a decibel meter and they are constantly doing their own testing.

Councilwoman Panos: Did the County representative put it in writing that your meters agreed?

Mr. Segreto: His report states that we are in compliance. He took the measure with his meter not ours. I just wanted you to know that we have a meter of our own and we are constantly testing to make sure the noise level is within the acceptable range.

President Butler: I think that as long as the report states that the reading was where it was acceptable that is all that is required.

Attorney Ruggierio: I would like to confirm that Mr. Segreto and I are in agreement that the report of the county official indicates that there was no violation of the decibel levels on May 3, 2003 when he went out there. Also, this was a random visit and not pre-announced.

Attorney Ruggierio swore in the next witness – Mr. Frank Mileto

Mr. Segreto: Frank, I believe that I explained to you that one of the principle motifs tonight is going to be brevity, we want to do this quickly and just get your opinions on the record so that we can finish our part and the board can do its thing.

Mr. Mileto: I am a registered architect in the State of New Jersey since 1970 and I am also a licensed professional planner in the State of New Jersey since 1971. I am qualified to appear before municipal boards and court proceedings and have done so throughout the State.

Mr. Segreto: In connection with your function as a planner, you are familiar with the municipal land use laws and zoning and site plan ordinances is that correct? Also, in your capacity as an architect, does that involve the uniform construction code as well.

Mr. Mileto Yes. The State of New Jersey has adopted a uniform code that all municipalities are obligated to use and enforce.

Mr. Segreto: You were also employed by the City of Clifton for a number of years.

Mr. Mileto: I was the zoning officer and construction official for 13 years as well as acting city manager for six years.

Mr. Segreto: I have asked Mr. Mileto these questions so that you will know that he is an expert and qualified in the fields mentioned.

Attorney Ruggierio: I don't think that there is anyone here who would oppose that, so he will be received as a person to give expert opinion.

Mr. Segreto: Did you prepare the drawing that is exhibited here this evening and before you prepared it, did you actually visit the premises and observe the building and the interior and in your capacity as an architect do you assert what you have depicted on the drawing accurately reflects what you saw on or about June 23, 2003?

Mr. Mileto: Yes.

Mr. Segreto: Were there any seats in the bar area?

Mr. Mileto: No.

Mr. Segreto: With respect to the number of seats that are there, are the number of parking spaces on the existing parking lot sufficient and in compliance with the requirements of the ordinance?

Mr. Mileto: Yes.

Mr. Segreto: Are the requirements of the ordinance based on occupancy and is there anything in the zoning ordinance or site plan ordinance of this community which imposes a limitation on the number of occupants in a building? Also, is there anything in the ordinance regarding the off-street parking requirements that is applicable?

Mr. Mileto: No.

Mr. Segreto: With regard to this building in the renovations has there been any expansion of the exterior perimeter of the building or any changes in the use of the facility and how long has this property been used as a bar and restaurant.

Mr. Mileto: No and this property based on the letters and reports it has this use for many years.

Mr. Segreto: With regard to a site plan application, you are familiar with the provisions of the ordinance of this municipality and the provisions of the municipal land use act that pertains to site plan applications and if so, is a site plan application required under either of these laws? Also, is any variance required under these laws?

Mr. Mileto: No, there is no requirement for either.

Mr. Segreto: With respect to occupancy, you have indicated that there is a uniform construction code, do you in your capacity as an architect, have you had an occasion to become familiar with every aspect of this code and you interpret and read and apply the standards of the uniform construction code and does this code have any standards concerning permitted occupancy?

Mr. Mileto: Yes. The BOCA code is a uniform code adopted by the uniform construction code adopted by the State of New Jersey as the code for the building code of the State. Based on my analysis under this code the number of occupants is 900.

Mr. Segreto: With regard to the zoning ordinance of this municipality, it has definitions and the municipal land use act also has definitions?

Mr. Mileto: Yes.

Mr. Segreto: There was a memo from the zoning office, Mr. Serdinsky, dated November 6, 2002, in which he says parking for 829 persons requires 414 spaces, is there any rational basis in any of the referenced uses, which states that if you 829 persons you have to have 414 spaces?

Mr. Mileto: No, there is nothing that correlates the number of occupants to the number of spaces.

Mr. Segreto: On page 2-39, there is a definition in the ordinance of what a restaurant is, would it be correct to say, that if you want to know that definition, you have to go to the definition in the zoning ordinance, is that correct?

Mr. Mileto: According to that section, a restaurant is defined as any establishment, however designated at which food is sold primarily for consumption on the premises. However, a snack bar or refreshment at a public or community swimming pool, playground, golf course, play field or park, operated solely by the agency or group operating the recreational facility and for the convenience of patrons of the facility shall not be deemed to be a restaurant.

Mr. Segreto: The first part applies to us and do we meet the requirements?

Mr. Mileto: Yes, you meet the criteria and the definition of a restaurant.

Mr. Segreto: We have heard about a dance hall from the zoning officer of the municipality, is a dance hall defined anywhere in the zoning ordinance of this municipality or the municipal land use law?

Mr. Mileto: No.

Mr. Segreto: I have heard the expression, night club, is that defined in the zoning ordinance or the municipal land use law?

Mr. Mileto: I don't believe so.

Mr. Segreto: With regard to the actual schedule in the zoning ordinance which determines what the parking requirements are, in Appendix F, is there a category of recreational uses and is there a standard for a restaurant with bar and what is that standard?

Mr. Mileto: Yes, the standard is parking required is one space for every three restaurant seats plus one per two bar stools.

Mr. Segreto: With respect to what is actually there in the restaurant now, and what is there when you prepared your graphic, based on that criteria of a restaurant with a bar are the number of parking spaces that we have in compliance with ordinance of this municipality?

Mr. Mileto: Yes, existing on the site there are currently 66 parking spaces and it meets the criteria.

Mr. Segreto: Let's assume this was a bar and night club, what is the criteria there?

Mr. Mileto: One space for every two seats.

Mr. Segreto: So, even if someone were to say it is a bar/night club, we meet that criteria also, correct?

Mr. Mileto: Yes, under that guideline 33 spaces would be required.

Mr. Segreto: There is also another category, amusement, dance hall, skating rink, hall without fixed seats, let's assume that is the one that applies, what is the criteria under the ordinance?

Mr. Mileto: One space for every 100 square feet of gross floor area of the building. The gross floor area of the building is 5,245 square feet, that also complies because you would need fifty-three spaces.

Mr. Segreto: There was testimony by the zoning officer of this municipality today and there was also testimony by him on June 23, 2003. With respect to the testimony on June 23rd have you had an opportunity to read the transcript of his testimony?

Mr. Mileto: I did and I was also present at that hearing on June 23rd.

Mr. Segreto: Just a couple of things I would like to bring to your attention and I want to find out if you are in agreement with his statements. Mr. Serdinsky stated that he does not believe the kitchen is really legitimate, do you agree?

Mr. Mileto: No, it is a kitchen as all of the requirement to prepare food are met according to the zoning ordinance.

Mr. Segreto: Is there anything in the zoning ordinance of this municipality that says parking spaces are a function of the occupancy?

Mr. Mileto: No.

Mr. Segreto: Also, according to the testimony of the zoning officer at the last hearing, he acknowledged that we have used smaller tables and we have maximized the dance floor space by opting to use these small cocktail tables. Does that indicate that he was aware of the change in the actual set-up of seats in this facility?

Mr. Mileto: It appears so.

Mr. Segreto: Mr. Serdinsky was asked if he cited them for any zoning violations and he indicated that the reason he did not give a citation was because they were not violating the ordinance, do you agree with that?

Mr. Mileto: I agree.

Mr. Segreto: Do you believe there is any rational basis for a zoning officer to issue a citation for the violation of the ordinance?

Mr. Mileto: I cannot find any.

Mr. Segreto: Based on your review of the transcript and your recollection of this testimony did he articulate any respect in which he said we were violating the zoning or the site plan ordinance of this municipality?

Mr. Mileto: No, I did not read that nor did I hear that.

Mr. Segreto: The zoning officer made a recommendation that he would go with a conservative number of 134 persons because that all the parking lot will yield for bar seats, I don't believe that the tables are anything but a disguise for bar seats, do you agree with that?

Mr. Mileto: No, a bar seat is at the bar, these are tables and chairs.

Mr. Segreto: With regard to the statement of a conservative number of 134 persons, by that I assume he means that he was recommending that the occupancy be limited to 134 persons. Does the number of actual occupants have anything at all to do with the number of required parking spaces under the zoning ordinance of this municipality?

Mr. Mileto: No.

Mr. Sergreto: Let's assume the municipality were to change the zoning ordinance and provide a different standard, under the municipal land use law and their own zoning ordinance would my client be grandfathered in as existing lawful non-conformity?

Mr. Mileto: Yes. They would not have to comply with any new standards that might be built into an amendment of the ordinance?

Mr. Segreto: Mr. Serdinsky also stated that there have been numerous places in town and it would be hypocritical to say that there no places where there is live entertainment. We would be hypocrites to say that it is okay for them, but not the Breakfast Club. So I basically I did not want to go into that argument. Would it be fair to say that you agree with that statement?

Mr. Mileto: Yes.

Mr. Segreto: Based on your experience do you think a governing body can say to one establishment you can have live entertainment, but to another licensed establishment you cannot have it?

Mr. Mileto: Not unless there is a difference in conditions.

Attorney Ruggierio: I just have a couple of quick clarifications I want to ask about your testimony. As an architect have you from time to time been in a position where you presented a plan to a municipal zoning officer and even though you are an architect and have more education than a municipal zoning officer, at least as to the interpretation of the zoning code. However, in the first instance, the zoning officer of a municipality makes a decision which you are bound by as an architect, correct?

Mr. Mileto: It is exactly what the municipal land use law says.

Attorney Ruggierio: If you as an architect, or the developer you might represent not in agreement with the decision made by a zoning office, there are avenues of appeal, most notably to the zoning board, correct?

Mr. Mileto: Correct.

Attorney Ruggierio: Would I be reaching very far if I suggested that in your experience as an architect that you have at least once or twice come up against a zoning officer whose judgment did not agree with yours?

Mr. Mileto: Sure.

Attorney Ruggierio: In this case, you are aware that Mr. Serdinsky, right or wrong, has concluded that the configuration that is contained in Applicant # (floor plan), constitutes a dance hall, you are aware that he has made that judgment?

Mr. Mileto: I understand that he wrote a letter to that effect and made that opinion.

Attorney Ruggierio: So, unless he chooses to change that opinion, the remedy for the owners of this facility would be to go to the zoning board and get a use variance or an interpretation of the zoning board indicating that Mr. Serdinsky's initial judgment was incorrect?

Mr. Segreto: I object, you are asking him for a legal conclusion. One of the remedies we have if we are aggrieved by decision of the municipality is to take an appeal to the director of alcoholic beverages.

Attorney Ruggierio: I think I understand your objection, but I am really asking questions about zoning matters because that is what you confined your questions to. I happen to believe that the municipality probably has more wide authority in connection with the regulation of liquor licenses, but that is something that has not been dealt with in this proceeding. Therefore, I am confining my questions to zoning and my question to Mr. Mileto is in this case, the question of whether or not Mr. Serdinsky is correct in characterizing this facility as a dance hall, has to be remedied from a zoning perspective by some type of application to the zoning board, correct?

Mr. Mileto: Yes.

Mr. Segreto: We have recent correspondence denying a request for a zoning permit for the modified plan and I believe that we have already filed our appeal with the board. The only reason I thought it was appropriate for me to bring in planning and architectural testimony is because the only witness that had been offered by the municipality was its zoning officer and he dealt with the zoning issues.

Attorney Ruggierio: Mr. Serdinsky was right when he told the Council that plan OB#1, is not the configuration that is presently being carried out at this Breakfast Club facility, correct?

Mr. Mileto: Correct.

Attorney Ruggierio: You agree, based on your understanding, that Mr. Serdinsky issued his zoning permit based on that plan OB#1?

Mr. Mileto: Yes.

Attorney Ruggierio: With respect to the uniform inspection code, are you familiar with the fact that the construction code official Mr. Ron Concannon, has suggested to Mr. Bruins of your firm, that there needed to be a re-determination of what he called net square footage of the building to exclude areas that are uncharacteristic of the occupancy in order to make the calculation as to how many occupants there could be under the BOCA code?

Mr. Mileto: I have not seen that letter, but I believe I know what he is asking.

Attorney Ruggierio: The other section of the BOCA code that needs to be revisited is Table 1008.1.2. This table gives the maximum floor area allowances per occupant. In looking at this chart, 900 occupants would not be a legitimate figure. Also, the calculation should be based on the net square foot of the building and should not include areas that are uncharacteristic of the occupancy. I think that Mr. Concannon is asking that there should be a re-calculation by the applicant.

Mr. Mileto: Two sections in the code determine occupancy. The one being cited in that letter is the one that you use to determine the minimum number of people that you must provide egress for. That is an egress decision, you cannot say you are going to put one person in the middle of 5000 square feet and have one exit. That does not work under that section and that is what that part of the codes says. If you take the net area where you can put people, you fill that at 15 square feet per person and that is the minimum number of exits that you have to provide, that is not the maximum occupancy. The maximum occupancy load is determined by table 1009.2, which is the number of exits and how big they are. So the more exits and the bigger they are, the more people you can put in there. That is the difference between the two, but we exceed the minimum, that is for sure.

Attorney Ruggierio: It's true that in this give and take between an architect and a construction official that it is not unusual that information of this nature is asked for and supplied
correct?

Mr. Mileto: Correct.

Attorney Ruggierio: In supplying this information, at some point the construction official will make some determination is that correct and if he makes that judgment that it is not a legitimate figure, there are appeal rights that the applicant has to the construction board of appeals, isn't that right?

Mr. Mileto: Right.

Attorney Ruggierio: So this question of the proper number of occupants is something for at least of purposes of Mr. Concannon, has to still be resolved, correct?

Mr. Mileto: Yes.

Attorney Ruggierio: My final question is a matter of sequence, when a zoning permit was sought, the document OB#1, was what was submitted to Mr. Serdinsky and you have been to this facility recently and you tell us that Applicant #1, that Mr. Segreto is talking about, is the actual condition that exists at the facility now and those two plans are vastly different in the number of tables that are placed in the facility, correct?

Mr. Mileto: Yes.

Attorney Ruggierio: Would you agree that this applicant is not currently operating in conformity to the zoning permit that was issued?

Mr. Mileto: He is not operating in conformity with that plan, he is operating with less than what has been provided. He has less seating.

Attorney Ruggierio: So he made a change on his own without any type of approval, correct?

Mr. Mileto: As far as I know.

Attorney Ruggierio: Mr. Serdinsky, right or wrong, indicated that because of this change a site plan approval is required, and you don't agree with that conclusion, correct?

Mr. Mileto: Correct.

Attorney Ruggierio: But, that is Mr. Serdinsky's judgment to make, correct?

Mr. Mileto: As the zoning officer, yes.

Attorney Ruggierio: So if there is an appeal from that it has to be taken to the zoning board by the applicant, correct.

Mr. Mileto: Yes.

Attorney Ruggierio: I have nothing further of this witness.

Mr. Segreto: You refer to the construction official, Ron Concannon, he has not been here to testify and in accordance with due process, any evidence that the board intends to take account of, the applicant has the right of confrontation. We have finished our presentation and I would like to make a brief summation and then board can deliberate and make a decision.

Attorney Ruggierio: If Mr. Segreto can make his closing statement, then if there are questions that need to be dealt with, then we can do that, but we can carry this matter to the next agenda session and have full and complete discussion by the Council and then make a judgment.

Mr. Segreto: I would respectfully ask that you decide it. You will not know a month from now anything more than you know now. If you think that this application should be voted down then it should be done; if you think it is an approvable one, then you should vote it up one way or the other. I thought we were all on the same wave length, that we wanted to finish this thing once and for all.

Attorney Ruggierio: That would be my recommendation to the Council.

Councilman Testino: If he wants to bring Mr. Concannon here, let's adjourn to the next meeting.

Attorney Ruggierio: I just would like to say that I took a letter from Mr. Concannon and I asked the witness to agree or disagree with the contents.

Councilman Testino: I understand, but I don't want him sitting here pontificating, saying that he did not have the opportunity to talk to a witness.

Mr. Segreto: I have great respect for the members of the board, but respect is two ways. I don't pontificate, when I am engaged by a client, I do the best I can on behalf of my client and that is all I have been doing here.

Councilman Testino: I'm saying that if you want to talk to Mr. Concannon, let's bring him here.

Mr. Segreto: I would like to give a brief summation and respectfully ask you to make a decision.

Councilman Testino: Then I assume you are waiving your rights to speak to Mr. Concannon?

Mr. Segreto: I don't want to talk to him, I only said that the attorney asked some questions and I pointed out that he was not here to testify. You have had a couple of hearings and have given consideration to this for a long period of time and it is now time to make a decision.

Councilman Testino: I think we should follow our attorney's advice.

Mr. Segreto: This is a facility that has been there for many, many years. It has been the recipient repeatedly to different prior owners of approval. It has been a restaurant with a bar and dancing for as long as it has been there and time and time again the governing body of this municipality has approved the application. The number of parking spaces was set 10 years ago and they have not increased or decreased. At no time in the past has the board find any perplexing problems related to the number of parking spaces. The only testimony which has been received by the board was by the zoning officer. His testimony does not square with either municipal land use law nor the zoning ordinance. The only reason I brought in architectural testimony is because I wanted to countermand and give the other side of the coin. You have heard the testimony both ways, it is very unusual in my experience for a board on a liquor license application to get involved in zoning and planning issues. If there is a zoning or planning problem that is not your function to decide under the alcoholic beverage license provisions. We will meet your zoning officer in that forum, because we have an appeal pending, but it has nothing to do with a liquor license. I have taken the trouble to look at the actions of the governing body on this particular license at this premise and as I pointed out only once did the governing body attach any conditions to the approval and that was prohibiting of go-go dancing and you know that we do not have any go-go dancing. At no time other than that were conditions put on the license and for those of you that know your community better than I, know exactly what you had there in the past and essentially the same, live music, dancing, and food. Was there a bigger kitchen in the prior place, yes there was, but that has nothing to do with under your laws. There are a good number of licenses issued and approved by you, only ours raised questions about parking spaces and other things. I am of the opinion that it would be wrong if you deny this application. The consequences that we would immediately file an appeal that is an automatic stay and the director will send it out to an administrative law judge in the City of Newark who in maybe 9-10 months will have a hearing and I am very confidant that we will prevail. I ask you to approve this and I don't get good vibes here to give the approval here. It is pragmatic to say that there are people in the neighborhood who have complained, but I have not heard them here. So let's deny it and let the state director make the final decision because if that is where you are going, please do it and let's get it over with so we can take our appeal. I do think that this application is entitled to approval. Understand something that if you approve it he does not get a free ride. If he does not know by now that the collective eyes and ears of this municipality are focused on him and that if he does things that are wrong on those premises that you are going to file disciplinary charges against him. That is the leverage that you have and I think that you would be acting arbitrarily, capriciously and unreasonably if you deny this. What evidence are you going to rely upon, the zoning officer. I heard one of your members say we have nothing to do with zoning or planning, why do we want to hear Mr. Segreto's expert planner and architect? The thing that occurred to me is why did you listen to your zoning officer so let's assume it is a washout and you pay no attention to either, what is left as a residue of facts upon which you can base a denial. I put this matter in your hands.

Attorney Ruggierio: Are there any Council members who need clarification of evidentiary issues? I don't know if you are going to follow my recommendation, but probably you should have a time when you can more fully discuss the evidence you received in this matter, but at this point I know that there may be questions for the witnesses and I guess that I would not want this to conclude and then you would say that you needed a clarification.

Councilman Testino: Mr. Ruggierio, do you agree that there were no witnesses from the public that testified at any of the hearings?

Attorney Ruggierio: Yes.

Councilman Calogera: Didn't we have the public here at one of the hearings?

Mr. Segreto: I have minutes of regularly scheduled Council meetings where people at the public portion got up and spoke that does not constitute a part of the hearing. There have been two hearings and there have been no witnesses other than your zoning officer.

Attorney Ruggierio: I would not be too concerned about this because what their perceptions are would bear very little on the question of this compliance or non-compliance of the zoning ordinance.

Councilman Calogera: I would like to ask Mr. Van Leewen be sworn in.

Attorney Ruggierio: I think that if we do this we are reopening the evidentiary portion of the hearing.

Councilman Testino: I would move that we adjourn tonight and deliberate at the next agenda meeting.

Attorney Ruggierio: I think at this point the record has been closed and if you want to reopen it that is your option, but I do think that in order to comply with due process.

MOTION

Motion to adjourn this matter tonight and deliberate at the next agenda meeting on October 20, 2003 made by Councilman Testino, seconded by Councilman Redmond and so ordered on the following roll call vote:

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

NAYS: None.

ABSENT PODIUM: Councilman Baker

ABSENT: Councilmen Greene, Hoff.

MOTION

Motion to adjourn meeting at 10pm made by Councilman Testino, seconded by Councilman Redmond and so moved on the following roll call vote:

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

NAYS: None.

ABSENT PODIUM: Councilman Baker

ABSENT: Councilmen Greene, Hoff.

__________________________
President Reginald Butler