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April 9, 2013

COUNCIL MINUTES

Public hearing for reconsideration of place-to-place transfer of Alcoholic Beverage Control License 1525-44-021-006/Wine Point, t/a Wine King, was called to order by Mayor Barrella at 6:05 PM. Present were Council Members Reid, Cortes, Corbally and Mayer. Council Members Gordon and Tooker were absent. The Municipal Clerk read the notice indicating compliance with the Open Public Meetings Act.

Borough Attorney Gertner: Borough has been involved in litigation regarding this particular transfer for some time – recently, the administrative law judge has determined that the manner of measurement between licenses was incorrect – also made a determination on how to measure, which would permit the proposed transfer – the second half of the issue of litigation that awaits determination are some safety concerns that were raised during the initial hearing – the Council, at the time of the initial hearing, relied on some of that information to make a determination not to approve the transfer – while awaiting that particular determination, the Borough engendered to enter into settlement negotiations with the license holder, regarding the transfer, and due to an abundance of caution, because there’s not necessarily a requirement to have notice of the transfer, understanding there was an objection at the time, scheduled and noticed this hearing, which gives the applicant and any potential objector an opportunity to be heard prior to the Council making an ultimate determination on whether or not to approve the transfer by settlement prior to the judge making a determination.
Mayor Barrella: to make the record complete, the action that prompted the original litigation was Council action that took place in 2010, I believe.
Jason Mandia, Attorney for Wine Point: August 23, 2011
Attorney Gertner: proposed beginning with a brief summation from Jason Mandia, who represents the license holder in the transfer,
Council Member Gordon and BA/CFO Riehl entered the meeting in progress at 6:16 PM.
Attorney Gertner: Diana Anderson is here representing the objector – the record is replete as to what occurred before.
Attorney Mandia: (entered A1 into evidence and provided a copy to Attorney Anderson) as Attorney Gertner related, have discussed reaching a settlement agreement that is mutually agreeable to both the Council and my client in regard to the denial of the transfer – at the time of the denial there were three issues – the first two were in regard to the proximity ordinance – those two issues have been decided through the determination of the administrative law judge as to the interpretation of measurements under the ordinance - the final denial was based on health and safety concerns which were based on public objection and items cited in a letter from Lt. Dikun – those items in Lt. Dikun’s letter were proximity to the train station - although he cited that there weren’t any major issues at that point, he was concerned with the proximity causing issues at a future date – the other issue in Lt. Dikun’s letter was traffic concerns – in regards to traffic, in the case of A&P v PPB, the court did find that traffic is not a reason to deny a license transfer - that being said, there was a traffic expert report presented by KZA, at the time, that showed there’s no detrimental impact by citing of the license at that location – putting that aside, we’re here on settlement discussions – so, my client would like to address certain ideas on how to control what may be a perceived traffic issue, regardless of what was presented prior – in A1, you’ll see there’s certain presentations for placement of signs that can direct people to parking lot behind the building – that parking lot does have control by the landlord – another sign we could put forth, if the town wanted it, is a sign for no double parking in those zones – if the town is worried about someone parking and running in, we can put signage up in that regard to alleviate those concerns – in regard to the proximity of the train station, it’s difficult to narrow down, because we really didn’t have a definite, there were no issues there – they were worried about issues that could be created in the future – so, it’s hard to determine how those issues would develop – another way to address that is with more signage in our store and, if the town wanted, we could put signage at the station, as well, in regard to your ordinances and public intoxication laws, open container laws - to notify the public, we could have them by the register – we’re a package good store, for off-site consumption only – there’s not going to be people wandering out of the location being intoxicated – if an intoxicated person comes in, we cannot serve that person or sell to that person – we are in complete compliance with that law – my client can testify he’s involved at another location and they have no issues at that location and had no issues with any of these items – but we can maintain that signage at the store and at the train station if you prefer to try to alleviate those concerns - forced to close at 10 PM so you’re not going to have people wander in and getting that last six pack of beer at 12 o’clock and going to the train and causing a problem - it’s just not something that’s going to occur in this situation – in the A1 packet you’ll also see a rendering of the front of the store – it’s a very good landscape – it’s going to be a very good project for that block – that is a main block and it is something that is needed there to really finish it – it’ll be a nice façade – of course, we’re open to any suggestions that the Council may have as to how you think we can control this in the future or, if there are problems, obviously, we come back every year for our license renewals and we can discuss them at that time, as well – if you determine that the signage we have isn’t proper, it’s not working, if additional is needed, if less is needed, if there’s an idea that’s come up that you wanted us to try, we’d be open to that.
Attorney Gertner: will be part of the settlement, but isn’t it true that you have to go before the Planning Board, as well, as this is a revised site plan.
Attorney Mandia: my understanding is that we are going to have to get site plan approval – so, at that time, they would review, obviously, our lay-out, our doors, our façade – our parking would be subject, at that time also, for review – so, we do have another step we have to go through.
Mayor Barrella: asked why that step was not the first step taken – why were they here first
Attorney Gertner: you can approve or disapprove the liquor license transfer – they want to do certain things, changing the actual store front, that requires an amended site plan – if they chose not to make changes to that site, they could open because it’s a permitted use in the zone.
Mayor Barrella: so they don’t need Planning Board approval to open up if the Council approves the license transfer (No) but they need it because of the change they’re going to make to the physical plant.
Attorney Gertner: so that, if you were inclined to approve the transfer, for instance, subject to the submissions they have made, you can at least have the transfer subject to approval to open.
Attorney Mandia: one thing I’d like to point out, in the settlement agreement we proposed we did attach the façade that’s in your A1 package and having to be substantially in compliance when we go to the Planning Board – it’s not a bait and switch here where we’re looking to do something different.
Attorney Gertner: they’ve already made that representation.
Councilman Gordon: asked if the Planning Board was going to approve strictly the exterior or is there any interior work
Attorney Mandia: it’s going to be our whole layout – the interior layout is probably subject to fire code and they’ll look at that to make sure that’s in compliance – and the electrical
Councilman Gordon: what I was leading to is that you could conceivably open your store and work on your facade later – asked if they were going to wait until they had Planning Board approval to move forward.
Attorney Mandia: we are going to wait and that’s part of the settlement agreement
Councilman Mayer: asked about signage (Attorney Gertner: we can make the recommendation, obviously - for instance, the signage on Route 35 would need State approval and to some extent the property over which you have no direct control would be resolution compliant but you can make those recommendations) I would have expected the signage would have been on Arnold
Councilman Cortes: a County road
Attorney Mandia: there's no set place where it could be - we wanted to work with the town because obviously you might not want it in certain locations
Mayor Barrella: I assume that if the Police Department (PD) decides we need X number of signs, and they should say whatever they should say, that your client would be prepared to absorb the cost of that
Attorney Mandia: that's correct
Councilman Reid: I just hate to see all kinds of signs down there
Councilman Gordon: I don't think we need the double parking sign (Mayor Barrella: that's something I think we should leave to the Chief) I understand, but my input is I don't think we need it - frankly, we don't have it anywhere else - why does a liquor store promote double parking as opposed to drug store or smoke shop or whatever the case may be - I just think it's overkill in that regards
Councilman Reid: I agree
Councilman Cortes: I agree, too, but if we end up getting from the PD that there have been…
Mayor Barrella: we've got a representation that, if in fact, the PD deems it necessary that Mr. Madia's client will comply with the recommendations of the PD
Attorney Gertner: and you can make that part of a resolution of approval
Mayor Barrella: given the nature of this, I don't necessarily know - we don't need to take testimony from anybody on this (Attorney Gertner: not necessarily)
Councilman Corbally: there's a sign ordinance in town - I'm sure your client knows that they're not going to be able to fill the front windows of the store with all the signs, from top to bottom, of what's for sale (Attorney Mandia: we're going to be in compliance with all ordinances in town) like the other liquor store, A & P Liquors - I wouldn't want that on Arnold Avenue.
Attorney Mandia: I understand - the Planning Board would look at our signage, as well - would be subject to their approval.
Mayor Barrella: called Diana Anderson, Attorney for the original objector.
Attorney Anderson: my client has the same concerns regarding the traffic and we've now been handed something today, which I'm assuming the Chief has not reviewed and had any response to, other than we've all been handed the same document today - so we're asking to look at traffic concerns with something that we've not been given the opportunity to review before - I'm disturbed because I read this proposed settlement agreement (Councilwoman Tooker: joined the meeting in progress at 6:19 PM) that states that the Borough has further reviewed the health, safety and general welfare issues raised in the denial resolution with the PD and Wine King and is satisfied that now those issues can be mitigated and/or alleviated for the proposed new location by working with Wine Point in a mutually beneficial manner - I would just like to know what solutions, what suggestions, what resolutions, what discussions occurred and what were the proposed changes that the PD asked for and does this report address the concerns that were raised by the PD.
Attorney Gertner: as part of the settlement, what was considered was the traffic flow and some of the concerns raised over not settling the proposal - we've also got assurances from the applicant that they will comply with police recommendations to move forward and that is up to the Council to determine whether or not those promises and assurances plus the added promise that the Planning Board is going to have an opportunity to review traffic, as well, with potential additional police input - the question before the Council, then, is that sufficient to settle because of the totality of the circumstances.
Attorney Anderson: I appreciate that, but my question is more specific - what things came out of this meeting between ….
Mayor Barrella: I'm going to answer your question with a question - because before we get to that entire discussion, Mr. Mandia raised the point and cited the A&P case that traffic is not a basis for - you're response to that
Attorney Anderson: my response to that is that I don't agree with his reading of Lt. Dikun's report that it was all about traffic - Mr. Mandia suggested that the concerns raised by the PD were concerns in the future - the report, that was drafted in 2009, says permitting a package goods store in what can be the busiest single block in the Borough that often sees substantial back-ups and delays due to train arrivals and departures, makes little or no sense and puts the pedestrian, cycling and motoring public at great risk - there's nothing about that statement that indicates those are future concerns that are being raised about the placement of a new business - that indicates, to me, those are current concerns about existing conditions (Attorney Gertner: I disa….) my question, as a follow-up is, if in fact, a meeting between the Council or some Council members, Wine Point and the PD has occurred and the police have raised suggestions - if the police have an input, in say, the things they're suggesting are not sufficient, is this Council, then, going to respond and say we're not approving it - because I don't want to, again, put the cart before the horse, if we're going to condition this on approval of the suggestions and applying to those suggestions of the PD, I'd like to see those put together - I'd like the PD to have a chance to review them, come back to the Council and say, he wants to do XY&Z - we said AB&C, we're not agreeing and suggest you don't approve - or, he's in compliance - the signs, not signs - even, now, in five minutes of looking at this report, we have disagreement about where the signs should be - so we're going to approve it and then do what - kick it over to the PD who has no authority to un-approve it - I just want to be sure we have all the pieces together.
Attorney Gertner: the issue, and this is to some extent on the advice of Counsel, both myself and the Counsel who has handled the matter, is that, under the totality of the circumstances, we have a settlement agreement, a proposal, and the idea that the PD should have the opportunity to opine on how to make that corner safer, if in fact this, by the way, permitted use ultimately is transferred there - because the Council has already spoken, to some extent, by matter of zoning - the use is permitted - if the use is permitted and specifically traffic, as a singular issue, is not sufficient to deny the transfer of an application - the Council is really, in my opinion, weighing whether or not, under the totality of the circumstances including the fact that the police do have concerns at particular sites and locales, does the approval of the settlement vest in the Council through its public safety, through its PD, sufficient opportunity to protect the health, safety and welfare - and that's really the issue in this debate for them, being the Council, whether the specific discussions or negotiations, really at this point because it's in litigation, is not directly relevant, in my opinion.
Attorney Mandia: asked to make one other point
Mayor Barrella: let Miss Anderson finish
Attorney Anderson: my concern here is that you're proposing a settlement that makes specific reference to certain things being addressed or resolved and I would like to know how they are addressed or resolved - I have the transcript of the hearing in which people raised issues - Council members raised issues - the busiest corner in town - leads to other issues and problem - we're looking at the overall safety of the public - I went through this transcript and there are instance after instance of Council Members raising traffic, safety, pedestrian, congestion, all of those concerns - now we're saying we've discussed it and they're resolved - I would just like to know what's changed - I live right here - I see the same traffic incidents - I see the same problem when I drive down the road and I try to make a left at Europa and the train is there and you're trying to turn and the pedestrian traffic is flowing - I do that route every day - I know that come summertime I don't go and turn up 35, I go up River Road to avoid that intersection - I don't know what has changed between our last hearing and today that now there is no longer an issue and if it's not an issue, are we saying that the report, at the time, that Lt. Dikun prepared there was some additional information or additional thing or we're not saying that's a concern anymore - it was a concern and now it's not and I just want to know what's changed.
Mayor Barrella: I think, in part, what's changed is that there was a recommendation from the Borough Engineer as to the way measurement took place which was a separate legal reason for not approving - then there was also those concerns expressed by members of the Council that was a separate reason - it may very well be that the decision, on what was the major issue in the case, may have prompted a desire to just resolve this and for the Borough to just move on.
Attorney Anderson: I understand what's the Borough's desire and we had this entire discussion with Tom Gannon, at the time, and you posed that exact same question - if we get over the first threshold question of whether or not the measurement is right, then what happens, and the answer was then we address the safety and the conditions and the traffic and the congestion - so, we've done exactly that and now here we are, and I'm sorry Mayor, but basically, I see it's resolved because we say it's going to be resolved - I don't hear the Chief saying I've had a meeting, I'm okay with it - he was handed a report, today - luckily it doesn't really say very much.
Attorney Gertner: this is not a report, this is a power point presentation - I don't want it to be misguided….
Attorney Anderson: it doesn't say very much - if the issue is going to be there was a traffic issue and now it's resolved, I think the public has a right to know what has changed, how was it resolved and, if the PD doesn't feel it was still resolved, does that mean that the application is going to be denied.
Councilman Gordon: asked, if this wasn't a liquor store but an ice cream parlor, would you have the same issues (probably) we have discussed that and said regardless of what goes in there, there are going to be people coming in and out - so, by using your argument, we never can put anything in there at all.
Attorney Anderson: I don't disagree with you on that - that's not my argument at all - my argument is, the application was denied by this Council for two reasons, a measurement issue and a health, safety and traffic issue - now we've resolved the measurement issue and you're saying to me the traffic issue is resolved - and I would like to know how it has been resolved.
Attorney Gertner: one way it's resolved, under the settlement agreement, is the fact that the applicant has determined that before they move, they're going to go to the Planning Board where traffic issues can be further discussed, in quite frankly, the proper forum.
Attorney Anderson: and does the PD have input in that and if they don't do the things that are suggested, does the Planning Board have the ability to cause that application to be denied
Attorney Gertner: the Council can ask, that upon the submission of the application, the PD render an additional report for the Planning Board to consider
Attorney Anderson: maybe I'm reading the proposed settlement agreement wrong - I don't think you drafted this, but it seems as if there were health, safety and general welfare issues that have been resolved - if that's poor wording and that's not the way the settlement should read, than that needs to be addressed because that leads one to believe that there have been some changes, proposals, resolutions of existing issues that I'm coming to believe aren't, in fact, in existence
Attorney Gertner: my understanding of how that was resolved is that those issues are protected for the people of PPB, because in exchange of settling the matter, the applicant has agreed - and I don't want to be in the position of advocating, per se, for the settlement - ultimately, it's up to their choice - but to address the question, in exchange for the settlement, so that there's an amicable settlement by and between the parties to the litigation, the applicant is agreed that because they are going to the Planning Board - the Planning Board has jurisdiction over traffic, safety, parking issues - and the Planning Board is in a better position because they are the professionals to review those kind of things - that those issues will be raised at the Planning Board approval and that since they've agreed that without Planning Board approval, they're not going to perfect the transfer, so to speak, the Council and the people of PPB are protected like they would in any other use - that, plus the fact that it is a permitted use in the zone.
Attorney Anderson: what you just said is contradictory, because the question was asked if they get Planning Board denial, and they're not allowed to make any changes, they're still allowed to move the use there
Attorney Gertner: but they've agreed not to do that
Attorney Anderson: well, then, that has to be part of the condition of the approval
Attorney Gertner: they've agreed not to do that
Mayor Barrella: Mr. Mandia, can you just articulate that again for the record - because nodding your head, the Clerk can't pick that up.
Attorney Mandia : yes
Councilman Reid: it sounds like we're kicking the can down the road and letting the Planning Board make the decision - why can't we make the decision - I thought that's what this was all about.
Mayor Barrella: we would be making a decision to approve the transfer, subject to Planning Board approval of the site plan – asked if Attorney Anderson had quoted what he said from the last hearing.
Attorney Anderson: think they were comments from Chief O’Hara and Councilman Hennessy.
Mayor Barrella: the part about taking it down the road – what happens if the measurement is decided.
Attorney Anderson: part of the discussion with Mr. Gannon – I didn’t quote you on that – that was part of the exact discussion because you and Mr. Gannon had a discussion – the way I understand it, is what I just told you – if the distance between the license was decreasing, and then you said did he have the power to waive it – that was the exact discussion - of what happens if we get past that issue, we’re back to traffic and safety.
Mayor Barrella: that’s exactly where we are.
Attorney Anderson: but see, again – like Mr. Gertner says, the reason I’m repeating myself, that’s exactly where we are and now you’ve decided traffic and safety is no longer an….
Mayor Barrella: this Council hasn’t decided anything – they haven’t voted yet.
Attorney Anderson: the settlement agreement appears to say traffic and safety is no longer an issue – my first question was what between this date and that date has changed and, now, I find the answer is nothing, but we’re going to have other people put input on it after we’ve already approved it.
Attorney Mandia: in 2009, Lt. Dikun submitted his report in response to a request to change the ordinance – we then came back with a license transfer application and submitted a traffic report that addressed Lt. Dikun’s general concerns, as admitted, to any business going there in regard to traffic and that report shows no detrimental impact – now it’s been almost two years, there’s been no counter report and nothing to contradict that report – where have you been for a year and a half, two years.
Attorney Anderson: but those reports were in front of the Council, were considered, and still issues were raised about traffic, safety, pedestrian crossings.
Mayor Barrella: I think what’s happening here, with all due respect, is you’re making the same argument over again.
Councilman Mayer: can you have any suggestions on the recital of Attorney Anderson’s point
Attorney Mandia: you can choose the language – we proposed a settlement agreement that hasn’t been passed yet – so the thought is that we’re reaching agreements here which is a resolution of the matter – in terms of a settlement, that’s the term I’m using, if there’s other language to dissolve….
Attorney Gertner: to some extent, I would view as a term of art but if….
Attorney Mandia: it’s a settlement agreement
Councilman Mayer: we are all familiar with the corner - of course we know there can be traffic conditions on that corner several weekends during the year – it’s also a long winter and this store is vacant – I think we’re all making our own individual judgment on that corner – there are times when it’s difficult.
Attorney Mandia: I just wanted to address Mr. Reid’s question in regard to the siting of the license and the Planning Board - any business that would go into that location that is going to do some work would have to get Planning Board approval – our difference is we need two approvals – we need approval from this Council and Planning Board.
Mayor Barrella: asked if there was any one else in the audience who wished to be heard and no member of the public wished to speak.
Attorney Gertner: you have two choices because, again, technically you did not even have to permit this because there’s a settlement agreement before you – you can deliberate and treat it as almost a new application and then either vote yea or nay on a resolution to approve the settlement agreement and transfer – or we can treat it like a settlement and, if that were the case, for fear of objections, we can present both a proposed resolution and a settlement agreement so that everyone has it in writing for next meeting, one way or the other.
Mayor Barrella: it seems to me, what little I know but what I have learned about New Jersey State law is, if we treat this as a separate hearing, then arguably someone could say that this is action on a new application and then, at that point in time, someone might have the opportunity, in a 45 day period, to file a prerogative writ action – the argument would be, no it’s not, it’s really a settlement, but either way the idea of opening up the Borough to more litigation would not be the right way to go – so I would recommend that we treat it as a settlement.
Attorney Gertner: I agree
Mayor Barrella: Bill, do you agree
Councilman Mayer: sure
Councilman Reid: it’s a settlement
Councilwoman Tooker: do you think it’s wise to change the wording a little bit – do we want it to reflect that there’s no traffic issue or no safety issue there.
Councilman Gordon: you must also keep in mind that was the opinion of a prior council – that this particular Council might not hold that same opinion.
Attorney Gertner: again, I view it to some extent as a term of art – but if the Borough is so inclined as to approve the settlement in a global context, I’m sure we can then, based on the hearing, refine the words and present it back for….
Mayor Barrella: I think we should have, in writing, the representations that Mr. Mandia’s made on the record.
Attorney Gertner: just for some clarity, I would ask that what the Council do is vote to approve the settlement, subject to memorialization of the settlement agreement, which would occur at the next meeting – that way there’s some finality to your action, as well.
Mayor Barrella: asked if everyone understand what Attorney Gertner was asking.
Attorney Anderson: asked to speak with Mr. Gertner for a minute
Mayor Barrella: called a short recess at 6:40 PM and reconvened the meeting at 6:42 PM with Council Members Reid, Cortes, Corbally, Mayer, Gordon and Tooker present.
Attorney Gertner: Mayor, that was a vote that closed public hearing - based on the previous application, the court case and the proposed settlement – at the next Council, like any meeting of a Board, so to speak, you’ll memorialize the settlement agreement in the form of a resolution for transfer.
Councilman Gordon: that wasn’t a vote; that was a roll call
Mayor Barrella: so in essence, this is more of a continuation of the original hearing back in 2011 and just a resolution of that.
Attorney Gertner: correct
Attorney Mandia: I thought this was a hearing in regard to the settlement agreement, not a rehearing of the original or a continuation.
Attorney Gertner: it closes it out, in one context, and it approves the settlement agreement.
Attorney Mandia: I thought the resolution was….
Mayor Barrella: the purpose here is not to reopen the record – but the record in that earlier hearing, together with the results in the litigation, are where we’re now sitting and we’re sitting with a loose end so to speak and this hearing is, in that sense, a continuation because it resolves that loose end, but it is not a continuation of a prior hearing – the factual record on that was closed.
Attorney Gertner: the bottom line is, even with a settlement agreement, there still needs to be a resolution authorizing the transfer.
Councilman Corbally: asked if Council could do that tonight.
Attorney Gertner: you’re doing it, but you have to memorialize it.
Mayor Barrella: the agreement needs to be tinkered with because there are certain representations.
Motion by Councilman Gordon, to approve the settlement, in a more global fashion, and to authorize Counsel to memorialize said settlement in a resolution of transfer, was seconded by Councilman Cortes and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA

Motion by Councilwoman Tooker, to enter closed session to discuss 2 contract, 5 personnel, potential litigation, attorney/client and litigation matters was seconded by Councilman Gordon and carried by roll call vote. Councilman Mayer left the room.
VOTE: Council Members Reid, Cortes, Corbally, Gordon, Tooker….YEA

Closed Session began at 6:46 PM and ended at 8:02 PM.

Mayor Barrella called the regular meeting to order at 8:12 PM. Present were Council Members Reid, Cortes, Corbally, Mayer, Gordon and Tooker. 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 March 19, 2013 Council Meeting, was seconded by Councilman Reid and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Gordon and Tooker….YEA
Councilman Mayer….ABSTAIN

NJ Hope & Healing Representatives: offered no-cost help to Sandy victims, including the services of clinical counselors and a psychiatrist – left some information behind.

David Price, Ceres Environmental: lined up to sift sand on the beach – one of 4 contractors hired by the State – 36-year-old company, specializing in disaster recovery – one of 4 major contractors hired by the Corps of Engineers following Hurricane Katrina – have done more than 100 FEMA-reimbursed projects – awaiting notice to proceed with work in PPB – have lined up equipment and spoken to local sub-contractors – left business cards with BA/CFO Riehl (Mayor Barrella: confirmed with Engineer Savacool that Ceres was the lowest-bid State Contract) explained each line item – sifting, returning clean sand to beach, taking debris to the dump – their sand screening bid was $7.88/cubic yard - the high bid was $36/cubic yard – bid prices are on the Treasury Department web site (Councilman Reid: asked how long it would take to finish the job) estimated less than 3 weeks (Councilman Cortes: asked if berm would be put back in the same place, once sifted) roughly (Mayor Barrella: important, for FEMA purposes, that the berm remain in place and not be flattened; BA/CFO Riehl: asked that authorization to retain the services of Ceres Environmental be added to the agenda; no objection).

Clerk Ellsworth added Closed Session items to the addenda.

Councilman Mayer discussed the Finance Committee’s draft of proposed ‘Non-Sandy’ Budget – has asked BA/CFO Riehl to develop the regeneration of surplus – on 12/31/12, were down $323K from 12/31/11 – wants to try to project next year’s surplus – also asked BA/CFO Riehl to project 2014 salaries – big arbitration award is coming in 2014 - wants to see where it fits in, as well as the State tax court appeals – still awaiting information from Tax Assessor Carpenter – some of tonight’s actions will impact the Finance Committee’s recommended budget – this wasn’t the budget the Committee would have recommended, absent Mayor Barrella’s involvement (Mayor Barrella: can’t predict surplus – we are weeks to months beyond where we should be because it took months for Councilman Mayer to agree to apply for a CDL loan) rating agencies regularly require municipalities to project surplus – it’s good practice – been bouncing up and down for years – salaries have taken over O&E expenses over the last few years – need a grip on it – not dealing with other expenditures – has concerns (Mayor Barrella: per DCA, this budget was supposed to be put together as though Sandy didn’t exist, tax rate determined, Sandy adjustments made and CDL loan plugged in, in order to keep the tax rate close to what it was supposed to be – Assessor gave a figure of about $150K, half of which might be old tax appeals) disputed the Mayor’s statement about Mr. Carpenter’s estimate - 28 significant State tax appeals, pending since 2009, are accruing interest and will likely settle, due to reassessment – not behind on the budget – doesn’t understand Mayor Barrella’s comment on the CDL – been waiting for them to get back to us (Mayor Barrella: need a number – goal posts continue to move, as Councilman Mayer regularly comes up with theoretical issues) presented the draft budget and thanked BA/CFO Riehl for getting it done (Mayor Barrella: disputed Councilman Mayer’s comment about salaries taking over O&E – in 2009, salary & wages totaled $5,617,306 – in 2012, they totaled $5,673,210 – an increase of less than 1% over 3 years – operating expenses were $5,972,00 in 2009, and $7,495,00 in 2012 – 25% increase - operating expenses have overtaken salary) there are shortfalls in the areas of staff supplies, vehicles – we are carrying bonds and BANs for years – last year, added striping – building maintenance isn’t getting done – O&E is suffering (Mayor Barrella: agreed, but the Governor is diverting Energy Tax receipts that would have plugged about $800K in our budget – must tell him to stop vetoing what the Legislature passed, which is to give us back this money – must replenish our workforce – Government is about service – cost of service is and will always be, primarily, salary) decline in surplus cannot continue (Mayor Barrella: surplus has gone up and down – that’s what happens with surplus) many responsible municipalities predict surplus yearly (Mayor Barrella: have utilized less surplus, percentage-wise, in the last 3 years, than in 2004, 2006 and 2007) need to focus on it, along with utilization of deferred school tax, which will become a problem when debt service drops off – need to plan for it (Mayor Barrella: there a couple ways to do that – have budgeted $100K for DPW promotions and hiring – not hiring, so that frees up about $90K – if Council hires police officer, that officer has been budgeted for in-full, so about 1/3 of that salary gets freed up – in addition, Reserve for Uncollected Taxes is higher than it would need to be, because we don’t know the impact of Sandy – could decrease that reserve and lower the tax levy by about $190K, while still having that $190K available in the future because of the levy cap banking provisions that now exist – fought with people over the years to stabilize the budget – unfortunately, Council was more interested in a low tax rate – this budget, as projected, does not have much that could change – it is under the levy cap – can be taken further under and allow us to bank that cap, if the Finance Committee is willing).

Jon Bezerra, Jr., Chamber of Commerce: in September 2012, a Tourism Committee was formed to rebrand and re-market the town – Sandy threw a curveball into things – projected that 1/3 of funds would come from Council, 1/3 from the Chamber and 1/3 from businesses – businesses were unable to come up with the money, the Chamber budgeted a portion, but was unable to come up with $30K, and Council came up with $30K – Chamber used a marketing consultant to produce a video, letting people know PPB is open for business – Council pulled back the $30K – Chamber is still trying to market the town to bring in summer tourism – requested Council approve up to $16.5K for this commercial – distributed cable company maps and marketing plan (Mayor Barrella: clarified that Council approved a 50 percent match for every dollar the Chamber raised, upon raising $60K; Councilman Reid and Mayor Barrella: concerned that there won’t be as much return on the smaller investment; Councilman Gordon: recommended holding the vote until the April 23rd meeting, when budget is crafted – all agreed).

COMMITTE REPORTS:

Councilman Reid: No report.

Councilman Cortes: still working on paperwork for the lights in Pleasure Park; Recreation Committee is discussing an open gym for volleyball and wrestling for younger kids – park program begins July 1st – still trying to iron things out with the enrichment program, so it doesn’t interfere with the park program; in Councilman Reid’s absence, he met with folks at the Shore Point Motel on Broadway – they had an issue with their water meter – he watched them fill a 5-gallon bucket with water and the meter turned 10 gallons – will pull the meter and try to straighten it out (Councilman Reid: thanked him for handling this).

Councilman Corbally: confirmed with Engineer Savacool that the Boardwalk is still on track to be finished by Memorial Day weekend.

Councilman Mayer: Finance Committee has been meeting – County Tax Board approved the reassessment – some big ramifications – assessed value dropped 23.86% from $2.4B to $1.875B – less dramatic when you compare equalized values – assessment cards are going out on the 10th or 11th – 45 days for tax bills is June 1st – also did the final Sandy assessment damage, which is $99M – all of which factors into taxes – CDL for the $99M is pending – Sandy tax assessments will hit 14 if they don’t come back online; Open Space meeting is on Thursday – needs to know what is happening with the sand under the Surf Taco building (BA/CFO Riehl: Caruso Excavating will remove sand from the Boardwalk to the parking lot, at the same rate as the first time they came in and excavated; Councilman Gordon: time is of the essence – they are driving pilings near the opening of that building – soon it will be closed off and they will never be able to get to it) asked about the volunteer releases (Attorney Gertner: will get them out for approval; BA/CFO Riehl: award for the garage door was made – they have 30 days to install).

Councilman Gordon: gave police activity report from March 26th through present – 8 arrests for offences including disorderly conduct, resisting arrest, possession of a controlled substance, including heroin and hypodermic needles, aggravated assault, trespassing, DWI, outstanding warrants – asked Chief O’Hara to provide a snapshot of trends regarding heroin in town – 12 motor vehicle accidents, 26 First Aid calls, 12 theft complaints, 2 burglary complaints and 2 calls for mischief.

Councilwoman Tooker: Education Foundation Hall of Fame dinner is Friday at the Crystal Point – former Chief DePolo is being inducted; Saturday night is Miss Point High, always a great show – 7PM in the gym; been thinking about floor area ratio (FAR) – tried to pass an FAR ordinance a couple of years ago to cut down on monstrous height houses – time has come for this ordinance [Engineer Savacool: FAR is a building coverage calculation, utilizing the multiple levels of the dwelling – currently, building coverage in the SF-5 Zone is 30% - if you have a second storey of the same level, maximum permitted FAR is essentially 60% – as levels are added, FAR gets smaller, by footprint, to provide light and air to adjoining residences – Board of Adjustment (BOA) is starting to see applications to add second floors in the bungalow zone - could be an advantage to provide guidance to the BOA for that area] asked Council to authorize looking into this (committee should bring something to Council); need a plan for Little Silver Lake dredging [Engineer Savacool: have submitted for mitigation funding, FEMA reimbursement (hopefully at 90%, but at least 75%) – were contacted for a follow-up meeting].

Mayor Barrella: attended a legislative meeting today with our 3 major beach owners – DEP made a dune presentation – letters have gone out to people along the beachfront – he drafted a letter to the State, which is under attorney review, regarding the need for the State to step in and exercise their powers to ensure dunes exist on both commercial and residential properties in PPB; has worked on budgets for PPB and is on the budget committee at Pace University – not an easy process – in 2011, budget was in place by the end of February which addressed deficits created by bad decisions in prior years – had to deal with employee meetings, furloughs, and give backs from cops – so, it can be done – Councilman Mayer is very detail-oriented – have had at least 10 meetings – needs to be done – we are well on the way – doesn’t anticipate major changes – if it stays the way it is, tax levy increase is roughly $300K, or 4% - there are ways to cut that back closer to the 2% cap, which is a figment of Governor Christie’s and Senator Sweeney’s imaginations – being within the levy cap doesn’t mean you are at 2% - tax increase could be as little as a $140K – 1.8%-2% - loss of ratable is not a function of Sandy, but of the economy – will eventually come back – must continue to do reassessments – as repairs are fixed, they will come back online – included in this budget is money for the assessor’s office – purpose is to get people back online; his concern with the Chamber’s request is that it won’t make an impact – if he thought it had a good chance to work, could look for $8K-16K in the budget – would like to speak to Councilman Reid about it.

PUBLIC PARTICIPATION (Non-Agenda Items, First Reading of
Ordinances and Resolutions) BEGAN AT 9:35PM

Dave Cavagnaro, PPB: Beautification Committee received a donation for Christmas lighting in the business district – distributed pictures of how it would look – $3K/strand is predicated on LED lights and salt air protection – would like strands on Arnold Avenue at Routs 35 North and South, Bay Avenue, and by the Elks – if ordered before the end May, there is a 30% discount – Chamber has agreed to pay for one strand – Beautification can contribute $400-500 – asked Council for $6K for the rest – nostalgic look would enhance the business district and brighten people’s spirits - shelf life is about 10 years (Councilman Gordon: will address before end of May); was recently at a BOA meeting – questions he heard were predicated on the current Master Plan, which limits homes in the bungalow community to 22’ in height – 30-40 two-storey homes currently exist on the rows – majority are below flood level and will have to be raised – this is the new PPB - bungalows have sub-standard electric, inferior insulation and life-threatening elevation – someone must take a firm step as soon as possible and send a clear direction on where we are going, whether via variances, change to Master Plan or ordinance – the longer this drags on, the harder it is on anyone trying to rebuild; asked if he missed the authorization to draft Ordinance 2013-16 (Mayor Barrella: it was drafted years ago; Councilwoman Tooker: it was 2010-45) concerned about homeowners being told they have to plant and what to plant – also, would not encourage planting anything but grass, pavers or stones between the curb and sidewalk, or someone will fall while getting out of a car, and there will be liability issues – asked that this ordinance be reconsidered.
Ann D’Agostino, PPB: glad the sand will be sifted – asked if State is paying (Mayor Barrella: doesn’t yet know – expecting an answer in 2 weeks – it’s a battle with FEMA – if FEMA says “no,” it becomes a battle with the State) asked when sifting will begin (Mayor Barrella: have the CAFRA permit – sifting will begin as soon as the contractor can start; Engineer Savacool: has indicated he will likely be prepared to commence on Monday; BA/CFO Riehl: Elizabeth Carter Association must sign the form and get it back to us or we won’t do that area); asked about easement for the Army Corps dune project – understands some language in the easement letter might be adjusted to reflect the reality of Point Pleasant Beach (Mayor Barrella: a form document was sent out by Attorney Gertner, because the Army Corps insisted – form letter doesn’t account for the fact that the beaches are not owned by the municipality and the municipality doesn’t maintain them – he told the Governor’s representative that if they want to give us $1 for every beach badge sold, the town would maintain the private beaches) concerned about signing the general form that is not specific to PPB (Mayor Barrella: advised her to speak to BA/CFO Riehl for more information; BA/CFO Riehl: dune will be 18’ high and 100’ wide in PPB; Mayor Barrella: but beach will also be replenished).
Vince Castin, PPB: asked Council to look at the lake – it’s awful – lot of work is needed – pump must be put in – asked who is responsible to get sand out of the catch basins (Mayor Barrella: BA/CFO Riehl will look into this); Ordinance 2013-16 is absurd – reiterated Mr. Cavagnaro’s.
Pat Knight, PPB: asked about Hazard Mitigation applications (will take at least 18 months; Mayor Barrella: State grant program might kick in first).
Tom Davis, PPB: suggested everyone Google FAR – serious changes are needed – there are discrepancies; asked for a synopsis on litigation against the town (Mayor Barrella: can tell him what litigation is pending, but not much beyond that; Attorney Gertner: litigation strategy is not subject to public disclosure; Councilwoman Tooker: asked if Council should ask for volunteers and board representation to work on the Master Plan – been almost 7 years since it was done; Mayor Barrella: will speak to Attorney Galvin and try to have something for next meeting; Attorney Gertner: next time it has to be done is 2017; Mayor Barrella: legally, we don’t have to do it now, but it might be a good idea to do it).

PUBLIC PARTICIPATION (Non-Agenda Items, First Reading of
Ordinances and Resolutions) ENDED AT 10:00 PM

Councilman Cortes: spoke about item 1/j – contacted Johnny On the Spot - $11,266 covers trailer with a Ladies’ Room, Men’s Room and plastic, standard port-o-potty that sits on the ground for handicap use - so, there will be 2 items down there - the trailer alone is $9,480 – when asked about purchasing, they offered to sell us the trailer, a discontinued model, for $17K – suggested leasing for this year – will stay in contact with other companies about putting something in Silver Lake.
Councilman Mayer: asked for the status of the police substation bathroom (Mayor Barrella: Chief emailed him about what to do with the substation – repair it, rent an office trailer, or make it part of the plaza renovation – must address at next Council meeting; Councilman Gordon: encouraged Council to see it – an eyesore – could be mold; Chief O’Hara: inadequate, antiquated facilities – had blueprints drawn up 7 years ago for a new building).
Mayor Barrella: item 3/a was worked on by Councilman Mayer, Auditor Korecky and Bond Counsel Rogut, and deals with bonding; item 1/b includes all spending going forward, including new hires, such as police and tax assessment help (Councilman Mayer: until July 1st).
Councilman Cortes: asked if parking machines are FEMA reimbursable (Mayor: yes).
Mayor Barrella: asked BA/CFO Riehl for the name of the gentleman at the State who was going to try and move the FEMA process along - our consultant would not let us submit anything to FEMA until she reviewed it (BA/CFO Riehl: has almost $4M in worksheets – true expenditures, not future expenditures – should get at least 50% of the 75 in a timely fashion).
Motion by Councilman Corbally, to adopt resolutions covering items listed below, was seconded by Councilman Reid and carried by roll call vote.
CONSENT RESOLUTION 1:
a) Support A-1503/S-1896 sharing the burden of property assessment tax refunds
b) Emergency Appropriation to 2013 Temporary Budget ($3,333,037.12)
c) Authorization to apply for Safe & Secure Communities Grant
d) Support sustainable State funding for Green Acres Program
e) P O to Quill for Police Dept. office furniture ($2,549.78)
f) Payment to M&M Assessment for assessment consultant services ($4775)
g) Payment to Devo & Assoc for parking machines ($332,505)
h) Award contract to Earle Asphalt for Silver Lake Lot repaving ($78,413.05)
i) Approval of Payroll #7 ($235,995.02)
j) Award of contract to Johnny On the Spot for lease of temporary inlet rest room facility ($11,266)
k) Approve Banner Permit application for Meridian Health ‘Paint the Town Pink’
campaign with authorization to extend 17 days beyond 14 day limit
l) Payments to Galvin Law Firm from Planning Board & BOA accts ($3317.50)
m) Payments to T&M Assoc from escrow accounts ($1653.25)
n) P O to Fast Lane Emergency Svc for police vehicles equipment ($6,833.75)
o) Waive late fees for fire registrations
p) Payment to Recreation Basketball Program Director ($500)
q) Water/Sewer bill adjustments (3 accts)
r) Payment to PPB Public Education Foundation for Hall of Fame ad journal ($100)
s) Payment to Derasmo Excavating for emergency water service repair ($2500)
t) Approval of ABC Social Affairs Permit for Durand Masonic Lodge on 6/22/13
u) P O to Devo & Assoc for solar powered strada for parking machines ($22,940)
v) Payment to Brick Utilities for March bulk water usage ($55,920.20)
w) Approve Banner Permit application for Alzheimer’s Assoc
x) Approve Kidney & Urology Fdn S/E app for Walk - 5/5/13
y) Approve Deborah Hospital Fdn S/E app for Flea Market/Craft Show - 6/15/13
z) Approve Cystic Fibrosis Fdn S/E app for ‘Great Strides’ Walk - 5/19/13
CONSENT RESOLUTION 2:
a) Progress Payment #2 to Albert Marine for Boardwalk Reconstruction ($93,741.28)
b) Progress Payment #1 to Bird Construction for Boardwalk Reconstruction ($69,491.80)
c) Approval of bench application at Lake of the Lillies
d) Approve Chamber S/E app for Chowder Fest on 10/12/13
e) P O to Dell Computer for 6 police computers ($5869.02)
f) Payment to State Health Benefits for employee health benefits ($112,421.40)
g) Approval of computer generated vouchers ($650,338.56)
h) P O to Beyer Ford for 2013 Ford Explorer for Building Dept. ($26,816)
i) P O to Motorola for replacement of police radios ($26,551)
CONSENT RESOLUTION 3:
a) Temporary Emergency Appropriation ($1,073,570.00)
b) Support supplement to Eminent Domain Act for dune restoration
c) Proclaim week of April 14th-20th as National Library Week
d) Approval of hydrant flushing 4/15 – 5/3
e) Provisional appointment of Ned Martin to the position of General Public Works Supervisor
(Closed Session)
f) Provisional appointment of Jack Johnson to the position of Sanitation Supervisor
(Closed Session)
g) Approval for Water/Sewer Supervisor to carry unused vacation days from 2012 into 2013,
due to an on-the-job injury (Closed Session)
h) Rescind Municipal Alliance Grant (Closed Session)
i) Provisional appointment of Gary Siculietano to the position of police officer
(Closed Session)
j) Award of contract for sand sifting to Ceres Environmental
VOTE: Council Members Reid, Cortes (except item 3/b), Corbally, Mayer, Gordon, Tooker….YEA
Councilman Cortes (item 3/b)….Recused Himself

Ordinance 2013-11 (Misc Water/Sewer Rates & Regulations) was considered on second reading. Mayor Barrella opened the public hearing.
Dave Cavagnaro, PPB: should not be the homeowners responsibility if water meter freezes; utility is not supposed to work for profit – heard comment that rates are being raised, not to make up for a deficit in Water/Sewer, but to catch up with what other towns charge.
Motion by Councilman Mayer to close the public hearing was seconded by Councilman Reid and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA
Councilman Corbally: good idea, but timing is bad – hammering folks who just got hammered.
Councilman Gordon: asked for the catalyst behind the increases (Councilman Reid: water department showed him that other towns charge more for call outs – we are bringing it up to where it needs to be) asked if this will generate surplus (Councilman Mayer: for the last two years, have been running at a deficit; Mayor Barrella: we’ve raised the rates to deal with that – asked if it’s costing more to send someone out than what we charge; Councilman Reid: yes – not charging what we should – he didn’t put this forward to make money, or even to break even) increases seem arbitrary - asked how the new charges were arrived at – shouldn’t just grab someone else’s rate (Councilman Reid: Water Department did their due diligence and went to other towns to see what they were charging) you don’t establish a rate based on what someone else is charging, but on what it actually costs the town to perform the function – maybe underselling or overselling in some areas (Councilman Reid: didn’t bring the numbers tonight – believes we are below other towns; Mayor Barrella: if it needs to be done, it needs to be done; Councilman Reid: department came to him with a real concern that the town is being underpaid; Councilman Mayer: it’s a more direct user fee – charged to people who get service – no one likes to raise rates).
Motion by Councilman Reid to adopt Ordinance 2013-11 was seconded by Councilman Mayer and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Mayer and Mayor Barrella….YEA
Council Members Corbally, Gordon, Tooker….NAY

Ordinance 2013-12 (Title 39 Rights) was considered on second reading. Public hearing was opened and held with no member of the public wishing to be heard.
Motion by Councilman Reid to close public hearing and adopt Ordinance 2013-12 was seconded by Councilwoman Tooker and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA

Ordinance 2013-13 (Repeal Ban of Phone Participation at Meetings) was considered on second reading. Public hearing was opened and held with no member of the public wishing to be heard.
Motion by Councilman Mayer to close public hearing was seconded by Councilman Corbally and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA
Councilman Corbally: requested the ordinance be revised to indicate each Council Member can participate via phone once per year, so it is not abused (Mayor Barrella: suggested it state that telephone participation cannot be a quorum; Councilman Reid: can see phone participation in an emergency, but Council is elected to be here – should schedule vacations around meetings; Attorney Gertner: suggested setting annual parameters, by resolution, at the Organization Meeting; Councilman Mayer: asked Attorney Gertner to forward him the information he received on this from the League of Municipalities, as well as his 2009 research).
Motion by Councilman Corbally to adopt Ordinance 2013-13 was seconded by Councilman Mayer and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA
Mayer Barrella: we have repealed an ordinance prohibiting it, but that doesn’t set a policy permitting it (Attorney Gertner: will get the research to Councilmen Mayer and Corbally and can work on a resolution).

Ordinance 2013-14 (Amendment to 2013-02/Parking) was considered on second reading.
Public hearing was opened and held with no member of the public wishing to be heard.
Motion by Councilman Cortes to close public participation was seconded by Councilman Reid and carried by roll call vote.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA
Councilman Reid: asked BA/CFO Riehl, now that parking has extended to District 3, for the cost of extra signs and poles (BA/CFO Riehl: will be contained within the DPW budget; Councilman Cortes: asked if signs can be reused in District 4; BA/CFO Riehl: yes – the ones that can be re-decaled; Mayor Barrella: remaining signs in the Channel Drive/Inlet Drive area can be moved – plan is being expanded in District 3, but decreased in District 4, so the area is about the same).
Motion by Councilman Cortes to adopt Ordinance 2013-14 was seconded by Councilman Gordon and carried by roll call vote.
VOTE: Council Members Corbally, Mayer, Gordon, Tooker….YEA
Councilmen Reid, Cortes….NAY

Councilman Mayer: in October 2012, Ordinance 2012-32 was adopted, for construction of 400’ north of Trenton Avenue – contract was subsequently amended to extend to 800’ – this catches the bond ordinance up to the actual construction.
Ordinance 2013-15 (Amendment to 2012-32/Boardwalk Reconstruction) was introduced on first reading.
Motion by Councilman Mayer to approve Ordinance 2013-15 on first reading was seconded by Councilman Corbally and carried by roll call vote. Public hearing will be held on April 23, 2013.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA

Ordinance 2013-16 (Environmental/Plantings & Recharge Designs) was held until the April 23, 2013 Council meeting, in order for a definition of yard area to be included.

Ordinance 2013-17 (Appeals to Board of Adjustment) was introduced on first reading.
Clerk Ellsworth announced that this correction was brought to her attention by the Zoning Officer and BOA Clerk (Attorney Gertner: mirrors the state statute; Mayor Barrella: changes 65 days for appeal to 20 days).
Motion by Councilman Mayer to approve Ordinance 2013-17 on first reading was seconded by Councilman Reid and carried by roll call vote. Public hearing will be held on April 23, 2013.
VOTE: Council Members Reid, Cortes, Corbally, Mayer, Gordon, Tooker….YEA

PUBLIC PARTICIPATION BEGAN AT 10:43PM.

Lee Kelly, PPB: asked if residential parking permits are being continued (yes).
Vince Castin, PPB: asked about the award of contract to Earle Asphalt for Silver Lake repaving (BA/CFO Riehl: we contracted it out - still negotiating a settlement with AshBritt).

PUBLIC PARTICIPATION ENDED AT 10:45PM.

Meeting was adjourned at 10:46 PM by consent of Council.


TRANSCRIBED BY: Maryann Ellsworth, Municipal Clerk and Eileen Farrell, Deputy Clerk



ATTEST: Maryann Ellsworth, Municipal Clerk


Published April24, 2013 | Council Minutes | 1585


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