Old Bridge Township, New Jersey - October 20, 2003 Minutes

OLD BRIDGE TOWNSHIP COUNCIL

AGENDA MEETING

October 20, 2003

An Agenda meeting of the Township Council of the Township of Old Bridge was held on October 20, 2003 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 which was followed by a short prayer.

Deputy Clerk Stella Ward announced that this meeting is 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 October 27, 2003 at 8:00 p.m.

Roll call at 7:35 p.m. by Deputy Clerk Stella Ward, showed the following members present: Councilmen Baker, Greene, Redmond, Testino, Councilwoman Panos, President Butler. Councilmen Hoff and Maher were absent. Councilman Calogera arrived late.

Championship Baseball District Champs –Laurence Harbor Little Leagues (WB)

DO-1 Ordinance authorizing acceptance of land from E/O Rondinelli - Block 2150 Lot 4.12. (WSR)

Asst. Attorney Berlen: It is for the little league field, we've already done a resolution. This is part of the formality in preparing the deed.

Permission to hold the Laurence Harbor Democratic Club Halloween Parade on Sunday, October 26, 2003 at 3:00 pm.

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

RESOLUTION #553-03

WHEREAS, the Laurence Harbor Democratic Club has proposed a Halloween Parade on Sunday, October 26, 2003 at 3:00 p.m.(no rain date); and

WHEREAS, the Township Council wishes to endorse such a parade and permit such parade to occur in the public streets; and

NOW, THEREFORE, BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, State of New Jersey that it hereby grants permission for a Halloween Parade to be conducted by the Laurence Harbor Democratic Club.

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

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

RA 08-04 Old Bridge Rotary RA 09-04 St. Thomas Senior Citizens Club
RA 10-04 St. Thomas Church RA 11-04 St. Thomas Altar Rosary
RA 12-04 St. Thomas Home/School RA 13-04 St. Thomas Holy Name
RA 14-04 Count Queenship of Mary RA 15-04 Count Queenship of Mary
RA 16-04 St. Thomas Apostle

DR-1 Resolution approving various elements of the Sommer vs. Old Bridge Case. (WSR)

DR-3 Rescind Resolution #169 – Memorializing Release of Performance Guarantee for Pulaski Savings Bank. (REMOVED)

DR-5 Contract Extension to Blaise Batko for the 9-11 Memorial payment for pavers as per contract proposal in the amount of $10,690.00. (CERT. #1186) (AFFIRM. ACT.) (TB)

DR-6 Resolution in support of the execution of the memorandum of agreement by the County for improvements to the intersection of Bordentown Avenue & Ernston Road. (JV)

DR-7 Temporary Budget Appropriations for Fiscal Year 2004 Current Budget in the amount of $2,290,667.00 Arena Utility in the amount of $51,500.00 totaling $2,342,167.00. (HS)

DR-8 Award professional services contract to Buchalski, Reynolds & Brodowski for valuation and consulting services for properties listed in Old Bridge from 7/1/03 to 6/30/04 in the amount of $40,000.00. (CERT. #1164) (AFFIRM. ACT.)

Councilman Calogera: We have a meeting set up with Hovnanian for tomorrow morning, I am hopeful that we will be able to resolve this issue because there are a number of conflicting opinions about this issue.

Councilman Testino: I thought that we were going to get a report back from legal on what the options were. I also received phone calls and I think that if we are planning on taking any action we need to give notice to the other people that are interested.

Councilman Calogera: I thought that there was a motion at the last meeting to close Prest's Mill Road at the last meeting.

President Butler: Didn't the attorney advise us that we didn't have the authority to do that.

Councilman Calogera: I think that we need to get legal on it and find out if there is any flexibility on the part of the Hovnanian Group.

Councilman Greene: It is very important that all that residents have an input on this, Spring Knolls, Oakwoode Development as well as the residents who were here last week. I think that the township has got to do the right thing by the residents and to work with the developer. There may be some alternatives that everyone would be pleased with. There are traffic and safety issues here that need to be resolved, we need to negotiate a fair, reasonable and open resolution to this matter.

Councilman Baker: I thought that we were waiting for options from the attorney. I believe the councilman can meet with whomever he wants but I think that if he is looking for advice, he should wait until we get feedback from the counsel. As to Mr. Greene' comments, I only remember voting that we would have a meeting. The town's counsel comments are on record stating that this is a done deal.

Councilman Greene: I think if you check the minutes you will find that there was a resolution put forward.

Councilman Baker: We had 50% of the people from Prest's Mill here but we didn't have here that night 50% of the people from Inverness and Oakwoode who want this to go through. I suggest that the council wait for the attorney to give us options before doing anything.

Councilman Calogera: I thought the council asked me to sit down with these people.

Councilman Greene: I think that is the way we should proceed with Mr. Calogera sitting down with these folks. I am adamant in my position that there was a resolution, which I did not support last week.

D-3 Sidewalk Grants – (Listing of what we have applied for in the last twelve (12) months and if we haven't applied the reason why not. (Report by: Administration) (LR)

Mr. Vincenti: On September 15 I gave the council a report on three items and the last item was the status of Town Centre improvement grants. That summarized all the sidewalk grant applications that we applied for at that time.

Mr. Vincenti: There were two grant applications for T21 funding, one was along Cottrell Road, the other was Ferry Road. We applied twice and were denied twice, in 2002 and 2003.

Mr. Vincenti: No. There is only a small amount of money and because of the large amount of applications we were not at the top of the list. We applied to the County of Middlesex for Downtown Business District Improvements last year and again last week. This deals with similar sidewalk improvement. this time we are dealing with Route 516 along the municipal complex as well as on the complex to encourage pedestrian movement between the shopping center and complex.

Mr. Vincenti: Yes, last year Mr. Azzarello, Sam Rizzo and myself had what we thought was a productive meeting with Carl Spataro of the County and he gave us a commitment for some money and that did not happen. We are hoping that this year will be different.

Councilman Calogera: What happened to the ordinance on Chief Collow – it was on my agenda.

President Butler: I removed it because there is something called a “Rice Notice” any time you are going to talk about employee money or the employee – you have to give him three days notice. We just gave the Chief a notice today.

President Butler: Yes. We took it off and put it on the next agenda. I had some questions – I got my questions answered but I was told that this was a process that we need to take and that is why we took it off.

Councilman Calogera: The Chief was notified about this once before wasn't he? Because it was on the agenda.

President Butler: It was on the agenda before and I sent him a memo this morning.

Councilman Calogera: He has prior notification of this. Did the Chief request another “Rice” on this? Have we asked him if he wants this in closed session tonight?

President Butler: The attorney called the Chief this afternoon and I don't know what transpired.

Councilwoman Panos: We had this item since Friday, Chief did you have this since Friday?

Councilwoman Panos: This item about accumulated sick time, you didn' know about this on Friday?

Chief Collow: I was aware of it on Friday, this afternoon I received the “Rice Notification ” from Mr. Butler.

Chief Collow: No I haven't.

President Butler: I recommend that we take a ten minute recess until the Township Attorney and representation from Lowe's gets here and we can do the hearings.

Mr. Vincenti: This is a bond release hearing for the Lowes' Shopping Center on Route 9 and Perrine Road. In May of 2003 there was a partial reduction down to 70% - there were some punch list items that were still outstanding at that time. Since then all the items have been completed to our satisfaction. We are recommending a release of the remaining 30% of the performance bond conditioned upon the posting of a two year maintenance bond in the amount of $415,583.00.

Councilman Redmond: Are all the drainage improvements that are going on at Perrine Road part of this application?

Mr. Vincenti: The drainage improvements that were just completed were associated with our Transportation Trust Fund Project – it is unrelated. There was an off-site drainage line that was installed in Perrine Road by Lowe's and it was solely for their detention basin. It took water from the large detention basin on Perrine Road and ran it to the stream.

Mr. Vincenti: The Lowe's Shopping Center is owned by Fisher Brothers and they purchased Laura's Pancake House.

Mr. Vincenti: There is a new application for that corner and if you tell me your concerns we may be able to address them then.

by Councilman Calogera to release the Performance Bond based on the Engineer's recommendation, seconded by Councilman Baker and so ordered on the following roll call vote:

Councilman Calogera: When this comes before the planning board I will go over Mr. Testino's concerns with him.

President Butler: After our Township Attorney gets here we will start the Breakfast Club hearing. I will open the meeting up to the public for any comments and concerns.

Mr. Jack Gurliaccio: There is a piece of property on Route 35 (Hick's Auto Body) that has about nine 55 gallon drums filled with pollutant, they are sitting on top of soil, which will rust and the pollutant will leak into the soil.

Mr. Perry Simone: I live at 37 Oakland Road in the Oakwood Development and I would like to speak on behalf of the 209 home in Oakwood and the 200+ in Spring Knolls and close to a hundred on Inverness and Valley Vale and surrounding streets. We spoke in the past in support of the Planning Board decision. Our concern is that there were some inaccuracies in the Suburban article. The emergency road was done at the request of the Lakeridge West residents in order to reduce the amount of new homes. Our concern is that the only way out of those new homes would be Nathan Drive, the option of going down Trans Old Bridge and out Spring Valley or even the bridge at the A&P – to go to the new Town Center. We think that in a point of fairness – for only 86 homes out of the 386 – to even have any type of access to Prest's Mill and for safety concerns, school bus concerns – it is very difficult to tell someone at the base of Prest's Mill in the new Hovnanian development (that can almost see Ticetown Road) that they will have to drive through Morris to Overhill on Nathan to Oakland Road to Cottrell Road. It is very difficult to try and cross Ticetown Road from Norman and Valley Vale. This was an approved plan by legal – kicked back to the Township of Old Bridge by a Middlesex County judge. Therefore we are asking the council to not push forward on the idea of closing Prest's Mill Road. I don't think that the safety concerns of 38 homes should outweigh several hundred homes. This is an approved plan and it was the best deal that we could get – none of us wanted any homes at all.

Councilman Testino: I don't think that the council has any authority, this is a settled matter and the only thing that will happen is that Kevin will be listening. The attorney gave his opinion last week.

Mr. Simone: There were some inaccuracies in the Suburban article and that is why I am here. The article stated that Mr. Vincenti was the only one who came up with the emergency road, that is not true. He helped it along in design, they asked to cut off those 41 homes.

Councilman Testino: I don't think that Mr. Vincenti is backing off the plan at all. He is saying that this has been a long planning board process and a long process legally. There is a lot of concern all around but we don't have any authority here.

Mr. Simone: At no point did the attorney's of Hovnanian say that they were going to close Prest's Mill Road. Their position from day one was that it was an existing paper road and it would need to be open.

Councilman Testino: I am sure if this council tried to close, they would make us pay them for it.

Plenary Retail Consumption License N.J. Wine & Spirits, Inc. t/a Breakfast Club 80

Mr. Bruins: My understanding is that the hearing was concluded and the council will be deliberating.

Ms. Berlen: Correct, the last time that we were here on September 15th and the parties made their closing statements, the hearing was conducted by Mr. Ruggierio; who is not here this evening. I am here in behalf of the council, the point of this hearing this evening is for the council to deliberate and make their decision in this matter. Prior to deliberation, I want to discuss a few matters with the council on behalf of Mr. Ruggierio. When the license comes before you, it is for a renewal or non-renewal or a renewal with conditions. To use Mr. Ruggierio';s phrase the problem with this case has been putting the cart before the horse. Normally when a license is a person to person transfer, they are just taking over for another and they will just go into the same bar or restaurant, so the only thing that the council is reviewing is the purchaser and their background – there are really never any zoning issues that are ever involved in a transfer. Sometimes there is a completely new facility and in that case the licensee comes to the council with all their permits in place and it is presented for the council's review. Here we have a divergence from both those scenarios. The Breakfast Club went into an existing facility without permits and without authorization they began dismantling the kitchen, they took out some dining tables and brought in cocktail tables and at one point they were told that they needed to go to the zoning board and that wasn't something that they wanted to consider, they said that they would go in, in the same configuration that was already existing there; which was Mickey McGuire's. That facility already had an occupancy allowance of 200, basically the Breakfast Club had essentially changed the interior of the facility without permission and without any zoning approval.

It is clear to me from prior hearings that you are angry with this establishment and with what they did and how they went about doing things. However, this matter did go up before an administrative law judge and eventually to the Director of the ABC. It is important for this council to keep in mind that you have to act reasonably in your consideration in this matter, it will probably not be sustainable, if you fail to renew this license. In the long run it will not serve the residents of this town to deny this license renewal because it would not be sustainable at the next two stages.

Therefore, Mr. Ruggierio is recommending you renew this license with conditions: 1. A limit on the occupancy – it should continue at 200 persons unless and until the applicant at some future date gets a zoning board or fire official to relent on the limit and to indicate a greater capacity would be allowable. 2. There would be a condition on the configuration on the inside of the facility – it be in total conformity with the plans they filed. I would ask Mr. Vincenti to be more specific (on the record) is there a date on the most recent plans?

Mr. Vincenti: I would suggest that the conditions should be explicit in that the floor plan that was approved as part of the building permit.

Mr. Vincenti: I don't have it available – it is the approved building permit set of plans – the key element is that the tables and chairs as indicated on that plan be established, because that is the basis for the issuance of the building permit.

Ms. Berlen: Finally there were some informal discussions throughout the hearing with regard to valet parking or reconfiguring the parking lot to allow additional cars to be parked. I would recommend that not be considered unless and until that is approved by an appropriate board. There shall be no valet parking at the facility.

Councilman Redmond: Are you saying that there should be no valet parking at the facility or no valet parking like they had proposed the other night?

Councilman Redmond: There is some sort of valet parking there now, wasn't that part of some previous – wasn't that something that the police recommended?

Mr. Vincenti: Their valet parking was required by them because their occupancy exceeded what was approved. The basis for Mr. Ruggierio's recommendation is based on the fact that the township cannot administratively approve valet parking on any property because the design standards of our ordinance are violated, only an approving board can approve a variance or a waiver from those standards.

Ms. Berlen: I understand your frustration but I think that you need to do what a judge will perceive as the reasonable thing to do in this matter. I recommend that you approve this with those conditions.

Councilman Calogera: Earlier in the hearing process I asked the applicant to submit written documentation on any parking agreements that they had with any surrounding properties, I have not seen anything as of yet. Has the applicant submitted that?

Councilman Calogera: Does the applicant have permission and documentation to park vehicles any place other then in their lot?

Ms. Berlen: That is not at issue here, we are talking about this license renewal and the existing parking lot. I am not talking about any other parking arrangements because that has not been before this council, there was no documentation presented.

Councilman Calogera: We have people walking down Rte 516 and crossing it in an intoxicated state. There are a number of problems in regards to the number of patrons versus the existing parking. I would like to know if we are creating an unsafe condition by renewing this – if we are going to do this we may have to add other restrictive covenants for more security and different lighting, the applicant may have to ensure a traffic light. There is something that they are going to do to alleviate the problem with pedestrians.

Ms. Berlen: These are the recommendations that Mr. Ruggierio suggested, you can add additional conditions if the majority of council agrees, that is what these deliberations are for.

Mr. Vincenti: That was the occupancy placard that was issued to the Breakfast Club when they got their CO at the time of them taking over the operation.

Councilman Greene: I agree that the parking situation was an issue from the very beginning – we were aware they would not be able to fit the cars that would be in the 85 spots. The lack of parking leads to the quality of life concerns of residents that live over there. Since they couldn't fit the cars there, you had patrons parking on local streets and in many cases they were disorderly and did things that concerned the neighbors. I can't approve this unless I get some kind of absolute understanding as to what they are going to do with the over flow of parking.

Councilman Calogera: The problem that I have is that the applicant had come here originally and misrepresented the use. That is on the record with what he said he was going to do and then what was done. I believe that we have a misrepresentation and that causes the problem of credibility. I feel that this council can no longer give credibility to what is being put forth by the applicant in the way of promises or agreements.

Councilwoman Panos: There is the 200 person limit and no valet parking – what is the other restrictions?

Mr. Vincenti: The inside configuration would be in accordance with the approved building permit plans as it relates to the floor lay out and the seating and table arrangement.

At this point in the meeting an argument ensued between Councilman Baker and Councilwoman Panos

Ms. Berlen: Because an administrative law judge looking at this would likely find that denying them outright is probably not a reasonable response based upon what this council perceives as short-comings.

Councilwoman Panos: If this is approved tonight, their next step will be to go before the zoning board or planning board and redo.

Ms. Berlen: That is their option, not necessarily what will happen, they may be happy to accept the conditions of the council. We cannot make them go and do anything.

Councilwoman Panos: If this is approved with these conditions and they don't abide by them, would all the documentation build a case against them in front of the judge if we revoke the license.

Ms. Berlen: This license comes up for renewal every year and during the course of the twelve months you can document any problems that arise and at the time of renewal the following year, you address those issues and they are either corrected with conditions or not.

Councilman Testino: I agree that this whole mess was brought on by the applicant themselves. When you are not candid with a public body, you are going to get this kind of reaction. If you come before this body again you better understand that strike one is already gone. People are going to be watching your establishment very closely to make sure that no one gets hurt, that is our job. If you do not have the right fire conditions there – we are not going to have an incident like they had in Rhode Island. You had better live up to the fire and zoning standards or there will be calls from this dais to send people there to issue summons. Based on the legal decision from our counsel; which I happen to agree with, this is not the right forum for denial but it is the right forum for placing restrictions on the license. My motion would be to renew the license with conditions. The first one: The occupancy limit is 200 as per testimony from Mr. Vincenti and what the placard with the CO that was issued. There has been no change in that and you should understand that until you get an appropriate zoning variance and other approvals from the fire department – the license carries a 200 persons limitation. The third condition would be...

Councilman Testino: The second one would be that there would be not change until there is appropriate approvals to the 200 occupancy limit.

Councilman Testino: The next condition would be that there be a configuration of floor plan that was approved as the building permit and that the table and chairs are to be in an established configuration as approved. The fourth condition would be that there be no valet until you receive appropriate approval and waiver from our ordinances. I agree with Councilman Calogera that there should be additional conditions, there should be parking lot security and door enforcement for the occupancy limit. I would move that as an additional condition. I also agree that if this spills out into the roadway, you should be required on an as needed basis to have roadway security. With those six items that I have enumerated I will move for the renewal.

Mr. Vincenti: The important thing to understand here in relationship to these conditions are that these three conditions recommended by the attorney are a reaffirmation of the fact that there was a prior site plan approval and that all the zoning and building permits were issued under the assumption that you were dealing with a prior use that was approved on that property. The fact of the matter is, what created the problems was the applicant did not carry out a use that was consistent with what was prior on that site and which was portrayed in the basis of the building permit. Our ordinance indicates that any change of use triggers a new site plan approval and we would then open up zoning issues as to whether or not this is a conforming or non-conforming to the zoning on that property. If this applicant continues to operate contrary to the prior permits, this township has within its authority, enforcement rights that you can undertake outside, separately and distinctly from the liquor license renewal.

Councilman Calogera: I would like to see added a requirement that the applicant submit a security plan that must be approved by our police chief. There will be fluent needs there and depending upon the parking – I think that this needs to be treated like we treat the other clubs and let them submit a plan.

Councilman Testino: Assuming that the legal department says that's an appropriate amendment I will accept it. I will amend my roadway suggestion to be as recommended by the Chief, upon submission of a security plan.

Councilman Calogera: I want to know how many people are going to be stationed on the premises and in what capacity, along with their hours and days of work. We need to know that the applicant is addressing these safety issue.

Councilwoman Panos: I believe that this was a restaurant use last time. If someone goes into the club two nights in a row and are told that the kitchen is closed, are they in violation? Is was said to me one night, they said the chef quit and the kitchen is closed.

Ms. Berlen: That is outside of this, there are reasons that kitchens are closed.

AUTHORIZING THE RENEWAL OF BREAKFAST CLUB 80, LLC LIQUOR LICENSE NO. 1209-33-025-003, WITH CONDITIONS FOR THE YEAR 2003/2004

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

WHEREAS, the Township Council of the Township of Old Bridge, County of Middlesex, State of New Jersey, has received an application for renewal of the Breakfast Club 80, LLC, Liquor License No. 1209-33-025-003; and

WHEREAS, the Council is required to act upon renewal on or before June 30, 2003; and

WHEREAS, due to various issues and events that have caused concern among Council members as to whether this liquor license should be renewed for this Licensee, the Licensee received an ad interim permit from the Division of Alcoholic Beverage Control to allow time for a hearing to take place before the Council; and

WHEREAS, hearings occurred before the Township Council on June 23, 2003, July 14, 2003, August 11, 2003, September 15, 2003 and October 20, 2003 with regard to the Breakfast Club 80, LLC license renewal; and

WHEREAS, on October 20, 2003 the Township Council voted to renew the Breakfast Club 80, LLC liquor license to several conditions;

NOW, THEREFORE, BE IT RESOLVED by the Township Council of the Township of Old Bridge, County of Middlesex, State of New Jersey that the license of the Breakfast Club 80, LLC, License #1209-33-025-003 shall be renewed for the year 2003-2004 subject to the following conditions:

1. The occupancy limit of the Breakfast Club shall remain at 200 unless and until the Licensee obtains an appropriate zoning variance or planning approval and fire official approval for any increase in the occupancy number.

2. The inside configuration of the establishment shall be in accordance with the approved building permit plans, permit #20023402, as it relates to the floor layout and seating and table arrangement, as specifically shown on plans entitled “Breakfast Club -60 Rt. 526 – Old Bridge – NJ – Tenant Fit Out” Sheet A-1 dated 7/16/02, revised 11/7/02 prepared by Frederick N. Fischer AIA unless and until an alternate configuration obtains an appropriate zone variance
or planning approval;

3. There shall be no valet parking at the facility until such time as the Licensee seeks approval for the same from the appropriate land use board;

4. The Licensee shall submit a security plan to the Chief of Police for his approval. Said plan shall include manpower levels, hours worked, in what capacity and where said security will be stationed on the premises and in the parking area.

BE IT FURTHER RESOLVED that the Township Clerk is hereby directed to forward a duly certified copy of this resolution to the appropriate authority at the Division of Alcoholic Beverage Control.

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

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

to adjourn at 9:00 p.m. by Councilman Testino, seconded by Councilman Baker and so ordered on the following roll call vote:

Councilwoman Panos: There was a motion and a second, can I have discussion on the motion to adjournment?