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June 11, 2009


The Mayor and Council of the Borough of Point Pleasant Beach met at 6:30 PM with Mayor Barrella and Council Members Mercun, Hennessy, Cervino, Dixon and Rizzo present. Councilwoman Tooker was absent. The Municipal Clerk read the notice indicating compliance with the Open Public Meetings Act.

Mayor Barrella asked if CMX memo regarding EIT grant application and Lake of Lillies dredging levels needed to be addressed in closed session due to ongoing litigation.
Attorney Gertner: determination of dredge depth by Council will affect its ability to receive a grant and can be discussed in closed session – any action on that determination must be taken in open session; as to litigation, there are cross motions for summary judgment as well as the Borough’s motion to amend and add the State and the County as third party defendants and seeking contribution.
Decision was made to hold closed session until after Jenkinsons hearing.

Attorney Gertner: matter was brought before Council on renewal of Jenkinsons' ABC license; Mr. McLaughlin represents the Harborhead community and Messrs. Gasiorowski and McGlynn represent Jenkinsons – received information today from Mr. McLaughlin as additional basis for objection - was late in coming and addresses 1979 action expanding the ABC license to the north pavilion – matter was addressed last year and it is a law of case that said expansion is legal - advised that Council hear no testimony on said matter.

Roger McLaughlin, Attorney for Harborhead Condominium Association: called witnesses to testify.
Linda Benjamin, 4 Harborhead, was sworn in and testified: before closing on 4 Harborhead in 2005, confirmed three things - no building was permitted east of the Boardwalk, expansion of the existing business was prohibited and Point Pleasant Beach had a reputation for being vigilant in protecting the quality of life of its residents - enjoyed summer of 2006 – there were no large parties of any kind and the snack stand closed early - over winter of 2006/2007 a 2,000 square foot deck was built on joists at grade level – from this point things deteriorated rapidly – private parties that are unrelated to the snack stand are held there – food is served from a building across the Boardwalk at 3 Broadway and is not prepared in the snack stand kitchen – the hours of operation have expanded significantly – the noise not only invades her balconies, but the interior of her home – these circumstances resulted in the e-mail complaint that was sent to the town clerk on May 14th – read complaint into the record “a 2,000 square foot private party deck with multiple loud speakers was built east of the Boardwalk during the winter of 2006/2007, which is on Harborhead property. The noise generated by this new business during the summer of 2007 was intolerable. Conditions were put in place for summer 2008 to minimize the severity of noise conditions. The volume was lower, but unfortunately this was not sufficient. During the summer of 2008, my balconies were unusable as loud music was projected from the loudspeaker all day and well into the night. Indoors the TV had to be on a loud volume to be heard over the noise. Prior to the new party deck being built, there was light jukebox type music played inside the snack stand. My additional concern is the large, loud, after party crowd that stays at the bar long past the historic closing time. On three occasions I was woken up by the noise well past midnight. There are also safety issues. My teenagers and her friends had to pass a group that had been partying all day and into the night just to access our property. There’s a police presence during the day, but at night this area is isolated and not heavily patrolled.” - everyone knows in their heart that these conditions are difficult to live with - would like nothing better than a peaceful coexistence – am confused about the town rules - can Red's Lobster Pot and the Shrimp Box generate this type of noise unchallenged – don’t know what kind of precedent is being established here – no one would be here is there was not a significant change in the quality of our lives – no one in this room would roll over and play dead if this was happening to you in your homes.
Ron Gasiorowski, Attorney for Jenkinsons: asked Ms. Benjamin if she was a member of the Harborhead Condo Association (yes) and if she was familiar with Mr. McLaughlin’s letter, dated May 8th, and asked that it be marked into evidence (exhibit A) – asked that all Harborhead residents giving testimony acknowledge whether or not they knew about this letter being sent.
Linda Benjamin: did not read or know letter was sent - know that decibel reading, taken by meter owned by another Association member, was 75 last weekend – was 35 feet into my home from the patio doors and could sing along to the music.
Roger McLaughlin: represent Condo Association, which is a legal entity - don't have a specific attorney/client relationship with any of the residents - letter that was written on May 8th has not been responded to – moreover, the situation over the past several weeks has changed the situation and that is no longer the feeling of the Condo Association.
Dale McMullin, 6 Harborhead, was sworn in and testified: banquets and parties that involve liquor are getting more elaborate – repercussions, with drinking and large crowds, has definitely affected our way of life as residents - close to a large banquet facility that previously never existed – coupled with alcohol consumption, large groups become loud and rowdy, continuing long after the party is over with – have attraction in front of condos with parking for that attraction behind condos – have young teenage daughter and am uncomfortable with her being outside with people, from inside attraction, wandering around on Boardwalk - parties are continuing to get louder – last party on Labor Day 2008 hosted 350 people – this Memorial Day season started with a bang – have picture showing tent, larger than a building, which was erected last weekend (event was on June 6th) (Pictures marked McMullin 1&2, with e-mail marked McMullin 3) – picture was taken day after party, not while party was in full swing - other picture shows small party, relative to what has been there lately - on June 6th, decibel meter hit 75 many times – they’re not trying to suppress the noise, the number of people or the size of the party being held and this is only the beginning of the season - music stopped at 10:05 pm – when it first hit 75, we went out to have dinner because we had to get out of the house - was hitting 75 when came home at 9pm and it hit 75 many times in that hour – was told it was being worked on last year, that they were still tweaking the system - never arrived at a solution last year as new sound system never muted the noise - been told by different sound experts that it's the base that's causing the reverberation and base does not register on decibel meters – sound can be down, but base still rattles the windows and doors - only getting worse not getting better.
Lucille Buonocore, Unit 13, was sworn in and testified: met with Storinos and their sound people, last year, and was told that all sound would come through their system and regulated – even last year, the sound never got regulated - was told there would be no Sweet 16 parties - had a bar mitzvah last weekend with at least 200 kids screaming all over the beach, with tug of wars and climbing on the rocks - young children are mixed in with people who are drinking - don't understand how any one could start a banquet facility there.
Steve Pandolfo, Clark - NJ and Harborhead Owner, was sworn in and testified: has not sent any e-mails or letters - on numerous occasions the letter and spirit of any agreement that the Condo Association entered into with Jenkinsons has been vacated by the actual performance of Jenkinsons North Pavilion activities – understanding is that the maximum noise decibel is 68 and it has frequently been exceeded.
Attorney Gasiorowski: asked if he was aware that a test had been run in front of municipal officials to demonstrate that the strictures of the agreement were being adhered to (cannot comment on that)

Councilman Mercun: asked that all letters or e-mails sent be made part of the record and then exited the meeting at 7:02 pm.

Edward McGlynn, General Counsel for Jenkinsons was sworn in and testified: aware of fact that there was a Memorandum of Understanding (“MOU”) signed between both parties in which Jenkinsons obligated itself to perform certain services with regard to monitoring the sound system - employed noise consultant and installed system which specifically regulated the DBA’s that would be coming from the facility during the hours of operation – system was satisfactorily tested in front of Borough officials – same system is presently functioning
Mr. McLaughlin: asked that MOU be marked as O(Objector) 1 – asked Mr. McGlynn whether a formal or informal response was made to his May 8th letter (no) – MOU, which was condition of last year’s renewal approval, provides under paragraph 4, page 2, that the new sound system be tested and calibrated in accordance with the procedures set forth in the Administrative Code (believe that was done when system was installed) – asked if reasonable notice was given to Harborhead and Borough when system was calibrated (thought that was done the same night) – asked if there is anything in writing regarding the testing and calibration (no) – asked about permits to erect tents in Exhibit M2 (don’t know) – asked if thatched roof structure on deck (Exhibit M1) is a bar (yes).
Attorney Gertner: asked Mr. McGlynn if he knew how often the sound suppression machine should be calibrated (no)

Matt Smith, 400 Villanova Road – Glassboro, was sworn in and testified: has BS in Electrical Computer Engineering from Rowan University and holds a N J Engineer-In-Training license – took and passed Rutgers course required by those enforcing noise laws in the State of New Jersey – former employee of Litowornia Associates, but left in March and is now an independent contractor (accepted as an expert in field of noise measurement as per regulations established by the NJ DEP) - was employed by Litwornia Associates last year and was sent to Jenkinsons to perform tests subsequent to installation of the system – interacted with people from Harborhead who were present - all decibel readings were within NJ DEP regulations – returned to site last Saturday, at the request of Attorneys Gasiorowski and McGlynn, to take tests – noise levels were within NJ DEP parameters upon arrival – asked them to turn the stereo system all the way up, between 8:38 and 8:42 pm, to find the maximum amount of sound the system was capable of generating - read 74 decibels at the corner of the fence, directly across the Boardwalk, and 68 decibels roughly 60 feet further down the Boardwalk – after adjusting to normal levels took adjusted readings of 63 and 60 decibels respectively at aforementioned sites – explained how one arrives at adjusted readings when allowing for all other noise sources - when stereo turned off background noise dropped to 60 decibels – a decibel is a logarithmic measurement - +3 decibels equates to a doubling of sound levels – so 74 would equate to 16 times the energy but would sound twice as loud to the human ear - unamplified human voice is exempt from violations as per DEP regulations
Attorney Gertner: asked Mr. Smith if there is a protocol to testing this equipment (can't testify on this equipment).
Mr. McLaughlin asked Mr. Smith: how many days he was there last summer (twice) – wasn't system designed so that sound could not hit a certain power - wasn't it designed so it could not violate DEP standard (yes) - so it was possible to turn sound up to violate noise standards at your request (yes) - on Saturday was large tent there (yes) - how was music being produced (disc jockey on the patio) - was DJ utilizing the microphone (yes) - did you hear DJ referring to the residents of Harborhead (no) - did you here DJ say he was breaking the Point Pleasant Beach noise ordinance (no) – asked if Jenkinsons has committed him to perform any other tests (no) – asked about direction of wind on Saturday (coming from southeast) - would that be toward the direction of Harborhead (yes).

Brenda Werner, was sworn in and testified: original and current owners of Harborhead Unit 21 - was in unit last Saturday evening during Bar Mitzvah party under tent at Jenkinsons North - could hear the DJ, music and guests - heard who lit the first candle, etc - heard DJ say “Hope you are having a good time because we are breaking every noise ordinance in Point Pleasant Beach.”

Anthony Storino was sworn in and testified: one of the owners of Jenkinsons Pavilion with responsibility for management of north pavilion - familiar with last years MOU – was not aware that MOU, at 5F, required changing Jenkinsons event contract for usage of north pavilion facilities – believes those stipulations are in contract – do not currently have a contract with any company for ongoing calibration of sound system but have spoken with Mr. Smith about setting something up for this season.

Chief DePolo: requested by Borough Clerk to query police system for complaints from June 1, 2008 through current date (packet was marked as B1 with 3 complaints after drafting MOU) - one complaint document through police department in 2009, with one screen generated for incident but had 3 separate calls.
Mr. McGlynn testified that about approximately ten events have been held in 2009 but was unable to classify what type of events - cell phone number was provided as per MOU - was called last year, but not this June - the complaint event was booked 2 years ago – other 2009 events were smaller events.

Mr. Gasiorowski: agreeable to same stipulations on license as last year and also agree to contract to have testing performed 6 times during summer 2009 – was retained to represent Jenkinsons during hearings last year - attempt made to satisfy residents of Harborhead to ensure total compliance with DEP noise control regulations - approximately 20 Harborhead residents were present when tests were randomly conducted - have May letter from Mr. McLaughlin stating Condo Association was satisfied with the efforts that were taken – held Bar Mitzvah there on June 6th, from two year old contract, and had noise consultant there to test sound levels - limited number of people that can play in bands and the type of instruments they can play - not one iota of proof that Jenkinsons violated the noise ordinance – entitled to have license renewed and prepared to accept same conditions as last year – prepared to accept recommendation to conduct 6 independent evaluations during the course of the summer.

Mr. McLaughlin: problem here is that the licensee does what the licensee wants to do and when the licensee wants to do it - took 2 months to get MOU signed – sound system was put in towards the end of the summer but controls weren't put on it to keep it from going high enough to exceed the DEP regulations – obviously there wasn’t any testing done until just a few days before this hearing - history here is that nothing gets done unless Jenkinsons is pushed to do something - quite obvious that the MOU has not been adhered to and that the contract hasn’t been changed – it’s great that they are willing to do 6 tests and that should be put as a condition on the license – everything else in the MOU should remain as a condition on the license if renewed – in respect to extension zoning issues, have been before the Zoning Board at several meetings and will be back again in September – last week a gigantic tent was erected without benefit of permits - violations were issued – why, because Jenkinsons doesn't do that – this Council, acting as the municipality’s ABC Board, is obligated to enforce the law and insure that their licensees follow the law – this licensee has not shown neither the desire, nor the willingness nor the capability to do that.

Motion by Councilman Cervino, seconded by Councilman Hennessy and carried by the following roll call vote, to deliberate and take action on this matter tonight.
VOTE: Council Members Mercun, Hennessy, Cervino, Dixon, Rizzo….YEA
Councilman Hennessy: after reading the MOU and hearing testimony from both sides, have some issues - one is with Harborhead having current cell phone number of Jenkinsons’ manager so problems can be addressed, as per 5G of MOU (only property manager has cell phone number and he doesn't live there); Councilman Dixon: have one attorney saying Jenkinsons is not following agreement but other side is also not following – should be calling Jenkinsons manager when there is a problem; Councilman Hennessy: asked if all live music and entertainment is still ceasing at 10PM and asked to insure that it is referenced in Jenkinsons’ contracts; Attorney Gertner asked that copy of form contract be provided should renewal pass; Councilman Hennessy: must provide advance notice to Harborhead and Borough when there is going to be a decibel reading – asked if conditions staying the same (Gasiorowski: yes - but agreeing to more tests - we can pick three and town can pick three when events going on) – Borough will coordinate with Mr. Smith to be there when he's doing readings; Mayor Barrella: random testing is better than scheduled testing – asked about possibility of allowing Harborhead to call for random testing with expert hired by Harborhead; Councilman Hennessy: maybe Mr. Smith can do three tests scheduled by Harborhead and three scheduled by Jenkinsons - fighting needs to stop – Harborhead residents quality of life should be preserved - should be able to stay in their living rooms and watch whatever is on at 9 PM on Saturday night
Mr. Gasiorowski: don't have problem with Chief picking 6 dates (Chief: if no one knows when they are going to check decibels, it balances out the playing field; Mayor Barrella: dial needs to be fixed so sound cannot exceed decibel level) - will agree, within the next ten days, to have Police Chief, or any other representative of Borough, present to monitor demonstration that the electronic equipment there, even if turned up full blast, will not exceed the noise levels.
Councilman Cervino: Storinos are residents of this town – believe there is every intention on their part to be as good a neighbor as possible – the fact that this may not have happened doesn’t mean it can’t happen - everything in that MOU has been done - talked about adding several items to it, such as scheduled or random testing - don't see any tremendous transgressions here - - don't believe that they have been unattentive to the agreement that was reached last year - hard to believe no patrol persons there on Boardwalk at night; Councilman Dixon: Jenkinsons installed sound system late last summer, but after installation there was only one complaint - complaints only come when there is a large event up there – normal operation of restaurant and bar is not a point of contention - not disagreeing that it’s loud, especially when wind is blowing in certain direction - have problem with Harborhead residents not calling police when there is a problem - as far as testimony to decibels, don't know what kind of machine Harborhead bought - Jenkinsons expert came up with different levels – testing should be continued.
Attorney Gertner: another suggestion which may or may not be helpful, any licensed expert is reporting based on their professional license – Federal and State government rely on this all the time – within Council’s right to ask for random testing with certification from expert that this was carried out along with certification of results.
Mr. Gasiorowski: with respect to random testing, Jenkinsons North should not be treated any differently than any other license holder in this community – if they want random testing they can hire an expert with regard to that – it’s an easement on the Boardwalk - anyone can go there and perform a test – they’re coming here yelling and screaming and yet they’ve done nothing to test this.
Mr. McLaughlin: that's exactly the attitude your licensee has towards the residents of Harborhead or anyone else - a liquor license is not a right, it is a privilege - licensee is supposed to comply with every rule, regulation and condition without question, complaint or exception and without insulting its neighbors – every licensee is treated differently if the conditions under which that business operates is different than other licenses - not aware of any other license in town, where large banquets are held almost daily outside in the summer, that is located within 50 feet of a residential condominium complex – to stand up and say we want to be treated like everyone else is the height of arrogance - resident taxpayers at Harborhead are entitled to Council’s protection – entitled to the peace and quiet enjoyment of their property – entitled to expect that Point Pleasant Beach is going to enforce all the laws, regulations and ordinances that apply in the Borough and enforce all the conditions imposed on this license - Harborhead and its residents are not supposed to be responsible for enforcement, testing or making Jenkinsons do what its supposed to do – that’s the job of the Borough – that’s Council’s charge as the local ABC Control Board under the laws of the State of New Jersey.
Councilman Hennessy: believe I said that it’s more of an enforcement issue - asked if Jenkinsons has police presence (yes, their security) – think more town police presence is needed during these events; Councilman Rizzo: need more enforcement - don't know what it will cost, but police monitoring of decibel levels should be looked into again; Mayor Barrella: perceived absence of police presence during these events – asked Chief about staff deployment (reconfigured postings for more police presence on north end - need to call in immediately if there is an issue) – during Elks events, they are required to pay for Police officers - if there is an event in excess of a certain number, could perhaps treat it the same way and require that they have a number of police officers there - asked if that’s something this Council can impose as a condition (yes).
Motion by Councilman Cervino, seconded by Councilman Hennessy and carried by the following roll call vote, renewal of ABC license for Jenkinsons Pavilion was approved with the following conditions:
1) All restrictions as set forth in renewal resolution for the 2008-2009 license year will remain in effect, including the Memorandum of Understanding signed August 24, 2008;
2) Within 10 days, Jenkinsons North will provide a place for test of the sound system, with notice to Harborhead and the Borough, to ensure that decibel level will not go over DEP standards, including testing of the locking device. Ability to change volume levels, bypassing locking device, will be limited;
3) There will be 6 tests, with Jenkinsons paying for same;
4) Jenkinsons will provide a list of events taking place this season within 14 days;
5) Mr. McLaughlin, Harborhead Association Attorney, will respond within 7 days with list of 6 events to be monitored;
6) Jenkinsons will provide copy of revised event contract
VOTE: Council Members Hennessy, Cervino, Tooker, Rizzo….YEA

Mayor Barrella called for a recess at 8:36 PM and reconvened the meeting at 8:46 PM with Council Members Hennessy, Cervino, Dixon and Rizzo present. Council Members Mercun and Tooker were absent.

Motion by Councilman Cervino, to enter closed session to discuss one contractual matter, was seconded by Councilman Hennessy and carried by the following roll call vote.
VOTE: Council Members Hennessy, Cervino, Dixon, Rizzo….YEA

Closed session started at 8:49 P.M. and ended at 9:09 P.M.

Mayor Barrella reconvened the meeting at 9:19 PM with Council Members Hennessy, Cervino, Dixon and Rizzo present. Council Members Mercun and Tooker were absent.

Clerk Ellsworth added item to consent resolution; Kristin Hennessy asked how Council arrived at $3,000,000 figure for lake dredging and if that amount would satisfy full dredging to historic depth, up to 9 feet as presented by Borough Engineer a few meetings past - if only dredging partial, how long will it take before another Council will have to readdress dredging – asked about status of stimulus application - asked for update on decision to file against DOT; Ben Dispoto: confirmed 1% rate for loan; Candace Donoghue: asked why town can't file complaint against DOT under the ‘Spilled Water Act’ - consulted with several top notch environmental attorneys who feel there is more than adequate evidence to prove the suit and have DOT do the funding – would like town to live up to covenant on deed, see lake restored to natural level and see DOT held responsible with minimal effect to town’s taxpayers; Kristin Hennessy: recommended Council table issue for next Tuesday (reaffirmation of application must be filed before next Tuesday's meeting); Ed Donoghue: asked it notification was received on the 19th - asked about free stimulus money; Stewart Fischer: when Engineer Savacool made recommendations, Council voted to make the application without committing yourselves (still not committing ourselves) - asked about how much has already been committed from Open Space Fund for Risden’s and Inlet properties.
a) P O to Hertrich Fleet Services for DPW truck ($15,073)
b) Appointment of seasonal Public Works laborers (3)
c) Authorization to apply for EIT financing for $3,000,000 for Lake of Lillies dredging – CLOSED SESSION ITEM
VOTE ITEM ‘a’: Council Members Hennessy, Cervino, Dixon, Rizzo….YEA
VOTE ITEM ‘b’: Council Members Hennessy, Cervino, Dixon….YEA
Councilman Rizzo….NAY
VOTE ITEM ‘c’: Council Members Cervino and Dixon** and Mayor Barrella***…..YEA
Council Members Hennessy*, Rizzo….NAY
*Councilman Hennessy: 100% for dredging lake to its original depth but not on the taxpayer’s dollar – DOT should be sued and they should pay for it - town's in enough debt and we don't need more debt – missing opportunity in not suing DOT here.
**Councilman Dixon: if we continue to wait for the State and County to pay their fair share for all of the damage they did to the lake, I'll be dead as will everyone in this room - have an opportunity to get a loan at 1% for $3M – if we let that pass, will have to go traditional bond at 4 or 5%, if we don't get money from the County and/or State – it will cost this town 3 or 4 times more than this will cost us now - depth of 4 feet will cost $167,000 in debt service per year, which can be handled through the Open Space Tax without putting an additional burden on taxpayers.
***Mayor Barrella: voted for it once already – this is a resubmission of application since EIT is requiring a recommitment before June 15th – Engineer Savacool presented various options on a flip chart and this Council voted to submit an application – read from letter “Since only a small number of projects have received principle forgiveness, the NJ DEP is requiring that potential borrowers submit a recommitment form no later than June 15, 2009.”

Joe Wegrzyniak, Point Pleasant Beach: asked about Gowdy Avenue being on list for paving next year.
Dina Wegrzyniak: thanked Council for job they do – asked if there is any way to guarantee that Gowdy would be next with nothing superceding it.
Attorney Gertner: discussions already being held with Point Pleasant so coordination is in place - issue is out there so that when money is available it will bring a joint application.
The meeting was adjourned at 9:55 P.M.

Published October09, 2009 | Council Minutes | 881

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