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June 26, 2012


The Mayor and Council of the Borough of Point Pleasant Beach met at 5:33 PM with Mayor Barrella and Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid present. The Municipal Clerk read notice indicating compliance with the Open Public Meetings Act.

Attorney Gertner: complaint was filed by resident (William Cleary) related to renewal of Chefs International’s Wharfside Restaurant/Patio Bar liquor license – Robert Shea, licensee’s attorney is present (Mr. Cleary was notified and submitted letter to the Clerk today indicating he was aware of the 5:30 PM hearing – Stewart Lieberman, Esq., informed Mayor Barrella on June 25th that he would appear on Mr. Cleary’s behalf – neither was present) there is no application to remove restriction that live outdoor music must cease at 10 PM – everyone was noticed for 5:30 PM and was aware it may be necessary to carry and issue interim approval, pending final hearing – advised Mayor Barrella it’s his prerogative to invite public input and questions from Council.
Attorney Shea, on behalf of the Wharfside: stands by written submission – agrees with Chief O’Hara’s report about noise in 2011/2012 – 7 situations – 5 unfounded, 1 resulted in warning, 1 disposed of – admirable operation.
Councilman Gordon: most incidents were standard and not directly related to Wharfside – per Chief O’Hara, a model business – no noise issues.
Chief O’Hara: stands by representation presented to Council last week.
Attorney Gertner: Mr. Cleary’s written submission indicates he was in receipt of Chief’s memo.
Attorney Shea: asked that Mr. Cleary’s written submission not be considered as part of the record – was not subject to cross-examination – they have an issue with the noise report promulgated.
Mr. Cleary and Attorney Lieberman arrived at 5:40 PM.
Attorney Gertner:: hearing was called for 5:30 PM – asked Mr. Shea to summarize his opening statement – explained to the Governing Body that hearing should be conducted much like Board of Adjustment or Planning Board – objector has burden – asked for brief opening from Attorney Lieberman prior to attorneys calling witnesses – explained to him that there are time constraints for other issues and that Wharfside can apply for interim approval to operate, pending final hearing.
Attorney Lieberman, representing the objector, Mr. Cleary: as long as it’s not construed that an interim approval can be relied upon to give the applicant additional rights.
Attorney Gertner: doesn’t perceive that to be the case.
Attorney Shea: it is 5:41 PM – been here since 5:30 PM – from an equitable basis, Counsel and objectors should have had the courtesy to call ahead – Chefs International has comported in all respects to any allegation that there is a noise issue - understands conditions previously imposed on the license and agreed they should remain, agreed with other representations made by the applicant over the years - understands an objection was filed by Mr. Cleary and perhaps other residents they are not aware of – legal issues include report rendered by Mr. Zwerling, received June 18th – per Counsel, Mr. Cleary and his experts had until June 15th to submit – wouldn’t have opportunity to thoroughly review it with an expert within 5 days – irrelevant, because they are dealing with facts – recapped Chief’s report – has concerns with whether the noise report being utilized to contest the renewal should be admissible.
Attorney Lieberman: requested application be denied – bar is a nuisance – very loud – history of problems since expansion 6 years ago – will call expert who took readings that demonstrate levels emitted exceed those allowable by State law and local ordinance – client can’t have regular social encounters without screaming to be heard, both day and night – what was, before expansion, a small venue has become a raucous event – under ABC law, not supposed to issue a license to something that is a nuisance – prepared to call client to testify that they are bad neighbors – matter filed in Municipal Court in March 2011 was amicably resolved with settlement agreement, but terms have not been adhered to – when looking at an application, best evidence about going forward is what the past has been – their non-compliance has wreaked havoc with his client’s quality of life.
Attorney Shea: client’s position that Mr. Cleary is in a unique position and doesn’t rise to a level of being an objector to this type of license – as a business competitor, he is charged with different type of standard in which a Council, Planning Board or Board of Adjustment can review an objection – cited RKO/Multiplex Paramus case – business competitor’s credibility and rationale in presenting evidence to Council, even in a license situation, is highly suspect – if Council permits him to testify, his credibility can be looked at in a different fashion than a member of the general public.
Mayor Barrella: asked if there is a legal authority which disqualifies Mr. Cleary from occupying objector position.
Attorney Shea: yes – client’s position is that he has a different level of proof, that he is unable to be objective as a business competitor – in the Multiplex case, a business competitor was restricted in certain circumstances from filing a prerogative writ action in NJ Superior Court.
Mayor Barrella: noted objection.
Attorney Lieberman: called Mr. Cleary to testify.
William Cleary, 49 Inlet Drive, PPB, was sworn in and Attorney Lieberman asked him a series of questions, to which he responded: rented house about 500’ across the water from the Patio Bar the summer before buying it in September 2006 – no issues while renting – patronized Patio Bar, Wharfside, Red’s Lobster Pot – had a nice restaurant and real estate opportunities in Brielle – came to PPB because he likes the area – loves shipwrecks, the ocean, boats and marinas – relationship with Patio Bar would still be compatible, if they followed the law – has never been involved in anything like this – heard there would be expansion – subsequent to buying the house, noticed bands playing loud – as years passed, bands became more frequent, louder, played beyond 10 PM – people wait for peace and quiet after listening to music since 2 PM from bands who advertise their intent to rile the crowd – when band stops, windows stop thumping, you can lower the TV and fans, and try sleep after the aggravation wears off – submitted band information from Wharfside’s website (marked Exhibits O1 & O2) – is involved in other businesses, trying to promote community relationship among businesses – tried to live and work around it - not having BBQs because he has to shout over his picnic table – was renovating the restaurant, got sick and his dad passed away – situation got away from him for about a year – as he focused more on where he was living, realized it was getting worse beginning in 2007 – more volume and frequency at least 5 days/week – 2 or 3 days so loud he can’t hear TV – can hear radio music, people talking, cat calls until after 12 AM – weekends are rowdier, but lately they are scheduling bands 5 days/week – called Patio Bar a couple of times – they hang up or say something rude – started calling Police – lately, music is lowered between the call and their arrival – called Police in May 2012, close to 12AM – didn’t want to sign a complaint – wanted it to stop – brought the officer to his bedroom, where fan and air conditioning were on – windows were rattling – had difficulty hearing each other – officer said it was ridiculous – happened later – had to leave to get some sleep and, apparently, the Officer signed complaint because of his findings – went to court – Patio Bar was being represented by Attorney Jackson, who didn’t let him know about 4 occasions that required him to go to court.
Attorney Shea: objected to anything that took place during Municipal Court – hearsay – testimony and any agreement is irrelevant to the liquor license renewal before Council – Mr. Cleary, an attorney, knows that – if there is an agreement arrived at through Municipal Court, the proper function would be to go back to Municipal Court, not here to have the Council enforce it.
Attorney Lieberman: not a traditional proceeding – no rules about procedures or particular process – supposed to be an administrative hearing where, generally, rules are relaxed – similar to Office of Administrative Law (OAL) – rules of civil procedure don’t apply – you look for relevance and credibility.
Attorney Gertner: if there is a writing produced in Municipal Court that might delineate an agreement that might affect the license, it is a court record – they can produce and authenticate it or not – noted Attorney Shea’s objection – what happened to come up to that writing might be hearsay and he would leave it to the Chairman of this hearing to allow or disallow.
Mayor Barrella: if testimony is that a conversation took place, and it’s been offered for the purpose of establishing conversation, as opposed to establishing truth of the statements contained therein, it’s an exception to the hearsay rule – should hear it for what it’s worth – noted exception.
Attorney Lieberman: produced a March 17th complaint from Mr. Cleary to Municipal Court, March 18th letter from Mr. Cleary to Mr. Jackson, and March 25, 2011 letter from Mr. Jackson to Judge Liguori, indicating the matter was dismissed and the terms of the settlement (all marked Exhibit O3).
Mayor Barrella: before hearing testimony as to something that happened in a court matter, would like to hear Attorney Lieberman’s argument as to why Attorney Shea’s relevance objection should not be sustained.
Attorney Lieberman: issue in Municipal Court is the same issue Mr. Cleary is complaining about now, noise – resolution indicated four steps that were to be undertaken – Mr. Cleary would say the agreement wasn’t adhered to – history of past experience is relevant in a hearing like this, when you’re trying to determine whether it’s likely to happen again and whether you should issue a license – legally relevant because ABC regulations say a permit shouldn’t be issued if it’s likely to create a public nuisance.
AttorneyShea: objected that he hadn’t seen the documents.
Mayor Barrella: understands Attorney Lieberman was running late, but he can’t question someone about a document and not provide opposing counsel a copy.
Attorney Lieberman: was delivered to Clerk Ellsworth this afternoon.
Mayor Barrella: as a matter of courtesy, Attorney Shea should have been provided a copy.
Attorney Shea: this relates to some representation made by Attorney Jackson to Judge Liguori, evidently involving some kind of Municipal Court action – proper forum is Municipal Court – Mr. Cleary has the right to go back to Judge Liguori if he feels some items were not justifiably agreed to or performed – it’s not to be dropped upon the Council and applicant 20 minutes before hearing is to end and have it responded to – called Mr. Lieberman’s office yesterday to discuss parameters with him and did not receive a return call (Mr. Lieberman was flying in from Israel).
Borough Attorney Gertner: Item 2 in March 25, 2011 letter could be considered part of a potential additional condition, so Municipal Court’s action dovetails with Governing Body’s action.
Attorney Shea: perpetory language by Mr. Jackson in this letter…has no bearing on what’s happening here.
Mayor Barrella: Attorney Jackson indicated his client will adhere to agreement with certain conditions (10 PM cessation of music), but without conceding that they have not been adhering to it – if the purpose of this is to establish that they have acknowledged that there is a problem, it failed.
Attorney Lieberman: it is to establish a benchmark and question what happens next – they can and might go back to court – has nothing to do with whether they should bring this up in a renewal application – would be ludicrous if Mr. Cleary did not tell you that this has not been complied with.
Mr. Cleary: that’s the point – put up with it for years, started calling Police, signed a complaint, went to court, got jerked around four times and still did what he thought was right and entered into an agreement to resolve the issue – they were going to come to his house and do objective sound measuring because it’s rattling the windows – they didn’t – he waited and listened to the music all summer – just before this, in response to other complaints, they put up flimsy fiberglass baffles – expert said they did not affect noise – no additional baffles were installed – music repeatedly went past 10 PM – music and conversation levels exceeded State regulations until 12 AM regularly for the past 4-5 years – Chef’s International didn’t contact him and he didn’t contact them, in light of what happened until then – no parameters were complied with – he put up with it for another summer and hired an expert in September 2011 – doesn’t hear music during winter, but is not going to have a BBQ in winter – like a prisonor when he has to escape into his house – has statements from 4 neighbors who agree.
Attorney Shea: objected, as hearsay since there is no opportunity to cross-examine the witness – just a piece of paper – has a right to face the person making the statement – standard procedure.
Attorney Gertner: objection should be sustained.
Mayor Barrella: sustained – asked Mr. Cleary series of questions, to which he responded.
Mr. Cleary: his business is a very high-end steakhouse – average steak entrée is $40 and wine bottle is $70 – average patron count on a given night, particularly in winter could be as low as 20 people – objective is not to bring in large numbers, but small number of discerning guests and those celebrating special occasions – seats 96, including the bar – no dance floor or live music – good restaurants bolster each other – not about food or Jack Baker’s.
Attorney Shea: cross-examination of Mr. Cleary will take longer than 5 minutes.
Mayor Barrella: (as a lawyer) always hated having his witness carried, so the other side could dissect what he said and have more time, but it’s not fair if Attorney Shea cannot finish.
Attorney Lieberman: not worried about dissection.
Mayor Barrella: held cross-examination and suggested carrying hearing until next Council meeting (all agreed, procedurally).
Attorney Shea: based on certain information Mr. Cleary brings to Council, and the fact that it is noise-oriented, there is no substantiation in anything the Police have brought to Council – Council has enough to make a determination – this is not a noise complaint matter, but a license renewal – have to comport with State requirements.
Attorney Gertner: noted Attorney Shea’s position – nothing in the law would prohibit Council, after hearing testimony, of adding further reasonable restrictions related to noise, and protecting other citizens from alleged noise after a full hearing.
Attorney Shea: reiterated position, including objection to admission of appellant’s expert report.
Mayor Barrella: since hearing is being continued, applicant has an opportunity to get their own expert – invited testimony from those in attendance.
Richard Bilotti, 101 Broadway – PPB: was sworn in and testified that he is one of the closest neighbors of the Patio Bar – has been before Council on multiple occasions about noise relating to that property – presented a bad Trip Advisor review about his motel because of the noise.
Attorney Shea: objected as hearsay – don’t know who wrote that.
Mr. Bilotti: believes it’s true – Mr. Cooper (Chefs International’s CEO) hired a firm and invited him to a meeting and offered to pay for soundproof windows and a 6’ soundproof fence at his establishment – during one previous appearance before Council, Councilwoman Tooker, who lives 3 or 4 blocks away from Channel Drive, stated on the record that she hears music over there – don’t need a decibel meter for that – he’s had meetings at which Mr. Cooper admitted he has to exceed occupancy to make money, and asked him to keep quiet about it
Attorney Gertner: asked Mr. Bilotti what he would like to see happen.
Mr. Bilotti: just wants them to adhere to lowering the noise –Wharfside and Patio Bar are beautiful until about 9 PM when crowd changes and volume goes up – multiple people have agreed.
Attorney Lieberman asked Mr. Bilotti a series of questions to which he responded: has owned his motel for 20 years – lives and works there.
Attorney Lieberman: asked if there was a time in those 20 years when sound seemed lower.
Attorney Shea: irrelevant – talking about 2012 extension, not what happened within 20 years.
Attorney Lieberman: been a problem since the expansion and is continuing – asked Mr. Bilotti another series of questions to which he responded.
Mr. Bilotti: noticed Patio Bar expansion about 5 or 6 years ago, with no permit – their attorney denied it – had photos taken from helicopter before and after – noise is always there – he is blocked by the motel, but the motel windows face the back parking lot – must raise your voice at times in the units – gets lower after bands stop at 10 or 10:15 PM – noise stops altogether at 1 AM – crowds are noisy.
Attorney Shea: complained that Attorney Lieberman was going way beyond cross-examination, utilizing Mr. Bilotti as a witness – if he wants to call him as a witness in the future, will have a lot more to talk about in cross-examination than just his general testimony.
Mayor Barrella: important to get to the truth, but must be rules in place and elements of fairness to the applicant and Governing Body – Attorney Lieberman and Mr. Cleary arrived 15 minutes late and are running on borrowed time – told him to wrap it up.
Mr. Bilotti, responding to Attorney Lieberman’s questioning: crowd is loud – upset because Jenkinson’s and Martell’s get all the attention with the quality of life issue – it’s on his end of town also, just not as big or loud - when Patio Bar closes at 1AM, crowd hangs in the parking lot until 1:30 or 2 AM talking – little shot bottles can be found in the morning – filed a complaint 3 or 4 years ago on the noise issue – ongoing – bands 5 or 6 days/week – builds from Wednesday and subsides on Sunday.
Mr. Bilotti, responding to questioning from Attorney Shea: has resided there for 20 years – appeared in opposition to the expansion – has not conversed with Mr. Cooper within the last 2 years, since the offer to buy him soundproof windows – has not spoken to the managers – appeared in objection to the license renewal in 2008 or 2009, not 2011 or 2010 – knows the Police Chief and is familiar with a few of the officers who patrol his area – has not filed a noise complaint since July 2011- officially filed a noise complaint in approximately 2009 – asked for Mr. Cooper’s cell phone number, but he refused to give it to him – spoke to Mr. Cleary yesterday and once or twice/year over the past 2 years – Mr. Cleary did not prompt him to come here – called Mr. Cleary to tell him there was a hearing because he saw it in the newspaper and Mr. Cleary told him that he was the complainant – did not send anything to Council – requested that Wharfside lower the music which would solve a lot of other problems.
Motion by Councilman Reid, to approve interim renewal of Wharfside liquor license, subject to hearing continuation on July 17, 2012 at 4PM, was seconded by Councilman Lurie and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid….YEA
Attorney Shea: important for his client to have Mr. Cleary’s report reviewed by an expert – asked for permission to get on to Mr. Cleary’s property, if needed – will call ahead of time.
Mayor Barrella: that’s fair – doesn’t want Wharfside’s expert report on the 16th.
Attorney Shea: by July 10th, if possible – will contact Mr. Gertner if he runs into problem.
Borough Attorney Gertner: legal arguments raised may create a position for summary disposition – asked attorneys to submit any papers on those issues by July 10th – reminded Attorney Shea that his client must sign and file interim documents.

Motion by Councilman Corbally, to enter closed session to discuss 1 litigation and 2 personnel matters was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid….YEA

Closed Session began at 6:49 PM and ended at 7:05 PM.

Mayor Barrella called the regular meeting to order at 7:08 PM. Present were Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid. The Municipal Clerk again read the notice indicating compliance with the Open Public Meetings Act.

Motion by Councilman Corbally, to approve the minutes of the May 15, 2012 Council Meeting, was seconded by Councilman Mayer and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA

Chief O’Hara presented the following Police Department Awards:
• Unit Citation Award to Cpl. Peter Andreyev, PFC Robert Kowalewski, PO Kyle Boturla,
Sgt. William Ippolito, CO Supervisor Michael Fioretti, Lt. Joseph Michigan and Lt. Robert Dikun
• Patrol Commanders Award to Cpl. Peter Andreyev and PFC Andrew Meany
• Lifesaving Award to SO Jerry Baker, PO Paschal Drew and PFC Frank Finn
• Award of Merit/Class C Award to SFC Robert Goessel, Cpl. Marc Distelcamp and
PFC Brian Spader


Councilman Reid: requested an ordinance restricting loading/unloading in the lane by Dollar General (Chief O’Hara: a fire lane – probably already delineated this way – need signs – should load and unload in the lot; Attorney Gertner: should look into the approval given to see if marking is sufficient).

Councilman Lurie: asked that Engineer Savacool provide cost of DEP permits for Silver Lake dredging (Mayor Barrella: must deal with restoring general health of the lake and flooding – pump station, a more ambitious project, will be held until next meeting; Councilwoman Tooker: have spoken with Mr. Savacool about this for months; Councilman Mayer: encouraged Council to think about capital budget and prioritize – asked Administrator Riehl the status of the EIT loan – letters of intent due October 1st) authorization to provide proposal for restoring health of the lake was added to agenda.

Councilman Corbally: No report.

Councilman Mayer: Finance Committee met June 19th – concerned about 12 AM bar closing impact on parking fees, court fines and hotel/motel tax – could be 5% to 25% – 5% is $165K (Mayor Barrella: could go other way if more families come – at 5% loss, still $350K more than anticipated) correct, but Mayor applied $1.2M in surplus – must be regenerated (Councilman Corbally: parking revenue in the lot could rise – suspects District 4 parking fines will outdo the $32K being given away in parking lot from 11 PM-6 AM) Silver Lake parking is one issue – impact of decreased tourism on revenues is more serious (Mayor Barrella: couldn’t move in District 4 this weekend) shortening business day by 2 hours will impact revenues (Mayor Barrella: different opinion on what business day is – if problems don’t go away with 12 AM closing, tickets will just be written at 12 AM instead of 2 AM) -discussed impact of tax appeals on 2012 and 2013 budgets – need more focus from Tax Assessor and more projections – will be in a tough position in the fall – asked Administrator Riehl to work up alternate presentations on revenues and expenses – meeting with Parking Authority August 2nd to discuss dissolution.

Councilman Gordon: June 12-26, 2012 offenses included child neglect, possession of controlled substances, stolen property and marijuana, causing false public alarm and residential burglary – for the week of June 4-11, there were 27 Borough ordinance arrests in 2010, 53 in 2011, 68 in 2012 – were 15 criminal arrests in 2010, 18 in 2011, 33 in 2012 – for the week of June 18-25, there were 62 Borough ordinance arrests in 2010, 87 in 2011, 62 in 2012 (this year, Friday was a washout), and 15 criminal arrests in 2010, 18 in 2011, 23 in 2012 – some say more arrests are due to more police, but more police also act as a deterrent; received union approval to hire a dispatcher at a lower rate – lack of full-time dispatcher resulted in almost $21K of overtime; Recreation Committee established a website, www.pointbeachrec.com, and Facebook page – busy and active – 191 kids are participating in summer camp and were successfully transitioned to Antrim School on Monday, due to rain – future events include movie nights July 13th and August 3rd, Family Social at VFW July 28th and Family Fishing Night July 21st – Recreation and Open Space Committees will meet jointly to delineate responsibilities and expenses to ensure property and equipment are properly cared for, aesthetically pleasing and safe (Councilwoman Tooker: asked about senior activities) part of family events (Councilwoman Tooker: did survey years ago – ran trips and computer classes – this year’s Senior luncheons were well-attended – should put back to the committee) hopes it leads to further discussion.

Councilwoman Tooker: gave Building Department figures for May – $3K in permits, $1,270 in licenses – a bit under last year – $72K in CO’s – about $6K over year-to-date last year – $702 in fire – well under last year – department is shorthanded – appreciated that they were working hard trying to keep up with everything – received Ms. Petrillo’s report on Weekend Enforcement Task Force – seems to be working well; Environmental Commission would like to do landscaping on New Jersey Avenue with their own money – working on issues with the lake shoreline – DEP isn’t happy with the privately-owned lawn areas – Commission would like to meet with the Elizabeth-Blodgett Association – should be a low vegetative buffer – can’t force them to do anything, but would like to ask – Commission studied our Inlet area and Manasquan’s – Manasquan has more than double our garbage and recycling cans and they are anchored with chains – our cigarette containers are working well, but people put garbage in them, they are overflowing, and there is garbage all over – one fishing line receptacles is missing a sign – had received about $11,500 in DEP grant money towards litter clean up – asked for more of that – perhaps the Comfort Station Attendant could do some cleaning up – passed around some photos [Councilman Mayer: asked if the money had been encumbered (no) and if the sand for the Inlet had come (yes) – Inlet deserves attention – should consider in next year’s capital budget; Administrator Riehl: let the Comfort Station Attendant go yesterday – currently looking for replacement] asked that clean-up be advertised as part of the job (Councilman Reid: need more substantial garbage cans, like the ones Manasquan has – ones that won’t blow around; Administrator Riehl: very expensive – about 3 times the cost of what we currently have; Councilman Mayer: should start a wish list for next year’s capital budget; Administrator Riehl: asked if you can bond for trash cans; Councilman Mayer: can bond for park improvements and that’s what you’re dealing with; Administrator Riehl: capital surplus too).

Mayor Barrella: interior inspection legislation has been advanced – complimented Assemblymen Wolfe and McGuckin; testified before the Assembly Budget Committee on June 21st to convince the Assembly and Senate to pass legislation to restore 2007 level Energy Receipts Tax over 5-years – full Assembly approved the bill yesterday – can’t understand why Ocean County legislators, particularly Wolfe and McGuckin, voted against it – hopes Senator Holzapfel will show better judgment when it goes before the Senate – encouraged all to contact Assemblymen Wolfe and McGuckin to override any veto; asked Council to voluntarily adhere to beginning and ending committee meetings within an hour of scheduled work hours – otherwise, will have to take formal action.

Administrator Riehl: Boardwalk repairs are substantially finished – DPW is soliciting quotes for a chain link fence to alleviate people jumping into sand and sitting on railing, mirroring other end of the Boardwalk (Mayor Barrella: requested pricing on wooden fence for comparison, as some on Council are unhappy with chain link); Inlet sand is scheduled to come this week; had a successful, amicable meeting with Councilwoman Tooker, Animal Welfare Committee and Brunswick Lane residents over cats; meeting with Board of Education tomorrow about solar feasibility; solicited 3 price quotes from tree companies – will have before next meeting; solicited price quotes, due July 11, on CAFRA permitting – had 3 interested Engineers; (Councilwoman Tooker: asked her to call Rich at the County as they have extra trees; Councilman Reid: questioned having to remove trees that are pushing up pavers; Councilman Corbally: Code Enforcement Officer Petrillo has been getting complaints about 7 spots for years; Councilwoman Tooker: experts are coming back with a report - Shade Tree Commission wants to know who is responsible for replacing trees when they knock up pavers; Attorney Gertner: first step is to see the report and where the issues are).

Patrick English, Point Pleasant Beach Chamber of Commerce: Board of Directors had requested a meeting with Council – only one Council Member responded – asked why (Councilmen Gordon, Reid and Lurie said they had responded; Clerk Ellsworth: there was concern about violating the Open Public Meetings Act; Attorney Gertner: suggested a committee meet first to determine the issues and whether they could be discussed in open or closed session; Mayor Barrella and Councilman Reid will meet with them on Tuesday).

Motion by Councilman Lurie, to enter closed session to discuss litigation, was seconded by Councilman Corbally and carried by roll call vote.
VOTE: Council Members Gordon, Mayer, Corbally, Lurie….YEA
Council Members Tooker, Reid….No Vote No Vote, as he had stepped out for a moment

Closed Session began at 8:16 PM and ended at 8:50 PM.

Mayor Barrella reconvened the regular meeting at 8:55 PM. Present were Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid. The Municipal Clerk again read the notice indicating compliance with the Open Public Meetings Act.

Attorney Gertner: after passage of Ordinance 2012-15 (ABC License Closing Times), certain appellants filed petition requesting, among other relief, a stay – attorneys attended a meeting with the ABC Director – all were asked to look at their positions and create a settlement – Open Public Meetings Act prohibits official agreement of the Governing Body until they meet in person at a regularly scheduled meeting – had some communication with attorneys – based on closed session discussion and the ABC Director’s request, Council will discuss a possible settlement, which would not be effective unless the appellants agree – implementation would be through a temporary agreed-upon consent stay.
Motion by Councilman Lurie to revert to a 2 AM closing and take the $160K for 5 years was seconded by Councilman Reid and denied by roll call vote.
VOTE: Council Members Mayer, Lurie, Reid***….YEA
Council Members Tooker, Gordon*, Corbally** and Mayor Barrella****….NAY
*Councilman Gordon: doesn’t know how they can vote on this after being accused by businesses, fellow Councilmen, citizens and the Governor as being extortionists – being put in a position to take the money, to be bought, so they can continue to burden the services of our taxpayers.
**Councilman Corbally: businesses and their lawyers said nothing about residents – was all about them – the money – nothing about changing business practices and adapting to be better neighbors – offered money to put a cop on every corner so they could do business as usual – that won’t solve the problem.
***Councilman Reid: when a government entity tells people they will close them at 12 AM if they don’t get a certain amount of money, that’s extortion – was not in favor of that, but was for negotiations and the $160K to pay for extra police to ensure quality of life in Districts 3 and 4.
****Mayor Barrella: there has been much made of $160K – $40K represents Special Events and had nothing to do with additional late night police patrol – comes to $3/month on the average house – some would love to see Council take the money and move on, but sometimes that’s not the right answer – has immense respect for the principle stand 3 Council Members have taken – understands the other Council Members’ position, but the choice is between a principle stand and $3/month.
Motion by Councilman Corbally to offer a closing time of 1 AM, subject to the appellants’ agreement was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon*, Corbally, Mayor Barrella**….YEA
Councilmen Mayer, Lurie, Reid….NAY
*Councilman Gordon: not asking for any money – presenting this in the true spirit of compromise.
**Mayor Barrella: that’s with the understanding that this is subject to the appellants’ and the ABC Director’s acceptance – if there is no acceptance, the Director will make a decision, we will move forward, and the Director and we will live with the consequences.

PUBLIC PARTICIPATION PERIOD (Non-Agenda Items, First Reading of Ordinances and Resolutions) OPENED AT 9:07 PM

Robert Dixon, Pt. Pleasant Beach (PPB): asked if the Director can change what was voted on (Attorney Gertner: Council has just authorized a potential settlement –conference call with the Director scheduled for tomorrow – if appellants agree, he will craft an interim stay, based on the authority he has been given by Council) just gave up $160K for 1 hour – complemented Councilman Mayer for his committee report, stating this would hurt all businesses in PPB – no one knows the real impact –houses in District 4 were assessed at the height of the market, taxes went up, and now families can’t afford to rent there – early bar closing will drive people out or back to their houses and if they violate the animal house ordinance, the landlord won’t be able to rent next year – people are barely getting by – PPB survives on tourism – Council is rolling the dice – people on the beach at 6 PM are different than those who are there at noon.
Dave Cavagnaro, PPB: thanked Council for fair compromise; thanked DPW, on behalf of Beautification, for delivering mulch and picking up garbage from garden spots; at last Council meeting, protesters piled signs at the elevator, making it difficult for the Clerk to get out, and left stuff for her to clean up – suggested a camera in the lobby; parking plan is working – in 2002, County allowed Seaside to lease spots on County roads – asked how County Administrator could not know and why Freeholders didn’t mention it – if Freeholders are ignoring PPB, surprised Council isn’t outraged about how they and the community are being treated – asked that signs be placed on County roads – County can take legal action and explain their position to a judge; other towns expressed concern that early bar closings in PPB will push intoxicated people there to drink – should contact their bars to see why patrons are leaving intoxicated, have drunk drivers arrested, and mind their business where PPB is concerned.
Vince Castin, PPB: thanked Council for moving on Silver Lake; asked for an update on the ball field (Councilman Corbally: will speak to Engineer Savacool tomorrow and have some resolutions by next meeting – took pictures of Woman’s Club lot, which has to be fixed – holding back money) asked what will happen if contractor refuses to fix the field (Councilman Corbally: will find someone else).
Kristin Hennessy, PPB: dumbfounded that 4 Governing Body members have put PPB on the hook for policing the Boardwalk business district – asked Mayor Barrella where he stands on securing alternative sources of non-tax revenue (Mayor Barrella: still working on it –can’t put price on quality of life – money was less important for 4 Governing Body members than moving PPB in the right direction) asked if there was a quality of life problem in 2007 when he ran for office – gotten worse in the last year - Boardwalk offered to pay their fair share (Mayor Barrella: PPB’s future will be Seaside, if not stopped here – that’s what the majority of Council has taken a stand against); asked the status of red light cameras (Mayor Barrella: State’s position is they are illegal) disagreed – State is investigating 62 of the 83 cameras in NJ which were said to have calibration problems – asked what happened to the pilot plan (Administrator Riehl: issued RFP – 1 company came in and was accepted – voluminous paperwork has to go to DOT; Attorney Gertner: stay was recently issued on accepting new applications – firm that accepted the RFP is going through the paperwork process – didn’t process it quickly; Councilman Reid: DOT Commissioner approved a certain number of pilot projects throughout NJ – PPB was to be in the next group – hasn’t released any more) unfortunate for taxpayers, from financial and safety standpoints, that the wheels of justice move slowly.
Marilyn Burke, PPB: thanked Councilman Gordon for 2010/2011/2012 crime comparisons; asked Councilman Corbally if money allotted for ball field would cover it or if more debt would be incurred (Councilman Corbally: hopes it will cover) asked for anticipated completion date (Councilman Corbally: local umpires said the PPB field holds more water and they have cancelled more games in PPB than at other fields – dirt fields are being re-graded – sod on the Major League boys field must be pulled up and it has to be regarded – Engineer believes $25K would cover it, but talking about holding $50K) when she worked in business they didn’t pay for a product that was not up to spec – asked who is responsible for how the land should be raised (Councilman Corbally: contractor was off by a little on the Engineer’s specs – as novice believes fields are flat); ordinance to charge bars by occupancy to stay open past 12 AM indicates it wasn’t a quality of life matter (Attorney Gertner: central to pending litigation – asked Council not to address; Mayor Barrella: best indication of legislative history and intent is an ordinance’s statement of purpose – have always been clear).
Tom Davis, PPB: not an easy decision – most think this is the right path – Council took the ABC Director’s advice and made a compromise – hopes it will be considered and lead to positive changes; asked Councilwoman Tooker if the weekend enforcement announcements got mailed (yes).
Frank Kinneavy, Frankie’s Bar & Grill: proposed formation of fact-finding commission, made up of representatives from Council, Police, restaurants, bars, and District 4 residents, to observe quality of life problems, determine liability, solve and eliminate them – being asked by ABC Director to work together – there are answers – been in business 31 years – putting professional reputation on the line – lot happening on the Boardwalk besides bars – problems coming from different areas – closing times don’t matter – need management principals – asked that his proposal go to the ABC Director.
John Morrongiello, PPB: asked if decision on the compromise is a resolution, ordinance, or arbitrators’ award (Attorney Gertner: gives him authority as to what Council would agree to as potential compromise to the ordinance and ongoing litigation) questioned ordinance amendment procedure (Mayor Barrella: asking if public should have been allowed to comment prior to vote; Attorney Gertner: not required – if accepted, proposed ordinance to implement potential agreement, would have first and second readings) asked if it would get rid of litigation (Attorney Gertner: hopefully – if accepted by appellants, would come up with temporary stay since Council can’t move the ordinance from 12 AM to 1 AM without 2 properly advertised meetings – stay would have criterion, with consent by all parties, and Council would move on the amendment – if not accepted, litigation would continue, would go through discovery, and would be a contested matter, probably referred to the OAL – if there is a stay of the ordinance enforcement, would revert back to 2 AM closing, referred as a litigated matter to the OAL, and Council could determine whether to ask for an expedited appeal – if there is no stay, appellants would determine if they want an expedited hearing through the OAL or wait for discovery – will have decision by month’s end – if 1 AM closing is agreed to, would utilize the Director’s powers to implement it on an interim basis pending ordinance approval).
Stephen Schneider, PPB: supports fact-finding mission – hasn’t seen Mayor or Council on streets after midnight to get a grasp of the issues – asked Councilman Gordon for delineation, by district, of nighttime crimes (Councilman Gordon: 45% took place 11 PM - 3 AM in May – not broken down by district – will ask Chief O’Hara to differentiate) asked how impact of increased Police presence has been perceived by residents and tourists – last year, condition worsened over 3 months – don’t know what’s going to happen and decisions are being made that will affect bars in December, when there is no problem – Mayor has been on a mission to quiet the Boardwalk for years before quality of life issues.
Al Varosi, PPB: supports District 4 parking regulations – adjustments have been made to the plan, such as opening up Lake Little Silver lot – would like to see relief granted to Marine Commercial District, for commercial fisherman and charter boats (Mayor Barrella: asked Administrator Riehl if requests for employee parking placards have come in from that area; Administrator Riehl: had requests from Queen Mary and the River Canyon Club; Mayor Barrella: they are available for the asking).
Motion by Councilman Lurie, to close public participation, was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie and Reid….YEA

PUBLIC PARTICIPATION PERIOD (Non-Agenda Items, First Reading of Ordinances and Resolutions) ENDED AT 9:46,PM.

Clerk Ellsworth added 2 items to agenda and corrected items 1/j and 1/k.; Councilman Gordon presented concerns of Kitty Stillufsen, Red’s Lobster Pot owner, about how the timing of item 1/i and the fact that is open only to residents will impact her business – presented concerns to Recreation Committee – they are holding to it since it’s only one Saturday and they will encourage all to either walk or ride their bikes there.
Motion by Councilman Lurie to adopt resolutions covering items listed below, was seconded by Councilman Corbally and carried by roll call vote.
a) Authorization for emergency services personnel to participate in AFLAC insurance programs
b) Payments to Bills Work Clothes for special and parking officer uniforms ($3171.28)
c) Payment to Smith & Warren for badges ($2685.70)
d) Payments to Pt Pleasant Bicycle for bikes and bike repairs ($9489.66)
e) Approval of sewerage relief request
f) Authorize Borough Clerk to draft ordinance establishing handicap parking space
g) P Os to American Uniform & Supply for police uniforms ($16,020.80)
h) Approval of Payroll #12 ($303,362.69)
i) Approval of Recreation S/E app for ‘Family Fishing Night’ on 07/21/12
j) Approval of Recreation S/E app for mid-summer “Family Social” on 7/28/12
k) Approval of Recreation S/E app for “Family Movie” nights on 7/13 & 8/3
l) Authorize annual N J Environmental Federation canvass
m) Payment to Denise Sweet from Bd of Adj escrow accts ($400)
n) Progress Payment #1 to Utility Innovations for work completed on sanitary sewer project ($77,786.52)
o) Approval of request to move driveway north to accommodate new garage construction and denial of
request for second driveway opening
p) Payments to T&M Associates from Bd of Adj, Plan Bd accounts ($2969.16)
q) Payment to Pedroni Fuel for diesel fuel and no-lead gasoline ($35,872.10)
r) Increase bid threshold due to previous appointment of Qualified Purchasing Agent
s) Approval of computer generated vouchers ($185,557.83
t) Payment to Turf Equipment for Toro ‘Groundsmaster’ mower ($17,145.94)
u) Payments to T&M Associates from developer escrow accts ($2025)
v) Approval of revised park salaries (Closed Session)
w) Authorization for Borough Engineer to prepare scope and budget for Little Silver Lake project to
restore the health of the lake
VOTE: Council Members Tooker (items 1/a-d and 1/f-u), Gordon, Mayer, Corbally, Lurie and Reid….YEA
Councilwoman Tooker (item 1/e only)….Abstain

Attorney Gertner: requested that Ordinance 2012-21 be carried so he can coordinate with Councilman Lurie to get hard proposal out on enhanced enforcement zones, and review some specific items in Section 2.6, per Councilman Mayer, to be sure everyone is on the same page – wouldn’t have to re-advertise.
Motion by Councilman Gordon, to carry Ordinance 2012-21, was seconded by Councilman Mayer and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA
Councilman Lurie: asked about getting someone certified in noise (Chief O’Hara: reiterated comments from last meeting; Attorney Gertner: if you start using noise certification, ordinance would have to be approved by DEP – trying to clean it up as more of a nuisance ordinance – would make it more easily enforceable).

Ordinance 2012-23 (Seasonal Rentals) was considered on second reading. Public hearing was opened, held and closed with no member of the public wishing to be heard.
Motion by Councilman Gordon, to close the public hearing and adopt Ordinance 2012-23, was seconded by Councilman Corbally and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA
Attorney Gertner: thanked Council for passing this – helps mimic State statute – reminded Council about noise ordinance and special enforcement district in relation to Animal Houses – if Council wants it implemented next year, must pass it this year, so proper notice can go out.

Ordinance 2012-25 (Dispatcher Salaries) was considered on second reading. Public hearing was opened, held and closed with no member of the public wishing to be heard.
Motion by Councilwoman Tooker, to close the public hearing and adopt Ordinance 2012-25, was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA
Councilman Lurie: thanked Administrator Riehl (Mayor Barrella: also TWU and Union Representative Brodeur – starting salary is $15K less than current sliding salary, enabling position to be filled, eliminating overtime).
Motion by Councilwoman Tooker, to appoint Daniel Marsh to the position of full-time Dispatcher was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA

Ordinance 2012-26 (Road Opening Infrared Patch requirement) was considered on second reading. Public hearing was opened, held and closed with no member of the public wishing to be heard.
Motion by Councilman Lurie, to close the public hearing and adopt Ordinance 2012-26, was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Tooker, Gordon, Mayer, Corbally, Lurie, Reid….YEA


Mr. Goodale, PPB: asked why his request for a second driveway was not approved (violates Borough Code 14-3, which calls for 1 curb cut per property, and it would not be 5’ from property line; Attorney Gertner: 2nd curb cut would require a variance; Councilman Mayer: advised him to speak with Ms. Petrillo).
Dave Cavagnaro, PPB: neighbors moved in 2 months ago and embraced living close to the Boardwalk – 1st weekend, couldn’t sleep with windows open – heard screaming, saw people urinating in the street and on neighbor’s property – 2nd weekend was similar – by the 3rd weekend, had a 6’ fence in their yard with locks – about a week later, got central air, so they could close their windows – are now considering security cameras and lights, and counting the weekends until September.


Upon motion by Councilman Lurie, with second by Councilman Corbally, meeting was adjourned at 10:05 PM by consent of Council.

TRANSCRIBED BY: Eileen Farrell, Deputy Clerk

ATTEST: Maryann Ellsworth, Municipal Clerk

Published January12, 2013 | Council Minutes | 1498

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