1

MINUTES HAMILTON TOWNSHIP COUNCIL

PRESIDENT: EDWARD GORE

VICE-PRESIDENT: DAVID KENNY COUNCIL MEMBERS: KEVIN MEARA, DENNIS PONE, AND ILEANA SCHIRMER

April 16, 2013 Municipal Building

6:30 PM Agenda Meeting Public Meeting Immediately Follows

The agenda as it appears was discussed by members of Council along with members of the administration. Statement of the President “THIS MEETING IS BEING HELD WITH THE BENEFIT OF PUBLIC NOTICE AS REQUIRED BY THE OPEN PUBLIC

MEETINGS ACT” Roll Call Council Members Present: David Kenny, Edward Gore, Dennis Pone, Ileana Schirmer, and Kevin Meara Administration Present: Lindsay Burbage, Director, Department of Law John F. Ricci, Business Administrator Salute to The Flag Invocation Minutes January 2, 2013 (Draft Format) January 15, 2013 (Draft Format) Communications 1c. Acknowledge Receipt of Documentation of Amendment to Alcoholic Beverage Control Liquor

License 1103-32-008 (Trade Name Addition: Cedar Gardens and Princeton Manor Consent Agenda 2a. Resolution Authorizing The Sewer Utility Board To Enter Into An Agreement With The Proper

Officials Of The Township Of Hamilton For Administrative Services 2b. Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Enter Into An

Agreement With The Board Of Trustees – Free Public Library Of The Township Of Hamilton For Administrative Services

2c. Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Enter Into An

Agreement With The Hamilton Township Sewer Utility Board For Administrative Services 2d. Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Execute A Grant

Application And Authorizing Execution Of Associated Agreement With The United States Department Of Housing And Urban Development To Apply And Program The 39th Program Year Statement Of Activities Under The Community Development Block Grant Program (Grants Funds - $467,125.00)

2e. Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Conduct An

Auction For The Disposal Of Surplus Property 2f. Resolution Establishing A Contract For Catering Services For Hamilton’s Senior Center Picnic

With Rosa’s Restaurant & Pizzeria ($10,150.00) 2g. Resolution Establishing A Contract With RBC Services For The Purchase And Replacement Of

Rotating Biological Contactors Fiberglass Chain Cases At The Department Of Water Pollution Control ($52,149.00)

2

Consent Agenda cont’d 2h. Resolution Approving Extension Number One To Contract 12-184 With Longo Electrical And

Maul Electrical For Heavy Electrical Equipment Repair ($100,000.00 Shared Maximum) 2i. Resolution Rejecting Bids Received To Establish A Contract For Inundation Mapping, Updating

Of The Operation And Maintenance Manual, And Emergency Action Plan For The Pond Run No. 8 Dam Located In The Township Of Hamilton And Known As Block 2169, Lot 2

2j. Resolution Authorizing The Refund Of Fee Paid For Construction Permit By Trenton Roofing

($158.00) 2k. Resolution Authorizing The Refund Of Fee Paid By Keith Padderatz For A Construction Permit

($200.00) 2l. Resolution Authorizing The Refund Of Real Estate Taxes ($780.73) 2m. Resolution Extending The Period Of Time To Complete Foreclosures On Various Tax Sale

Certificates; N.J.S.A. 54:5-114.5 (Various Properties) Resolutions 3a. Commendation – Recognition Of Autism Awareness Month 3b. Resolution Consenting To The Appointment Of Chuck Thomas To The Hamilton Township

Board Of Public Officers Ordinances 4a. 13-004 Ordinance Amending And Supplementing The Land Development Code,

Hamilton Township, New Jersey, Chapter 160, Land Development, Article V, Exceptions, Modifications And Development Alternatives, Section 160-161, Conditional Uses

SECOND READING AND PUBLIC HEARING 4b. 13-014 Ordinance Amending And Supplementing The Code Of Ordinances,

Hamilton Township, New Jersey, Chapter 134, Swimming Pools, Section 134-4, License Required For Construction, Alteration Or Operation

SECOND READING AND PUBLIC HEARING

CY13 MUNICIPAL BUDGET INTRODUCTION

5a. Resolution Authorizing The Municipal Clerk To Read The Calendar Year 2013 Municipal Budget Resolution By Title Only 5b. Resolution Of Introduction And Approval Of The Calendar Year 2013 Municipal Budget COMMENTS FROM THE PUBLIC COMMENTS FROM THE COUNCIL ADJOURNMENT: 7:00 PM

3

MINUTES HAMILTON TOWNSHIP COUNCIL

PRESIDENT: EDWARD GORE

VICE-PRESIDENT: DAVID KENNY COUNCIL MEMBERS: KEVIN MEARA, DENNIS PONE, AND ILEANA SCHIRMER

April 16, 2013 Municipal Building

7:00 PM Agenda Meeting Public Meeting Immediately Follows

Statement of the President “THIS MEETING IS BEING HELD WITH THE BENEFIT OF PUBLIC NOTICE AS REQUIRED BY THE OPEN PUBLIC

MEETINGS ACT” Roll Call Council Members Present: David Kenny, Edward Gore, Dennis Pone, Ileana Schirmer, and Kevin Meara Administration Present: Lindsay Burbage, Director, Department of Law John F. Ricci, Business Administrator Salute to The Flag – Led by Councilwoman Schirmer Invocation – Led by Councilman Pone Minutes On the motion of Mr. Meara; seconded by Mr. Pone; the following minutes were unanimously approved: January 2, 2013 (Draft Format) January 15, 2013 (Draft Format) Communications On the motion of Mr. Pone, seconded by Mr. Meara; the following communication was unanimously approved: 1c. Acknowledge Receipt of Documentation of Amendment to Alcoholic Beverage Control Liquor

License 1103-32-008 (Trade Name Addition: Cedar Gardens and Princeton Manor Consent Agenda On the motion of Mr. Kenny, seconded by Ms. Schirmer; consent agenda items 2a through 2m were unanimously approved after the following discussion: MR. AUGUST SCOTTO, Mark Twain Drive: Some years ago, I went up to the library and I questioned the board of trustees who are not elected. They are appointed by groups in the library. So I questioned them about some of the spending. And they said, you come from Hamilton. You have no authority over us. So I says why? They said no, not Hamilton, we get our money from somewhere else. I says, no you don’t. He said, yes, So now I see they’re asking the board of trustees to raise the rates. They don’t have any authority to raise a penny. It’s something that somebody started years ago and it’s a violation of the Constitution. It should be someone who’s elected that raises rates. So when you don’t like what they do, you vote them out of office. When I see unelected officials raising rates and they usually end up giving themselves a little something, and I hate that. And it costs the people more money. So please look into that and try to do something. MR. RICCI: Mr. Scotto, the board in this resolution is the Hamilton Township Library board. I don’t know which board meeting you were attending. MR. SCOTTO: The board of trustees.

4

MR. RICCI: This is the board of trustees. They are appointed by the Mayor and the Council, not some special interest group at the library. And this resolution is to reimburse the township government for services that we provide to the library. It’s not raising any rates. MR. SCOTTO: What it does is they decide how much to spend. MR. RICCI: Yes they do, that’s correct. MR. SCOTTO: And I said that only elected officials should do that. MR. RICCI: the amount of taxes that they can spend is set by the Council. PRESIDENT GORE: Philosophically, I agree with you Augie. Nevertheless, we are preachers of the state government has deemed that the library board be set up in this manner. And that they control their funding in the manner that they do. So my hands are tied. MR. SCOTTO: I fight that, I don’t like that. I want the people to do it. And the people should do it by the way they vote not by the way they’re told to pay taxes. It’s wrong, it’s not Constitutional protecting the people. MR. ANTONIO C. GAMBINO, 1007 Hughes Drive: Resolution 2b, I think there’s a lot of hanky-panky going on over there at the library. I’ve been saying it for years, nobody wants to listen. I think the FBI should do an investigation of the library trustees. That’s what I think. Resolution 2d. what type of property is being disclosed of because you don’t say. MR. RICCI: There’s a list attached to the resolution. It’s surplus equipment. I guess you don’t have it as part of the agenda list, but there’s a list that’s here. Cars, trucks, other pieces of equipment that have reached their useful life. MR. GAMBINO: What do you consider a useful life? MR. RICCI: Well, we have some cars from the 1990’s, early 2000. Almost everyone has more than 100,000 miles on it. Some other equipment that’s been approved for replacement by the Council. MR. GAMBINO: And you consider over 100,000 miles is shot? MR. RICCI: For a police car yes. MR. GAMBINO: That’s it, nothing else? It says, property, property. MR. RICCI: It’s not real property, it’s not land. Cars and equipment. MR. gambino: Resolution 2f, why is it that every time I see the contract for Mamma Rosa’s, why does she always get this contract? MR. RICCI: She was the only bidder. MR. GAMBINO: She’s the only bidder? MR. RICCI: Yes sir. MR. GAMBINO: She gets it all the time? MR. RICCI: She doesn’t get it all the time, we awarded one a few months ago, it went to another restaurant. MR. GAMBINO: Because I always see her name on here for the contracts. MR. RICCI: When she’s the only bidder or the low bidder, that’s who we recommend for award. MR. GAMBINO: You want to know something else too, I’m curious why Augie never says anything about this. When she gets this contract because Gilmore is married to her. He complains about Gilmore all the time stealing all this money in Hamilton Township. But now I’m serious, I’m just curious why he never says nothing about this. MR. VINNIE CAPODANNO, 65 Englewood Boulevard: The auction, (2:23:22) because of the capital budget. MR. RICCI: They were replaced in prior years, yes, not this year.

5

VICE-PRESIDENT KENNY: We’re looking at some pretty old vehicles, 1992, 93. MR. CAPODANNO: has Council inspected any of them vehicles? MR. RICCI: No. MR. CAPODNANO: They’re going to vote on a resolution that they haven’t inspected any of the vehicles. Can you explain resolution 2b? MR. RICCI: This is the community development block grant that comes from the federal department of housing and urban development. Primarily its used for housing rehabilitation work. Also included in there would be some playgrounds, sidewalk repairs in lower income neighborhoods. It also funds a summer camp at the Wilson Center. COUNCILMAN PONE: It funds the Bromley Center. MR. CAPODNANO: Do you expect that money to be spent? MR. RICCI: Yes. MR. CAPODANNO: Can you explain 2i? MR. RICCI: We discussed that a little earlier. The cost estimate that the engineer had come up with was only about $18,000, the low bid is $29,000. So he’s recommending that we reject the bid. He doesn’t have enough funding to proceed with it at that number. So we’ll do it at a later time. MR. AUGUST SCOTTO, Mark Twain Drive: There’s a gentleman in here that has a memory that’s lost. He just got up; he said how come I didn’t say anything about Rosa. I did the last time she put in for it. And I was told that it had nothing to do with him. So I said alright. I came here today, and I spoke to several people near the Mayor’s office about that. And they told me they can’t stop it because of him. And I say, well, he’s involved Gilmore and he’s been putting all the money into a lot of different issues, our money. Nobody understands that. I love when I get this guy in the back there. He speaks up about things he knows nothing about. MR. ANTONIO C. GAMBINO, 1007 Hughes Drive: Resolution 2d, I didn’t see that. You’re going to give the Bromley Center how much now out of this grant? PRESIDENT GORE: Probably less than last year because we didn’t get as much money from the feds again. MR. RICCI: About $55,000. It actually reimburses the township for salaries. MR. GAMBINO: They use that money for salaries is that what they use it for? MR. RICCI: It’s not they, it’s part of the township government. MR. GAMBINO: it’s used for salaries or it’s not used? MR. RICCI: That’s what I said, it reimburses the township for salaries at the Bromley Center. We pay the salaries. 13-148 Resolution Authorizing The Sewer Utility Board To Enter Into An Agreement With The Proper

Officials Of The Township Of Hamilton For Administrative Services 13-149 Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Enter Into An

Agreement With The Board Of Trustees – Free Public Library Of The Township Of Hamilton For Administrative Services

13-150 Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Enter Into An

Agreement With The Hamilton Township Sewer Utility Board For Administrative Services 13-151 Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Execute A Grant

Application And Authorizing Execution Of Associated Agreement With The United States Department Of Housing And Urban Development To Apply And Program The 39th Program Year Statement Of Activities Under The Community Development Block Grant Program (Grants Funds - $467,125.00)

6

13-152 Resolution Authorizing The Proper Officials Of The Township Of Hamilton To Conduct An Auction For The Disposal Of Surplus Property

13-153 Resolution Establishing A Contract For Catering Services For Hamilton’s Senior Center Picnic

With Rosa’s Restaurant & Pizzeria ($10,150.00) 13-153 Resolution Establishing A Contract With RBC Services For The Purchase And Replacement Of

Rotating Biological Contactors Fiberglass Chain Cases At The Department Of Water Pollution Control ($52,149.00)

13-155 Resolution Approving Extension Number One To Contract 12-184 With Longo Electrical And

Maul Electrical For Heavy Electrical Equipment Repair ($100,000.00 Shared Maximum) 13-156 Resolution Rejecting Bids Received To Establish A Contract For Inundation Mapping, Updating

Of The Operation And Maintenance Manual, And Emergency Action Plan For The Pond Run No. 8 Dam Located In The Township Of Hamilton And Known As Block 2169, Lot 2

13-157 Resolution Authorizing The Refund Of Fee Paid For Construction Permit By Trenton Roofing

($158.00) 13-158 Resolution Authorizing The Refund Of Fee Paid By Keith Padderatz For A Construction Permit

($200.00) 13-159 Resolution Authorizing The Refund Of Real Estate Taxes ($780.73) 13-160 Resolution Extending The Period Of Time To Complete Foreclosures On Various Tax Sale

Certificates; N.J.S.A. 54:5-114.5 (Various Properties) Resolutions 13-161 Commendation – Recognition Of Autism Awareness Month Ms. Schirmer moved to adopt, seconded by Mr. Kenny; unanimously approved after the following discussion: Council President Gore reads the resolution into the record. MR. ANTONIO C. GAMBINO, 1007 Hughes Drive: I’d like to start out by saying that I know there’s a lot of kids out there that have a lot of troubles, learning disabilities and short-comings. But I want to tell you a little story, about what happened to me last month when I was at the CVS. There was a gentleman that had come in there and he was from Tennessee. And we got to talking and he said to me like this. I said how come you’re living up here? I said usually people from the south don’t like it up here anymore. And his response to me was, I have a child with Autism. I can’t get no money down there, that was his response. He says the laws in the state of New Jersey are a little bit more lenient than they are down south. So it made me stop and think that… and I spoke to a lot of people about this and sometimes I wonder if a lot of these doctors… and I don’t want to put my foot in my mouth here. But sometimes I wonder that if a lot of these doctors are playing up this disease, so people can collect money to sponge off the taxpayers. COUNCILMAN PONE: As a Godfather of an autistic child, I can tell you that it’s a daunting task to take care of an autistic child depending on where they are in the spectrum. But Mr. Gambino’s point, part of it is probably true in that the state of New Jersey has at least statistically an overabundance of autistic children. Whether that’s awareness, whether that’s we give out more money, or whether it’s just there’s something in the air, I don’t know. But I will say that the scariest thing to me, my Godchild is fifteen, the scariest part to me as these kids get older, we’re going to have a real problem on our hands. The state legislature and probably the federal government is going to have to come up with a way to allow these children to somehow become independent depending on where they are in the spectrum. The parents are amazing people. But there’s a real problem as they get older. Look at the statistic, one in eighty-eight individuals, when they become adults. There are some programs out there Autism Speaks does a great job. They try to train these people for different jobs. Some of the supermarkets and some of the different restaurants, they will employ kids if they’re high enough on the scale. That’s wonderful, but if we have an overwhelming amount of kids that become adults that that are autistic. We’re in a world of trouble. And Mr. Gambino’s point, part of that point was to the finances of it and it’s scary. And you’re right, either New Jersey has to take look at that so people don’t flood in here from out of state to utilize our resources, Or other states need to step up to the plate. And that’s why I think the federal government may have to come in. Because other states are going to have to step up the way New Jersey has to kind of spread the training and find ways for these children to become productive. When you know them personally, and you see as they grow older, it’s very scary. I count my blessings everyday with my own

7

children when I see my nephew. But this type of thing, I think people in New Jersey are pretty aware. I think it’s important for us to keep it that way. It’s important for us to support these organizations that do such a great job with autistic children. And the awareness, hopefully the parents will understand to get the kids very young diagnosed and helped as much as possible so that they can become productive citizens. And again, thank God for some of our businesses that hire the kids to do whatever jobs they can possibly do. The ARC does some of that too. I’m sure Vinnie you could help us with that. Whatever organizations are out there, you’re right, new Jersey is at the forefront. I hope the other states pick it up and it’s important for us all to be aware that that’s the future, a lot of adult autistic kids. 13-162 Resolution Consenting To The Appointment Of Chuck Thomas To The Hamilton

Township Board Of Public Officers Mr. Meara moved to adopt, seconded by Mr. Pone; unanimously approved. ORDINANCE - SECOND READING AND PUBLIC HEARING 13-004 Ordinance Amending And Supplementing The Land Development Code, Hamilton Township, New Jersey, Chapter 160, Land Development, Article V, Exceptions, Modifications And Development Alternatives, Section 160-161, Conditional Uses After the above ordinance had been read by title, the President declared the public hearing opened and asked if anyone wished to be heard concerning same. MR. VINNIE CAPODANNO, 65 Englewood Boulevard: Is this the ordinance that has something to do with the gas stations? PRESIDENT GORE: Yes, I believe it is. MR. CAPODANNO: What’s going on? VICE-PRESIDENT KENNY: The ordinance really proposes two things; to eliminate the requirement that a gas station has to be more than 1,500 feet from another automobile or gasoline service station and it’s also changing the requirement that a fast food restaurant may not be located within 1,000 feet of a school, church, synagogue, or other place of worship, or a hospital, nursing home or another fast food restaurant and it would eliminate any requirement of a distance between two fast food restaurants. MR. CAPODANNO: This would eliminate the 1,500 foot rule? VICE-PRESIDENT KENNY: Yes, that’s what the proposal is. MR. CAPODANNO: And you sent notices out to the gas station owners? PRESIDENT GORE: I believe the ones that were interested were contacted. Is that not correct Madam Clerk? MS. GORE: Yes. I contacted the gentleman from BP and I spoke to him personally. And I called twice to the gas station on Route #130. The first time, the gentleman kind of hung up on me. I called back again and he hung up a second time. MR. CAPODANNO: How many gas stations did you notify? MS. GORE: The two. MR. CAPODANNO: Just two? MS. GORE: We don’t have a mercantile business requirement that we would have a listing of all the gas stations in Hamilton. MR. CAPODANNO: How many gas stations are in Hamilton, do you have a list of that? MS. GORE: No. MR. ANTONIO C. GAMBINO, 1007 Hughes Drive: Let me comprehend this here. You’re telling me that this ordinance is that you can’t open up another fast food establishment within 1,500 feet? VICE-PRESIDENT KENNY: No, the current ordinance says they have to be 1,000 feet apart. We’re amending that to eliminate that requirement. A fast food restaurant would still have to be 1,000 feet away from a church, school…

8

MR. GAMBINO: You’re opening it up then, is that what you’re doing? VICE-PRESIDENT KENNY: Yes. MR. GAMBINO: In other words, you’re going to open it up? You’re going to eliminate the 1,000 feet? VICE-PRESIDENT KENNY: Correct; between restaurants because there has been case law where the courts have ruled that these types of previsions are invalid. And so we want to bring our ordinance into conformity with the law. When this first came up, I was told that, and I wasn’t aware that there is case law that says these requirements about gas stations being more than… our ordinance called for more than 1,500 feet apart. There were a couple of cases where the ordinance required them to be 1500 feet apart and the court struck those down. So I’ve reviewed those cases and that certainly seems to be the situation. They were both appellate division cases. MR. GAMBINO: So what you’re saying is that I have a gas station on this corner right here, and across the street, I can open up another gas station. Is that what you’re saying, right across the street? MR. RICCI: Well, you still need to go before the Zoning Board if that’s required. But the limitation that you cannot open up within that distance is eliminated. In the past, with that restriction in place, you would go before the Zoning Board and ask for variance relief. And in many cases, it had been granted. MR. GAMBINO: But what’ I’m saying is you’re going to eliminate this now? So where if a person wants to open one up across the street, they can, is that what you’re saying? VICE-PRESIDENT KENNY: That’s correct. MR. GAMBINO: If they go before the board? MR. RICCI: Correct. MR. GAMBINO: I don’t have a problem with that because it’s competition. MR. RICCI: Thank you. MR. GAMBINO: Because the gentleman on (Route) 33 opened up a sub place right down the street from him, he might be going out of business. But I don’t have a problem because this is America, and I believe in freedom. And I believe that you should be able to open up anything that you want. If somebody opens up a vegetable stand across the street, and you want to open up one across the street, you open one up. I believe in enter at your own risk in this town. That’s the way it should be. MR. ANTON LANDGRAF, 231 George Dye Road: Let’s be honest, you all know that Wawa wants to build the super gas station by Patterson. It’s not official, nothing was said. They’re going around the Zoning Board by getting you guys to eliminate that law. Let’s be honest, they lost the last time they wanted to put one on (Route) 33. We have eight gas stations now from Robbinsville to Nottingham Way. How many more do we need? It will be a nightmare on (Route) 33. Plus you also have the Zoning Board talk about quality of life and so many feet. You got all those backyards… they’re not supposed to have a 24-hour business within… I don’t know the exact footage. But they put that in effect when they wanted to build the one down by the trees. Plus another thing, I like my Wawa where it is. I walk, if I want to get a cup of coffee, get the newspaper. Before I had to get in the car. It’s a great company. Well, we don’t need another gas station by any means and go on that corner. I don’t know how they’re going to get… there’s no petition for it. They’re getting you guys to do the dirty work whether it’s Wawa or a real estate company who wants to sell that property. MR. DAN KEELAN, 4 Fisher Place: I want to first thank Mr. Burbage for following up on his commitment for getting me some of the case law that’s been cited regarding this ordinance. I have had an opportunity and I’m not an attorney or a land use attorney, but I have had a chance to talk to some land use attorneys about those cases. One in particular was Livingston verses Exxon. And as I understand that case that was because Livingston said we don’t want a gas station here. It had nothing to do… though they had an ordinance limiting the distances between gas stations. That came down to Livingston saying, we don’t want a gas station here, we want something better than a gas station here. That’s why I’m here to say if there’s a Wawa going in there, I want something better than a Wawa at that site. I want something that’s going to pay people a decent rate in this town. We have an epidemic of retail job opportunities exploding across this township. And I would think that you would want something that’s going to generate long-term opportunities for good pay for our township residents. Now from what I understand, from the first time that this issue came up, that an attorney approached the Planning Board attorney and the Zoning Board attorney and said, hey, you’re going to start a problem with this ordinance, you should really look at it Do I recall correctly? VICE-PRESIDENT KENNY: I think that’s accurate, sure.

9

MR. KEELAN: Who was that attorney? From what department? VICE-PRESIDENT KENNY: I suspect it was Mr. Forshner, who’s sitting here tonight. MR. KEELAN: Does Stark & Stark represent any particular client who has an application in front of or a pending application in front of the township? VICE-PRESIDENT KENNY: Well, Mr. Forshner represents a number of applicants. I don’t know if what you’re saying in particular. MR. RICCI: I think Mr. Forshner can speak for himself when he has the chance to come up. MR. KEELAN: With regard to that Patterson Chevrolet site and the Harry’s Army and Navy site, I think the last time if I recall correctly, it was confirmed that there is an application for a super Wawa to go in the corner of 130 at the Harry’s Army And Navy Store? PRESIDENT GORE: I think that’s correct. MR. KEELAN: At that point in time, nobody knew of a plan for a super Wawa or any type of gas station going into that Patterson Chevrolet site or the neighboring site. Is that still the case? MR. RICCI: We still do not have a plan for those two sites. MR. KEELAN: I appreciate that answer Mr. Ricci, but that wasn’t the question. The question was, does anybody know of plans to submit plans to the township or to the administration or Council or the planning board? VICE-PRESIDENT KENNY: Plans don’t come to us. But I’ve heard that there’s interest in a Wawa going there. MR. KEELAN: So, what came first is my question. Nobody seemed to answer it. What came first? The idea of putting a Wawa there or the idea of this land ordinance item should change? VICE-PRESIDENT KENNY: My understanding is that Mr. Forshner raised it with regard to the Route 130 property; the former Harry’s Army Navy property raised the potential illegality of our current ordinance. It was reviewed and Mr. Caton, our planner… I don’t think we have a legal memo from either our planning board or Zoning Board attorneys. Maybe I did see a memo. MR. RICCI: There was one from Mr. Zamparelli. VICE-PRESIDENT KENNY: Frankly, I was surprised since it was a conditional use that that type of requirement would be illegal. But in reviewing the case law, it certainly seems that that’s where the courts have gone to say that these types of restrictions are arbitrary and don’t serve any purpose. At one time, I think the purpose was supposed to be that they have a lot of outdoor repairs at gas stations. It was considered maybe a hazard that there could be an explosion, a fire that could spread easily to other areas and you didn’t want another gas station too close. Most people don’t regard that as a legitimate fear anymore. MR. KEELAN: Technology has apparently improved. Like myself, I doubt that there’s anybody in the township who opposes the idea of a super Wawa. Like I said before and to my friends many of times, they don’t discriminate against my credit card or my cash. It’s a wonderful program; they’re very generous to this township. There’s been community service’s that I’ve been involved in and Wawa has always stepped to the plate to service this community. And I love the idea that Wawa would be over here and not discriminate against my credit card. However, if Route 33 is a site on Patterson Chevrolet or the neighboring site, and the super Wawa is planned there, we threaten to create three dark holes on 33 as if we don’t have enough already. You have the Getty, you have the Exxon, and you have Mr. Steel’s BP. The repercussions of this are far reaching beyond just having a nice brand new shiny Wawa that’s convenient for people to get gas. How many people does a super Wawa employ verses what Mr. Steel employs, the Exxon employs, and Getty employs, the Hess employs, et cetera, et cetera? What is it worth to you? I’ll tell you right now, I think it’s worth going to court and defending this or allow the Zoning Board to do their job and grant the variance like they did for the Quickchek on Olden. You guys, you got to get out of this one. It’s a bad idea. You’re going to put three more dark holes on 33 as if we don’t have enough vacancies already. COUNCILWOMAN SCHIRMER: John, for the record, for that proposed site, has anybody submitted plans for a Wawa? MR. RICCI: No, we do not have any plans for that site. There have been some discussions about potential uses, but no plans have been submitted.

10

MR. VINNIE CAPODANNO, 65 Englewood Boulevard: With regard to this matter, as a former councilman I don’t understand why an attorney would go to the Zoning Board attorney and discuss the matter like this. When I think he knows far well that you can go to a Zoning Board and get a variance because it happened already in this town. You have the facility on South Olden; they never had a gas station there. There was a gas station right across the street. They put in a major gas station there, they went for a variance. They got the variance. So how can you say that you’re worried about it being challenged in court. When you’re basically almost can get a variance. And you’ve been doing this for how many years. You’ve been doing this for many, many years. Now you’re going to change the rules that all these stations adhere to this rule. What says that they’re not going to go to court and challenge it? VICE-PRESIDENT KENNY: We have quite a few gas stations that are within 1,500 feet of each other. COUNCILMAN PONE: Hess and Bob Gould’s Citgo. VICE-PRESIDENT KENNY: The corner of George Dye. MR. CAPODANNO: The ones that are under this rule, what’s to say that they don’t go to court and now they’re going to challenge it and bring you into court? MR. RICCI: Over what? MR. CAPODANNO: You changing the law. MR. RICCI: There has to be some merit to their argument. There has to be some… MR. CAPODANNO: What’s the merit to their argument? MR. RICCI: There’s an Appellate Division case exactly on point saying you cannot have these kinds of restrictions. Why would we continue having that restriction in our ordinance which is basically illegal? We need to remove that. MR. CAPODANNO: So what’s next? The liquor store? The 1,500 removal of that? MR. RICCI: If there’s case law on it, we might have to do that too. VICE-PRESIDENT KENNY: We will still have the requirement that a gas use has to be 1,000 feet from a church, synagogue, hospital, and those kinds of things. Frankly… COUNCILMAN MEARA: Why is that? VICE-PRESIDENT KENNY: I’m not sure. COUNCILMAN MEARA: Is it to be, I guess, perceived that that’s not challenged because that’s proximity? VICE-PRESIDENT KENNY: I think what the courts are saying with the gas stations is the government is not supposed to be in the business of limiting competition. Saying okay, you can have a gas station here but I don’t know if anybody else can have a gas station or that you can have a fast food place or nobody else can have one. But the proximity is more the nuisance and the safety issues, proximity to a church. Frankly, I haven’t measured all the distances as to how far any of these given sites are from a church. I don’t know. MR. CAPODANNO: Have you looked into the repercussions, say if a Wawa does come down 33, what it’s going to do to the gas stations that are next to it? Could it knock them out and have vacant gas station? VICE-PRESIDENT KENNY: I don’t think that’s an appropriate thing for us to do. I don’t think a court would ever uphold that. Again, that’s limiting competition. COUNCILMAN PONE: Vinnie, what would be appropriate would be to look at the traffic and the planning board and if it goes there, via this change, would have to do all that still. We’d have to address traffic and buffering and all the normal things. So I agree with Dave in the sense that… and Mr. Gambino said it too. It’s actually inappropriate probably for a governing body to address competition among businesses, but we certainly have to look out for the residents. We have to look out for the safety and the traffic and all the things that can impact people that live here absolutely. Can we limit competition? Boy, I wish they could in my business. I have to reinvent myself on a weekly basis with competition.

11

COUNCILWOMAN SCHIRMER: Can I add to that? Because I feel the pain because with my business where I was located, I called the Mayor’s office, I called everyone because there were child care centers going up left and right. Some three miles, some two miles and the same answer I was given was, we cannot hinder competition. If it goes past the planning board, it’s approved. MR. RICCI: One of the things we did consider was having some other limitations or regulations concerning traffic because that’s the driving force here. And we finally came to the conclusion that because we’re dealing with state highways, the applicants are going to have to go to the State Department of Transportation for a highway access permit. They’re going to control it, we’re not. So we did not include any standards for traffic limits. That’s something that the state is going to look at. VICE-PRESIDENT KENNY: Any new use. If a new auto dealer went into Patterson they don’t need highway access permits, they already have them. MR. RICCI: We’re talking about Route 130. There’s a gas station application in, they’re going to go to the state for a highway access permit. MR. CAPODANNO: They went through this any way through the state? MR. RICCI: Correct. So they’re going to regulate the traffic aspect of it. MR. CAPODANNO: Not only that but the environmental impact… VICE-PRESIDENT KENNY: Oh sure. They’re still subject to all other requirements under the ordinance. MR. RICCI: Absolutely. Anything with storm water management, any other issues are still there and there are still fourteen conditions in the ordinance that have to be met. MR. CAPODANNO: I was concerned about them businesses that are down there. But I just want to know if there are other conditions that have to be met? MR. RICCI: Yes. MR. CAPODANNO: This is the only one that’s being removed is the 1,500 foot? VICE-PRESIDENT KENNY: Yes, and frankly, most of the other conditions relate to an old-style gas station where they would do repairs, no outdoor repairs, that kind of stuff. Which, you don’t see too many gas stations that do repairs anymore. MR. CAPODNANO: Yeah, if they’re going to be putting underground tanks in. VICE-PRESIDENT KENNY: They are subject to every law in that. MR. GARY FORSHNER, Attorney with Stark & Stark: I’m here simply to address some of the questions that were raised since my name was mentioned as was my client did not necessarily intend to approach you here this evening. But none the less, I’m happy to address some of the questions that I think were raised. I think you’ve actually addressed most of them. But since I’m perhaps a little more intimately involved with some of the background, I think it appropriate that I share that knowledge with you.

My firm, myself, in particular, represents a particular developer who happens to have a proposed super Wawa with a gas component to it as a proposed tenant. I represent the developer. I do not represent Wawa. I just want to be clear about that. We have never spoken to a representative of Wawa. So when you ask about Patterson Chevrolet, I do not have any specific direct knowledge about that. I’ve heard some of the same rumors you have. But that’s about the extent of that.

The application that’s pending before either the Planning Board or the Zoning Board, depending upon who will have jurisdiction, is an application for a site at the old Harry’s Army & Navy on Route 130 has already got an approval for a pharmacy. And that’s not being built as you presumably know. But in fact, we’ve proposed to amend the approval and ask for the opportunity to submit this at an appropriate location. During those conversations with professional staff here at the township, which is as you might imagine, some of the comments are perfectly appropriate for us to discuss an application with to get their guidance and input to make sure that we’re satisfying all of their requirements. That’s a conversation that we’ll sometimes have.

In this particular case, we did speak with township professionals and we pointed out that there was, in fact, an illegal and clearly unenforceable provision in your ordinance. That was the impetus for what is being discussed here this evening. It is very clear to me, and I’ve been practicing land use law in particular for most of my 24-year career, that this ordinance is in fact unenforceable for the reasons that

12

you have stated here this evening. I am not aware of one case that has looked at a situation where there has separation distance between like uses that has upheld that ordinance, are indeed, to the contrary. In every single instance where that issue has gotten before a court, to my knowledge, the ordinance has been stricken for the reasons you talked about. There has to be a planning reason for the land use ordinance. Competition is not a planning issue. It is not an enforceable requirement in terms of creating those types of restrictions.

Having said that, not only are we subject to all of the different conditional use requirements, literally within your ordinances and within the state requirements for gas stations, for highway access provision of the DOT. We are subject to literally hundreds of requirements that have to be satisfied before we can ask for and get a building permit to construct this site. We are at the infancy of that process. We will have to establish to the satisfaction of the Planning Board and the Zoning Board as well as various state, county, and individual agencies that we have satisfied all of those applicable requirements.

So, we do have an application pending. This was one particular issue that was potentially problematic. We’ve brought it to your attention. I think this Council has shown the courage to acknowledge the fact that they have an ordinance that has routinely been declared to be unenforceable and illegal. And you have chosen to agendize, which I would submit, is the appropriate action to take under these circumstances. As a result, we anticipate and would like to continue to proceed with our application. We think that this is not only supportive of that application, but of the case law that I would submit is very clear and consistent with the fact that there cannot be provisions within the context of the land use ordinance that regulates competition as opposed to land use issues, and hence, why I think this issue is before you. If there are any other questions, I’d be happy to answer them and address them.

COUNCILMAN MEARA: Mr. Forshner, in your discussion, you had said that your experience is that the challenges that have gone forward usually stand in the applicant’s favor because of these proximity issues. So what I’m reading from what you’re saying is not all of them go forward. I guess when a municipality has an ordinance like this, and a potential developer sees it, they may look at it as a stumbling block; I don’t want to spend the money to go through court, so it acts as a deterrent.

MR. FORSHNER: I would submit to you that that’s not even a conversation we should be having. What you’re suggesting is that this township should have an illegal unenforceable ordinance and that should be providing a stumbling block. I would submit that that’s contrary to the very oath that this Council is taking and that is to uphold the law. The law is very crystal clear on this issue. So it’s respectfully not a conversation that I think we should be having. I think more just as importantly as a practical matter, it probably engenders at least as much litigation as it would prevent. Because what it does is, it says to a developer, if you want to develop and you can’t get your use variance. You need to take us as a municipality to court. I don’t think that’s what the role of this Council is. I don’t think that’s a role that you want to delegate to your Zoning Board of adjustment. Nor do I think that you want to encourage that kind of litigation. As I said, this ordinance is clearly unenforceable. I would submit that it should be stricken merely of that basis. It’s not a planning issue, it is not political issue, and it is not a personality issue. It is a pure and simple legal issue. It is unenforceable. It’s an illegal ordinance. At one time, these ordinances were prevalent, but in the past many years, and to my knowledge, at least twenty years or so, the courts have routinely said that these are illegal and unenforceable. That I would submit should be the beginning and the end of this of this conversation.

COUNCILMAN MEARA: When you said that competition is not to be considered in the planning. Is safety one of the issues that can be considered?

MR. FORSHNER: Of course. COUNCILMAN MEARA: I’m assuming that when this was originally struck, that it was with the intent of providing safety by not having too many gas stations near each other.

MR. FORSHNER: Let me make it perfectly clear in that regard to perhaps a disadvantage and I apologize for interrupting you. At one point in time, these ordinances were prevalent because gas stations were very different than the gas stations we have today. You had environmental problems with these gas stations. Now you have double wall tanks that are very highly regulated that are subject to a long list of regulations from the Department of Environmental Protection. You have in the context of certainly what we’re dealing with the highway access code and so you’re dealing with traffic on the state highways. You have regulations that you didn’t have before. You have protections that you didn’t have before. One can argue, and I’m not an expert on what existed thirty-forty years ago, before I practiced, probably when this ordinance was adopted. Perhaps they’re very legitimate concerns. So I’m certainly not suggesting that when this ordinance was adopted, that it was illegal and unenforceable. But given the case law that has existed, during my entire career in the State of New Jersey, that the courts have been consistent saying they’re illegal and unenforceable. So we’re dealing with those facts and that’s why this exists today.

13

COUNCILMAN MEARA: So if safety is an issue that could be considered. If you have an area where there’s no gas station, and then you have a gas station come in, would that area be considered more dangerous regarding all of the safe guards that a gas station may have? Would that be considered more dangerous now that a gas station is there? MR. FORSHNER: I would submit not. Obviously, we have gas stations all over, not only Hamilton Township but the State of New Jersey and the United States of America. COUNCILMAN MEARA: I’m aware of that Mr. Forshner. But I’m asking you a specific question. If there’s no gas station, and the gas station locates there, is that more dangerous now that a gas station?

MR. FORSHNER: I would tell you my opinion, since I’m not an expert in terms of the engineering aspects of it. But the courts have declared that that’s not, in fact, the case. That there’s not a planning, there’s not a zoning issue for these types of ordinance in today’s day in age. COUNCILMAN MEARA: I was asking would that intersection be more dangerous with the location of a gas station? MR. FORSHNER: I think as with any intersection, it’s a question of whether the highway can handle the traffic and your DOT is very much going to regulate that and make sure that the traffic is safe and efficient. I would submit that if you don’t put a gas station in the appropriate locations, where it’s zoned for it, what you’re doing is you’re encouraging drivers to drive to another location. So are you making it safer by requiring people to travel longer distance to get a very much needed commodity? I would submit that you’re not creating anything by being safe.

COUNCILMAN MEARA: So the answer is if a gas station is not in an intersection prior and a gas station goes there, is that inherently now more dangerous because it’s a gas station with fuel tanks, so on and so forth, and I’m not getting an answer so I’m done asking questions, Mr. President.

MR. FORSHNER: The answer is very clear, that it’s not any different than it is. If you’re comparing it to a vacant lot that is not developed at all, I guess you can look at the entire municipality and say are we better off having the vacant lot rather than a residential home. Are we better off having an office building than a vacant lot? You can look at that any place, and say obviously that having a gas station or any use at that location is going to generate a certain amount of new traffic. But I think the point is that this is very much regulated at every level of government here in the State of New Jersey. We’re probably the most highly regulated state when it comes to land use right here in New Jersey. I dare say that all the levels of government including right here in Hamilton Township, will make certain that it’s safe and appropriate and that it satisfies all the approval requirements.

MR. ANTHONY: Almost every week there’s an accident there. The traffic is really bad. Even though I see one official talking. People keep calling, beeping. People go west-bound and try to make a left turn, south-bound and try to make a left turn. I understand that we need more businesses, but do we need more accidents? We think when Wawa opens, so the traffic control is going to be changing, try to be safe. But will the traffic be removed or are we going to get more accidents. I think we should think about public safety first. (Gentleman has very heavy accent is very difficult to understand)

MR. WALTER STEEL, 1060 Route 33: I own the BP. I am going to comment on the competition part of it. Seven years ago, Wawa attempted to build a Super Wawa on Route 33 with this ordinance in place. It’s been vacant for twenty years. I think the last time, because we had an attorney representing us, it was shot down because of the ordinance and the traffic patterns and things like that. Things have not changed in the seven years. I’ve owned a gas station for thirty years now. I understand where you’re saying safety, double walled tanks, but you did not take into account human error. You’re dealing with $8 an hour employees that can drop a tank. You have vehicles that come in there and run into that place and blow up. So you’re telling me that a gas station is, to answer your question is yes, a gas station is more dangerous than anything else that could be there. COUNCILMAN MEARA: Thank you Mr. Steel, do you have a law degree. I’m sorry Mr. President. PRESIDENT GORE: Through me please, Mr. Meara. Lawyer bashing will not be tolerated. I’m not laughing. COUNCILMAN MEARA: I am. MR. STEEL: I’m not bashing any attorney. It’s a simple question. And it will pose more danger. I’m obviously in it for my reason. You will have gas stations that are going to go out of business. I’ve experienced it, and it will happen. I know competition is great. But there’s eight gas stations; three major oil companies (Sunoco) which is pretty prevalent in this area. We have more than enough competition on that road. When you saturate an area… when you bring in a bigger competitor, is that wise to do that for competition reasons? I don’t think it’s going to do anything as far as competition. But if you think Wawa is going to out fool BP, it’s not going to happen. It’s going to hurt and affect my volume which in turn, is

14

going to affect every gas station owner on that road’s volume and they will be out of business. I have assumed 200,000 gallons, put it down to 100,000 gallons. It’s just simple math. If you have another gas station on that road (a ninth gas station) and a Super Wawa with 16 pumps, and if those people have four pumps, who do you think is going to take the volume? I just want to know. Seven years ago, do you know what stopped the Wawa from proceeding with building one on Route 33? Is anybody aware why? VICE-PRESIDENT KENNY: I remember it backed right up to a residential neighborhood as I recall. There was a lot of opposition. MR. STEEL: The residents actually hired the attorney. I also put money towards that. They were against it. You also have again residents backed up against that one that probably aren’t aware of it. There are rumors, I’m sure they are. I know it was this ordinance that stopped it. If you do away with the ordinance, because they’re telling you to, again, what is that going to be perceived? You’re saying you’re doing it to allow more business to come into this township. This ordinance is not going to stop or gain any more business from coming into the township. It is a deterrent for Wawa to coming here and may be a stumbling block. I’m not 100% sure I’m about 99% sure that this ordinance from our attorney is stopping him from coming in there. And there was state traffic that also took into account; traffic is not getting better on Route 33. I’m looking out for my back, and I just want to make that note. But trust me; if businesses go out of business, they’re going to come after the township. I can tell you that right now, there will be a class-action suit. I don’t know on what grounds, but there will be because you’re putting people out of business. I just want to make you aware of that as well.

MR. AUGUST SCOTTO, Mark Twain Drive: At that time this was discussed here, I went home and I saw a sign at Patterson that it was already leased. So I says, oh that’s alright. So then I see the sign is taken away after a couple of weeks. So I thought maybe you guys did that. When you have a business, if there’s a general regulation against any kind of business, to use it, but the first thing they look at is, is it a commercial area or a residential area? It’s a commercial area on Route 33 and to put them out of business there is ridiculous. Let’s face it, when you start cutting back on businesses, then what you do is cutting back on competition and competition is what is good for the people. Competition is where if a guy doesn’t do a good job, they got another guy to go to and that’s more satisfying to everyone. They just take it into consideration, oh that’s dangerous. If it’s dangerous then why aren’t all the gas stations? It’s not dangerous. What it is, is a group that wants to limit so they can make more money selling their product. You got to just leave it alone. You didn’t stop it, did you? Was that Council that stopped that deal on… VICE-PRESIDENT KENNY: The other Wawa?

PRESIDENT GORE: Seven years ago you mean? MR. SCOTTO: No, just recently. VICE-PRESIDENT KENNY: We had nothing to do with anything. PRESIDENT GORE: It wasn’t a Wawa. John maybe you know, maybe he leased it for a matter and the deal fell through. Who knows? MR. Scotto: Who stopped it from being leased? MR. RICCI: No one. MR. SCOTTO: They took the sign down, MR. RICCI: There was a ‘for sale’ sign up. MR. SCOTTO: No lease. MR. RICCI: It has nothing to do with us. MR. SCOTTO: When I passed it, and you guys were talking about it, it said already ‘leased’, not for lease anymore. Then they took that sign down, and put a sign up ‘for lease’. So somebody went there and stopped it. I’m wondering who it was. I thought maybe it was one of the Zoning Boards or planning boards. VICE-PRESIDENT KENNY: There’s been no application from that property. They may have had a deal with somebody that fell apart.

PRESIDENT GORE: Private deal, non-governmental. Believe it or not, not. MR. SCOTTO: That’s good to hear because I believe in competition.

15

MR. GAMBINO, 1007 Hughes Drive: I have a question for Council. Has there been any plans for a Wawa to come in over there on Route 33? PRESIDENT GORE: Council is the wrong person to ask. VICE-PRESIDENT KENNY: Plans don’t come to us. PRESIDENT GORE: But if you’d like, I will ask Mr. Ricci, he would know. MR. RICCI: I think I answered that question earlier. We have no plans for that site. Nothing has been submitted, but there was a discussion about potential usage. PRESIDENT GORE: How about Route 130. What’s the status of that? MR. RICCI: Yes, there is a plan that was submitted. MR. GAMBINO: So if there was no plan that was submitted, it still has to go in front of the Zoning Board? PRESIDENT GORE: Yes, everything. MR. GAMBINO: Everything, the whole ten yards? So that’s when the real fight is going to be. VICE-PRESIDENT KENNY: That’s right. There’s a lot of issues that have to be heard by the planning board or Zoning Board. MR. GAMBINO: So basically, I’m going to tell you this. When it does go in front of them, I will be against it, because I truly believe that it will not handle the traffic on Route 33.

But I’m going to tell you this, I am for this ordinance. Because I do believe this is the problem with our country today. Is that there’s no more competition. People don’t have the right to really choose anymore. If you look, you have the airlines they pulled together; the oil companies pulled together, and who knows else out there has pulled together. So everybody is moving their manufacturing to Mexico, China, and every other place. If you look on 33 right now, you have a Getty Station, you have a BP Station, you have an Exxon Station, and you have a Hess Station, and I’m not sure who else is on there; you have a Shell station, Citgo. The people have a right to choose along there who they want. I’m for competition in this town. Any type of competition, enter at your own risk. So I’m again for this ordinance. But like I said, if Wawa does come and they try to put it on Route 33, the traffic will not handle it there, it’s impossible, and I think you know that. VICE-PRESIDENT KENNY: It’s certainly a concern, I agree with you. MR. GAMBINO: If I was them sitting back here, I wouldn’t worry.

MS. TENILLE McCOY, 135 Moffatt Avenue: Just one of my concerns would be has anyone actually challenged or filed against this particular ordinance? MR. RICCI: Not against this particular one, but against other similar ordinances, yes. MS. McCOY: Here in… MR. RICCI: No, in the State of New Jersey. MS. McCOY: Why are we making the first move? That’s kind of my question. MR. RICCI: I think we answered that already. Because if you have an illegal ordinance, that you know is illegal, you need to fix it. MS. McCOY: One of our issues is we pretty much heard from many of the gas station owners. I just don’t think this is something that we need to be getting our hands into. We need to kind of sit back on this one. And unfortunately, I am not for this ordinance. There’s way too many gas stations. We don’t need another gas station on Route 33 guys. I don’t drink Wawa coffee, and it’s just something that I don’t think we need in Hamilton Township, we don’t need that on Route 33. We need to really look at these business owners and what we will need for the residents of Hamilton Township.

MR. DAN KEELAN, 4 Fisher Place: To me, this is not about competition. I believe in competition and I empathize and sympathize with Mr. Steel and his competitors on Route 33 that this could be highly attacked. I would not like to see us lose businesses in this township. What is our vision for a township, the one we live in, work in and play in? That’s what this is really about to me. At night you drive down 33 and you see white lights, red lights, blue lights, all sorts of lights, as well as tail lights and head lights.

16

As I drive down 33, I really don’t have a vision in my mind of a large retailer , yet another large retailer sitting on 33 obstructing traffic and adding to pollution of retail signage and that’s what this is about to me.

So with that said, I’m all for competition. I’m a capitalist like anyone else in this room. Let’s walk through a process, if this ordinance does not get moved. You table it, which I applauded your move several weeks ago to table this. I thought we were all on the same page. You table this; the application was made for any other gas station within 1,500 feet of another gas station. That applicant goes to the planning board and the Zoning Board. A decision is rendered based upon whether that meets the various requirements included in this ordinance. Am I correct?

VICE-PRESIDENT KENNY: Well, no the Zoning Board gives them relief from the ordinance. That’s why they would go to the Zoning Board. That’s the nature of the Zoning Board is to relieve applicants from the requirements of ordinances. MR. KEELAN: Maybe I stated my question incorrectly. So the applicant would have to go to the Zoning Board or whomever knowing that they would have to ask for relief from this? PRESIDENT GORE: If the ordinance were still in place, yes. MR. KEELAN: So then there are a slew of other requirements whether it is highway access or if it’s a township road, and a New Jersey state highway or county road. They would have to deal with the traffic impact studies, et cetera, and the tax and DEP issues. But this is one thing that’s just out of the way. So if this ordinance, if they don’t get the variance from the Zoning Board or planning board or whatever local board for that 1,500 foot waiver, then their only recourse would be to sue us. That’s what I understand? VICE-PRESIDENT KENNY: Correct.

MR. KEELAN: Has somebody threatened to sue us in advising Economic Development Director who I got the OPRA, I OPRA’d the information about. VICE-PRESIDENT KENNY: As far as I know, no one has threatened to sue us. But Mr. Keelan, I think it’s incumbent upon us as elected officials that if we have an illegal ordinance, its incumbent upon us to correct it and put it into conformity with the law. Each of us takes an oath to uphold the Constitution of the United States, of the State of New Jersey, and the laws of the State of New Jersey, and I take that oath seriously. The first meeting, I had my doubts. I didn’t believe that this ordinance was illegal. Well, I took some time to research it. I got some of the memos from some people and I was wrong and they were right. Last time I thought this can’t be that this type of condition was illegal. Well, the courts have said, it’s not an appropriate ordinance; I don’t think it’s our job to say well, we’ll defend an illegal ordinance. I don’t think it’s appropriate.

MR. KEELAN: Thank you Councilman Kenny and Council President. Has anybody sought a differing opinion? PRESIDENT GORE: When the courts speak, unfortunately, under the state Constitution… MR. KEELAN: Has there been any other case law sought or opinions from other attorneys? Or have the opinions strictly come from the likes of Stark & Stark or others? PRESIDENT GORE: There are no other appellate division cases that are on point that are contrary. MR. RICCI: Mr. President, we also gave you an opinion from Robbinsville who’s going through the same consideration right now, as this issue has been pointed out to them as well.

VICE-PRESIDENT KENNY: I don’t think I saw an opinion from Mr. Forshner. MR. RICCI: No, you did not. There was an opinion from our planning board attorney, from I believe also Mr. Burbage who agreed with it. You have the planner’s opinion, although that’s not a legal opinion, and we have the comments from Robbinsville who are going through the same thing, and their attorney; all in agreement. MR. KEELAN: Does anybody believe Route 33 can handle this? VICE-PRESIDENT KENNY: I have concerns about that type of use at the Patterson Chevrolet property. But that’s really not the issue before us tonight. That’s what a planning board is there to deal with in part, and there are state requirements as it’s a state highway. And in fact, that’s what our ordinances do; it’s Route 33 and Route 130 are lumped together, they’re both state highways. I think maybe that’s something that should be revisited at some point because they’re certainly entirely different types of highways. But that’s not the issue before us tonight (the traffic capacity of Route 33).

17

PRESIDENT GORE: Dan if I may, I’m not sure that Route 33 can handle the traffic of the businesses that are there now. So yes, I can agree with you. MR. KEELAN: And there is a township road to join that property correct; two township roads, right? VICE-PRESIDENT KENNY: A piece comes out to Nottingham Way, I think Whitehorse-Hamilton Square Road. COUNCILMAN PONE: Paxson goes all the way through. MR. KEELAN: In summary, I would say, that in having a vision of this community and what we want it to look like, it is a sad state of affairs that people are looking at the appellate court system to dictate to us what our community should look like. We have Hamilton Plaza across the road from there, we have the cottages a block or so over. We have an opportunity to develop that area into a walkable pedestrian friendly development that would be more suitable to this community and this desire for a safer, walkable, pleasant looking community. I don’t think any gas station would limit itself to a vision that would bring this township back up to the image that we’ve always had for it; safe, friendly, walkable. This is not suited. If the threat of a lawsuit is going to dictate to you what this township will look like, it’s really sad. COUNCILWOMAN SCHIRMER: I just want to clarify something and be clear about something. Lindsay, if you can help me out with this. It is my understanding that if a business desires to come into a location, we cannot prohibit a business from applying to that location. They have to go of course through the processes. They have to go through every legal step that there is. But we cannot legally prohibit a business.

MR. BURBAGE: That’s correct and in fact, it wouldn’t come before this body anyway. Any new business will either have to go to the Planning Board or the Zoning Board. It would go through our Planning Department. As far as I know, there are rumors as to what’s going to be on Route 33 and what’s not going to be on Route 33. This ordinance change tonight was initiated simply by the fact that a regional discussion in two or three towns said that these restrictions are not legal and they’re not going to be upheld in court if they’re challenged. Why we would want to invite a lawsuit when we know that the ordinance is illegal? It just doesn’t make any sense. It is this body’s job to amend ordinances, to bring them into compliance with the law. And that’s basically what you’re doing. COUNCILWOMAN SCHIRMER: Thank you Mr. Burbage. COUNCILMAN MEARA: Whether you’re debating or you’re just trying to make a point, you do the research to get information to support your point of view. Whether it’s a case law or facts, whatever it may be. Before I vote on this tonight, as I read Phil Caton’s memo, he did put case law in here. So am I to assume that there has been no rulings that put safety above the unintended consequence of limiting competition because I don’t see it here. So is that what I’m to read from this?

MR. BURBAGE: I’m not sure I follow you if you’re directing that to me. COUNCILMAN MEARA: We have the Livingston case law in the memorandum, but there is nothing in here showing where a judge ruled in favor of safety verses the unintended consequence. What we’re saying based on Livingston is, the judge is ruling in favor of unintended consequences such as competition. So he struck down the ordinance. And so what I’m saying is because I don’t see any case law here that a judge in one instance or two instances supported the ordinance, because they originally set up for safety, correct? That’s what we’re assuming. And what Phil’s memo actually says, “The proximity requirements are featured in many municipal zoning ordinances. In date from a time when service stations were considered dangerous, noisy, and unsightly; however, these requirements can have unintended consequences of discouraging development.” So what we’re saying is Livingston and maybe other cases are ruling in favor of striking down the zoning law. And they’re saying that the unintended consequences overrule safety. What I’m asking, is there any case law, before I vote on this, can I be assured that there’s no case law where a judge ruled in favor of the ordinance and put safety over unintended consequences of competition? MR. BURBAGE: Not that I’m aware of, no.

MR. RICCI: Safety would be an issue that came before the planning board. And they can make that part of their consideration in granting the approval or not. What the courts have simply said is, you can’t have this hard and fast rule of a distance. It can’t be closer than this, period. And that’s what this ordinance and many other ordinances have done and that’s what has been struck down. COUNCILMAN MEARA: What Phil is saying is that it’s requiring municipalities to defend the separation standards by demonstrating that they are reasonable and necessary to safeguard against a recognized danger. I’m just asking, can someone definitively tell me that there is no case law on the other

18

side of the issue, where a judge ruled that because of safety or a recognized danger; gas station, gas tanks… MR. RICCI: We’re not aware of that. COUNCILMAN MEARA: So that means, there could be case law out on the other side of the issue?

MR. BURBAGE: There could be, but in all honesty, when we research these type things, it’s not rocket science. You put in the issue, and research that particular issue and in my opinion, during the course of our research, had there been case law, as you’re questioning, it probably would have come up. Is it possible that there’s a case out there that we didn’t see, certainly. There’s millions of cases. So there could be, but I doubt it and I’m certainly not aware of one. VICE-PRESIDENT KENNY: And as I recall, one of the decisions the court indicated that it didn’t think any proximity ordinance could be justified, as I recall that.

MR. STEEL: You brought up the fact that it was initiated. That’s why I have a problem. In the newspaper on the 11th (Trenton Times), it was initiated by the Wawa attorney to inform township officials of the ordinance. So again, it goes back to being biased. You’re saying that you want to do away with the ordinance because it’s illegal, but it was brought up to you by Wawa who has interest in building a Wawa in this township. So which is it, that you’re worried about the law or because Wawa brought it? Did Wawa actually lose because I’m not an attorney, but did they lose on this ordinance and will that be upheld in law that they tried to oversee that? If you do away with this law… I don’t know what the legal ramifications are. What I’m trying to say is that they lost on this ordinance why they couldn’t build seven years ago and if it’s still in place, they wouldn’t be able to proceed? MR. RICCI: I don’t know that that’s why they lost on this ordinance. None of us were here at the time and I don’t know what the decision of the Zoning Board at the time was. Whether it was strictly on the distance or was on some other factors. I’m not sure what the site was, there could have been other factors involved. None of us up here know that. And it really doesn’t matter who brought it to our attention, it’s been brought to our attention that this is illegal. It’s very clear in the case law. There’s no doubt about it, so it needs to be corrected.

VICE-PRESIDENT KENNY: Mr. Steel, I indicated I was skeptical that this was illegal (this ordinance) when it was first raised to me. Well, I was wrong. I looked at the law and it’s not something that can withstand the scrutiny of a court. MR. STEEL: I guess what my question is without having legal background, if they did lose on this ordinance, and this is why, they cannot proceed (is it grandfathered)? COUNCILMAN PONE: It’s a different property. PRESIDENT GORE: This is the 130 property. This has nothing to do with you.

VICE-PRESIDENT KENNY: You’re speaking about the Route 33 application some years ago. I don’t even recall if it was defeated, it might have been withdrawn because of so much public opposition. MR. RICCI: And it certainly wasn’t for the Patterson Chevrolet site. It would be a whole new application, and you’re going to have an opportunity to have your say at the Planning Board when you see the particulars. That’s not what’s here tonight.

PRESIDENT GORE: If I may Mr. Steel? And the paper apparently is wrong; it mentions an attorney for Wawa. I believe we had testimony tonight from the gentleman from Stark & Stark. Sir, you don’t represent Wawa, you represent the developer, correct? MR. FORSHNER: Correct. PRESIDENT GORE: You’re firm does not represent Wawa or anything to do with this property? MR. FORSHNER: Well, Wawa is the application that I’m handling and it anticipates a Wawa going there. PRESIDENT GORE: Anticipates a Wawa, but you’re retained by the developer. Even though I agree that the newspapers is factual many part of the times, it’s a little nuance that Wawa is not the one that brought it to the township’s attention. MR. STEEL: And you were asked several times if any of you were aware of a Wawa going in 33 and vehemently all of you said no. Tonight is the first night that I heard Mr. Ricci say, yes I am aware there have been discussions going on of a Wawa going in there. So it’s not planning sir, technically.

19

PRESIDENT GORE: I have discussions because (myself) you brought it to my attention. VICE-PRESIDENT KENNY: As councilmen, we’re not parties to those types of discussions. MR. RICCI: And I don’t know what that matters either. VICE-PRESIDENT KENNY: But I’ve just heard rumors.

MR. STEEL: When I go on that site and see that their plans are to build a Wawa, strip mall, and bank, I know its coming. MR. RICCI: But that has nothing to do with this ordinance tonight. MR. STEEL: If you do away with the ordinance, it does. MR. RICCI: They could still make that application. MR. CAPODANNO: Who’s the developer for the site on 130? MR. FORSHNER: I think the name of the applicant is Crosswicks-Hamilton if I recall correctly. But it’s an entity that was specifically for that particular site. MR. CAPODANNO: Well, who do you represent? MR. FORSHNER: I represent that developer. MR. CAPODANNO: Who’s the developer on the 33 site? MR. RICCI: No, it’s not the same one. I believe its Delco. VICE-PRESIDENT KENNY: I remember there was an article in the paper. MR. RICCI: There was some confusion at one point in a story that eventually got corrected. It wasn’t the fault of anyone in this room. It was another news source that said that Delco was the owner of the site at 130 which is not accurate. MR. CAPODANNO: Hopefully nobody wouldn’t object to a Wawa gas station going in on that site over there by the MarketPlace. The thing that’s concerning everybody is if you do away with the rule, there could be one going down on 33. But when did this discussion start about the 1,500 foot rule? When did you become aware that it’s illegal? Being that Quickcheck put a gas station two years ago that had to go before the Zoning Board. How come nobody ever looked into the fact that that was… MR. RICCI: No one raised that as a legal issue at the time. MR. CAPODANNO: So this is basically saying that he’s not doing this (correct me if I’m wrong). He’s not doing this because he wants to discourage this from going to the Zoning Board. He’s doing this because he’s letting you know that this is an illegal ordinance. Is that basically what you said? MR. FORSHNER: Yes. MR. CAPODANNO: I think that you should look into if you could give them a whole book of your ordinances. PRESIDENT GORE: With all due respect, I think your area is land use and our ordinances deal with much more than land use. But I have no problem with the gentleman going through our land use ordinances. MR. CAPODANNO: I always said this to Gilmore; half of the things in there are outdated. MR. RICCI: Actually, we have invited several folks in with expertise in this field; planners, engineers, attorneys, to offer comments and suggestions about our land use code. MR. CAPODANNO: Then you’re heading in the right direction. I think the fact is what’s worrying everybody that if when you do change this ordinance which I know you’re going to do, you ought to really look into the separation of like that site compared to the site on 33, which can be really a nuisance when it comes to traffic and everything else. MR. KEELAN: Just to be clear, on a couple of things we were just talking about, based on the question from Councilman Meara. It is not definitive that there is law preventing this on a type of development on

20

33? The issue of safety trumping ‘unintended consequences’ is something that is admittedly not been explored? PRESIDENT GORE: Or perhaps the judge in that case may have found that there’s a more appropriate area of the regulatory process to deal with safety; the DEP regulations, the transportation regulations, and any other general health or safety issues. Yes, that’s an actual fact that will be dealt with, safety issues and those other forms. MR. KEELAN: It’s not what I heard said, but Maybe Mr. Burbage should… PRESIDENT GORE: Mr. Burbage, is what I said fairly accurate? MR. BURBAGE: Yes sir. In fact, the issues that a judge addresses in a case are only the issues that come before him. He doesn’t go off on his own and explore things. The issue of safety and not to that this body is putting their thumb up and their nose up against safety. The safety issues will be addressed at the appropriate forum; either the planning board or the Zoning Board. This has only to do with the distances. If the removal of the distances is going to in a specific factual application, create a safety issue, then either the DEP or the Department of Transportation or the planning or the Zoning Board, if they do their job, will find those and prevent it from happening. But that’s what not what the issue is tonight. The issue is the distances between gas stations and fast food organizations. MR. KEELAN: You’ve taken us down a different path then I intended to go the ordinance talked about safety being the reason for the 1,500 foot proximity requirement, and then we’re talking about something bigger? MR. BURBAGE: That’s not what I said. All we’re talking about tonight is the distance. Councilman Meara asked me a question as to whether safety, were there any cases specifically addressing safety, and I have not come across any in my research. MR. KEELAN: So I would encourage that action be taken at the direction of Council before we proceed with this. Again for clarification and I understand the ruling on the Exxon Livingston case, although Livingston did have a proximity requirement in their land use ordinance that case was decided in the favor of Exxon, not based on the proximity but based on statements from the township stating that they did not specifically want a gas station at that new development. MR. BURBAGE: I believe that’s exactly what you said the first time you came up. There’s a body of case law, not just that one case, you have to look at all of them and take the totality of the opinions. That is one of the aspects of the Livingston case; they didn’t want the gas station there. MR. KEELAN: So since that has been cited as a definitive indicator, in the illegality of this land use ordinance and it’s not the definitive. MR. RICCI: It’s pretty definitive that the court struck down the proximity standards. MR. KEELAN: Because some idiot said I don’t want an Exxon. MR. RICCI: It doesn’t matter. We have idiots who get up here every night and say things. COUNCILMAN MEARA: I don’t think that was called for. MR. RICCI: I’m not calling you one Mr. Keelan. COUNCILMAN MEARA: Mr. President that was uncalled for. PRESIDENT GORE: Let’s have order, Mr. Ricci and Mr. Meara, Mr. Keelan has the floor, proceed. MR. KEELAN: Consider your own vision for this township and what it’s going to look like. It is your vision for this township to have Route 33 a retail nightmare filled with gas stations and unintended consequences of lights out at three or four or more properties. Is that your vision? It isn’t worth stepping into the plate and protecting your vision and your constituent’s vision for what this township ought to look like. Mr. Kenny moved to close the public hearing and adopt, seconded by Ms. Schirmer; PRESIDENT GORE: It’s been moved and second, any member of Council wish to address the ordinance before we vote on it? COUNCILMAN MEARA: During your research on case study Lindsay, did you find any case law where the ordinance was struck that there was an unintended consequence of a business I guess hampering

21

competition that was going to locate next to a church, school, library, hospital, or charitable institution place of public assemblance? MR. BURBAGE: No, but I’m guessing the reason the Wawa seven years ago was defeated was for those reasons. COUNCILMAN MEARA: But what I’m saying is we have case law in our backup document saying that courts have struck down the ordinance because of unintended consequences. But it seems like its saying when one gas station wants to locate next to another. However, we have another part on this ordinance that mentions places of worship, so on and forth. So what I’m asking is, since we’re keeping a proximity issue in this ordinance, did you find case law where the judge also ruled against the ordinance because it was a gas station… maybe it was a pharmacy? Someone wanted to locate close to a hospital, school, library, and the judge knocked down the 1,500 foot rule because of unintended consequences? It was hampered competition? MR. BURBAGE: If I follow you, I did not find any cases that specifically said that. But as our ordinance is written and will be if this ordinance passes, it will still have those provisions. You can have distance limits. If you have specific and reasonable philosophy behind it, if you have a reasoning of ‘hey, we don’t want little kids, church goers, lots of traffic’ whatever the reasons, you can still have limits if the reasons are appropriate. COUNCILMAN MEARA: Safety. MR. BURBAGE: With those particular institutions, yes. I think the case law shows that just having a distance limit is not legal because there’s no justification for it any longer at least with gas stations. Now I will say that in my research I was looking at gas stations; I didn’t look at anything else but that. COUNCILMAN MEARA: I’m having a difficult time with this ordinance because, one, we’re striking down proximity, but in another part of the ordinance we’re keeping proximity. I’m not aware if there’s also case law where a judge knocked down an ordinance for proximity near a school, church, or whatever because of the same reason. It’s not in my backup documents. MR. BURBAGE: In talking about distances, this again, I’m not saying that the court said you can’t ever limit distances. For instance, we have an ordinance that came into play two or three years ago before the Planning or Zoning Board out on Route 33 (adult bookstore) and it was too close to a school. It was too close to a residential area. It was too close to a church; they hit all three of them. And you can still have those types of ordinances. It’s just you can’t have an arbitrary… two gas stations can’t be within 1,500 feet of each other. That’s the bottom line. VICE-PRESIDENT KENNY: Or the fast food restaurants can’t be within 1,500 feet of each other. It’s the same concept. COUNCILMAN MEARA: (Laughter) This is so interesting. PRESIDENT GORE: Do you need more clarification Councilman Meara? VICE-PRESIDENT KENNY: The real distinction is one of nuisance or public safety. As a body we can determine, yeah, it’s a nuisance if a gas station or a fast food restaurant is too close to a church or a school. I think the courts will recognize that that’s within our purview, but to say, well you can’t have a gas station next to another one when you’re only real reason for that is to diminish competition. Because let’s face it, you go anywhere in the country, there’s four gas stations at some intersections, one on every corner. You have gas stations next to gas stations all the time and it’s pretty hard to say that that’s a safety concern in 2013. I think that’s what the court opinions really looked at. Yeah, before when they used to the tanks weren’t nearly as safe, when they use to be doing outdoor repairs and they had cars piled up at the gas station and junk cars behind it, those types of things then the court upheld these proximity regulations. But times have changed, you don’t have that. You have very few gas stations that perform repairs anymore. I think on 33, I guess the Exxon still has bays, the Getty might have some bays, Hess doesn’t, and the BP doesn’t. COUNCILMAN MEARA: The other question I had Mr. President; we’ve been talking about redoing the codification. I know during the zoning on the Italian-American, issues came up where I think our Code says you must have DEP approval. But now there’s an LSRP program and that’s not in there. Are there many things in our zoning now that need to be changed such as this, that there’s case law that we could be accused of the same thing. If we leave it in, there’s case law saying that that’s being struck down, it’s illegal. MR. BURBAGE: Most certainly and as Mr. Ricci indicated, earlier undergoing a review at this time not just land use, but I think we’re in process of a recodification. There was the process that Mr. Ricci… and that will result in coming before this board again with other changes for the very same reasons that we’re here tonight.

22

COUNCILMAN MEARA: I think what gives the public angst then is when you cherry pick an issue such as this one and you pull it out and do it separately instead of doing them all at one time and then you have a developer out there somewhere. That’s what’s giving some of the members of the public angst that if we were introducing all our changes at once, I don’t know that there would be so much concern so to speak. But when you cherry pick something whether it’s because a developer brought it to your attention or whatever it might be, then that’s when people start saying are you doing selectively. MR. BURBAGE: Since you’re looking at me, I assume you’re talking to me and as far as me cherry picking this particular ordinance for change; I got a memo just like I do on everything else. I got a memo from the Planning Department that said please take a look at this. We want to amend this ordinance. I didn’t cherry pick anything. COUNCILMAN MEARA: No, I’m not referring to you specifically. I’m saying as a Council, as a township, we’re taking one specific instance and we’re changing that when there’s several. Whereas if we’re proposing them all at once. I don’t know that there’s a rush to do this. I don’t know. VICE-PRESIDENT KENNY: I’m very cognizant of the limits of our power. People come up here and sometimes say, do you really want another pharmacy? Do you want another gas station? Well, that’s not our role. We don’t pick what goes on to particular locations. All we do is basically; we have land use laws that say these are permitted uses. We don’t get to say 7-11 can’t come in, but Wawa can. That’s not the role that we have and it’s inappropriate for us to look at it that way. So we don’t get to pick and choose the businesses that come to town.

Somebody mentioned the threat of a lawsuit; there’s no threat of a law suit here. But frankly, we should do the right thing when we have to. We have to do the legal thing. We’ve been presented and I was convinced, I was skeptical in the beginning, but I’m convinced that this ordinance is invalid. So there’s no reason to say well, let’s just hold off because nobody’s suing us. That’s not the way government should work. If it’s not appropriate, we should deal with it.

People express concerns about a Super Wawa on Route 33. I have concerns about it too with the traffic on Whitehorse-Hamilton Square Road is so close to Nottingham Way. As I said, I’m not sure that site is 1,000 feet away from the church on Nottingham Way. So that’s an issue that has to be taken up with the Planning Board or the developer may have to try to go to the Zoning Board if the developer doesn’t comply with everything. But that’s not what’s here before us tonight. Although I sit on the Planning Board, I’ll have to weigh those facts and evidence when they come to us. I don’t see any rational basis to require a separation between fast food restaurants or gas stations, especially when I look around town and they’re very close to each other. It’s very common, fast food restaurants all want to be close together, so that’s not appropriate. And in terms of a vision of our town; yes, we do have a vision, but we also have to deal with reality with what’s there. We just went through a master plan review. Route 33 is a commercial strip. I think it’s a much improved commercial strip. There have been a lot of renovations and some new development there. I do think the Shoprite there; yeah sometimes it seems a little too crowded in that parking lot. But we’re not so brilliant that we can sit here and say every use that should come in, nor do we have the power to do that. So, if three people think the township can handle another pharmacy, then that’s their right to try to build three different pharmacies. You used to see it with office buildings, you’d say, ‘boy they must be crazy building another office building’. Well, that’s a developer putting his money at risk and building an office building. Sometimes it works; sometimes it doesn’t if the economy is not good. But that’s not for us to pick the winners and losers. So based on the law, and our duty as Councilmen, I’m prepared to vote yes on this ordinance. COUNCILMAN PONE: Mr. Kenny actually hit many of the points that I was going to hit. One being to Dan’s point, yes, vision. Would we like to see a corporate headquarters go there with high paying jobs if ultimately, we talk about Route 33 which we’re not really talking about tonight, of course we would. We would have preferred that over by the train station as well; we got housing. Mr. Kenny hit on most of the points that there are land ownerships; there’s property rights that come into play here, too. Somebody owns a piece of property, and gas stations for instance are already I believe a conditional use in certain zones always, they’re not a permitted use anywhere, is that correct? So they go to the Zoning Board. I can think of three (off the top of my head) without even thinking gas stations within 1,000 feet of each other, and they’re all existing. I think of my good friend Bob Gould who had a shiny new Hess Station built well within 1,000 feet of his place and he’s still out there plugging away every day and making a living. I don’t know how he does it, but he does it. People go to his gas station. I prefer to go to him than to go to the Hess. I prefer to go to the BP than I do to the Hess. It’s just because these guys are Hamilton guys. They’re great places to go, they keep their prices in line, and it works.

Again, Mr. Kenny pointed out, it’s not our role. I certainly understand their feelings, I own a business. I’ve seen places open up to try to undercut us right down the road. We’ve been very fortunate; we reinvent ourselves, we do a better job. Some of those places have gone out of business; we have not. In my business, you have internet sales that affect your business. You have all kinds of things that affect your business and you have to reinvent yourself. We don’t pick winners and losers as Mr. Kenny said.

23

I have to address Mr. Keelan’s other question. I’ve talked to other attorneys. I have great respect for the three sitting to my left who I have already heard from. I’ve heard from another one tonight and I know he represents one of the applicants which I understand the thought process there. I’ve talked to actually two other attorneys outside of this body and this room who have come to the same conclusion. I think the last thing we need at this point is a lawsuit. We’ve seen this go on before. To me, it appears that all of my understanding is they’re going to win the lawsuit. So instead of that I encourage the free market to play out. I really feel strongly that it’s inappropriate for this body to deny competition. It’s inappropriate; it’s just not our role. In fact, I’m a strong proponent of property ownership and property rights. We just can’t restrict competition, it’s not permissible for this board to do that and it’s not permissible to infringe on land ownership. Yeah, again to Dan’s point, you stated as if we have the option, right now we have a vacant piece of property if we are going to talk about Route 33; it’s vacant. It’s been vacant. It’s not helping us in any way, shape, or form at the moment. If we wait for some sort of high paying corporate entity to move in there we may be waiting twenty years. In the meantime, we could have had something go there that might actually help the town.

Lastly, I don’t often agree with Mr. Gambino, but I think he was right on the button tonight. He said that he feels we should go ahead with reducing these restrictions. But at the same time, he might fight it at the Planning Board. That to me believe it or not, that made perfect sense to me. Because I agree, there may be problems when it comes to the planning of it, when it comes to traffic circulation and you’re going to have to deal with is on Route 130. You’re going to have to deal with the state because you’re on a state highway. You’re going to be subject to DOT regulations, all the EPA and DEP regulations we talked about which are incredibly more stringent for gas stations than they’ve ever been, buffers and all that. All that is the appropriate place in my view. So that’s where we take the fight if we don’t like it. We’ve done a master plan review. We had opportunities there in public comment there if we felt certain things should be changed. It’s pretty hard to change a highway commercial zone, but that would have been the place to do it, but not through an illegal ordinance. I’m convinced from everyone I’ve talked to that this is an illegal ordinance. We have been trying to reduce some of our out of at a time codes and ordinances in the town. We’ve been trying to encourage business which I think this board has done a good job with. I think this is a no-brainer; this one’s not going to fly. There’s too much precedent in the town and it’s been shown to be illegal through case law. So that’s my feeling on it. COUNCILWOMAN SCHIRMER: I agree with Councilman Pone and Councilman Kenny. I live here; I deal with the traffic just like everybody else does. It’s frustrating but when you get lawyers involved, you can go to court and argue anything because everybody has a way of looking at something. But when the case law is there and when it’s been shown to not work, to not be legal, we have to correct it. Again, it’s not our place to dictate who can come in and who cannot come in. That’s why we have the Planning Board and the other boards in place and processes in place to make sure that whatever goes in there, goes in their correctly. PRESIDENT GORE: Madam Clerk, please poll the Council. COUNCILMAN MEARA: Mr. President, as was stated during much of the discussion, I don’t really see the rush to change this right now. I would have felt a little more comfortable if there was some more definitive information on case law that may have ruled the other way. Ninety-nine percent of our discussion has been on the gas station issue. However, one of the things that bothers me most on this ordinance is the 1,500 to 1,000 foot change for the fast food restaurants. And the only backup information said was to bring it in compliance with the service stations. To me, that seemed a little bit arbitrary. And for, why don’t we increase the gas station to 1,500 feet. That’s where one of my big problems is right now is that we’re changing the 1,500 to 1,000 feet for a fast food restaurant to be able to locate closer to a nursing home or a home for the aged. And we know the traffic lights and stuff that brings. Although 99% of the discussion has been on the gas station issue, I find this issue to be even difficult, and therefor, I’m voting no. COUNCILMAN PONE: Again, I’ve told you how I sympathize with the competition issue. And what do we want for our town issue. I’ve told you my reasons why I feel comfortable with this tonight. We have delayed this; we delayed it because not everybody was sure about the legality or whether it was arbitrary or whether it was truly not going to hold up in court. I’ve now been convinced from about six attorneys, three of who I know pretty well. I’m not an attorney, but I haven’t seen any arguments in the other direction. I’ve seen all the arguments toward this ordinance we have in place right now being illegal. So, based on everything else I said, it’s not that we’re unsympathetic, but as a Council it’s really incumbent upon us to fix an illegal ordinance, if it is brought to our attention. For that reason, I’ll vote yes. There being no further comments, Mr. Kenny moved to close the public hearing and adopt, seconded by Ms. Schirmer; approved after the following vote: Passed: 4-Ayes 1-Nays 0-Abstentions Ayes - Councilmembers Pone, Kenny, Schirmer, and Gore Nays - Councilmember(s) Meara

24

ORDINANCE - SECOND READING AND PUBLIC HEARING 13-014 Ordinance Amending And Supplementing The Code Of Ordinances, Hamilton Township,

New Jersey, Chapter 134, Swimming Pools, Section 134-4, License Required For Construction, Alteration Or Operation

After the above ordinance had been read by title, the President declared the public hearing open and asked if anyone wished to be heard concerning same. There being no response, Ms. Schirmer moved to close the public hearing and adopt, seconded by Mr. Kenny; unanimously approved.

CY13 MUNICIPAL BUDGET INTRODUCTION

On the motion of Mr. Meara, seconded by Mr. Pone; resolutions 5a and 5b were unanimously approved in block after the following discussion: MR. DAN KEELAN, 4 Fisher Place: This time, I only have one question. How many department directors have you interviewed during the budgeting process? PRESIDENT GORE: We had three budget workshops which were open to the public, very poorly attended, but that’s up to the public certainly. We did through the budget office and Mr. Ricci questioned him relative to the budget. At this time, we chose to interview no department directors. VICE-PRESIDENT KENNY: I’ll just note one mistake on a municipal data sheet; you gave Mr. Gore and myself an extra two years on our terms. VICE-PRESIDENT KENNY: My only comment would be again, I’m very pleased that the Mayor and the administration brought to us a budget with no tax increase which is a difficult task to fulfill, especially when you’ve had some drops in commercial ratables. Especially the county has attributed 11% tax increase to the drop in municipal ratables. And yet, we’ve been able to deliver a budget with no increase at all. So once again, I want to commend the Mayor and her administration. PRESIDENT GORE: I too would like to echo what Councilman Kenny said, it’s very easy for people to come in this day in age and say we need to spend more on this and spend more on that without having the fortitude to pay for it by asking that the township taxpayers pay more. So I want to commend the Mayor for holding down spending, providing essential services, keeping Hamilton safe, and yet not incurring a tax increase for the citizens of Hamilton and this very bad economic times both on the national level and global level apparently from what I see and she deserves our heartfelt thanks. COUNCILMAN PONE: I’ll echo yours and Councilman Kenny’s comments. We did give this budget an extensive review in three rather lengthy workshops. It’s a very lean and austere budget. And I thank the administration for giving us projections which we’ve asked for, for years and we’ve gotten them for years from this administration. We’ll need some help and cooperation from the unions and the employees and the upcoming contract negotiations to sustain this. I appreciate the administrations honesty in those projections. I also, like Mr. Gore and Mr. Kenny love the smaller government. We have seventeen less employees than last year, $573,000 less in salaries and wages than last year. I think all levels of government need to be reduced. In Hamilton, we’ve done our part, we’ve led the way. We’ve starved the beast so to speak; and we look out for the taxpayers. The Mayor and administration did a great job, I do commend them. Again, there’s very little we can do with this budget. Perhaps, other than a capital expenditure that we discussed in our last workshop so I thank everyone for their hard work on this. COUNCILWOMAN SCHIRMER: I’d just like to add, I echo what all of you have said. I commend the Mayor, Mr. Ricci, and the entire administration. When I looked at this, the first thing I said, wow, we’re barebones, but yet delivering the service and it is so responsible of the government to do this. In the times that we’re living in I see what the federal government does. I see what’s being done out there, and it’s so frustrating and it’s so refreshing to take a look at a township that is so responsible financially and still providing the services that the residents deserve. I just commend the Mayor and the administration, well done. Mrs. Eileen Gore enters the resolution into the record with regard to the budget. 13-163 Resolution Authorizing The Municipal Clerk To Read The Calendar Year 2013 Municipal Budget Resolution By Title Only 13-164 Resolution Of Introduction And Approval Of The Calendar Year 2013 Municipal Budget

25

The Municipal Budget of the Township of Hamilton, County of Mercer, State of New Jersey for the year 2013 Be It Further Resolved, that the following statements of revenues and appropriations shall constitute the Municipal Budget for the year 2013; Be It Further Resolved, that said Budget be published in the Trentonian Newspaper in the issue of May 10, 2013. The Governing Body of the Township of Hamilton, does hereby approve the following as the Budget for the year 2013: Appropriations within Caps for municipal purposes: $ 865,722,756.90 Appropriations excluded from Caps for Municipal purposes: $ 10,082,397.95 Local School District Purposes for Municipal Budget: - 0 - Total General Appropriations Excluded from Caps: $ 10,082,397.95 Reserve for uncollected taxes: $ 1,383,678.12 Total General Appropriations: $ 98,188,832.97 Less Anticipated Revenues other than Property Tax (surplus, miscellaneous, and receipts from delinquent taxes): $ 36,177,805.97 Difference: Amount to be raised by taxes for the support of the local Municipal purposes including reserve for uncollected taxes: $ 59,253.987.00 Addition to Local School District - 0 - Minimum Library Tax $ 2,757,040.00 Notice is hereby that the Budget and Tax Resolution will be held at the Hamilton Township Municipal Building on May 21, 2013 at 6:30 PM at which time and place objections to said Budget and Tax Resolution for the year may be presented by taxpayers or other interested persons. COMMENTS FROM THE PUBLIC MR. VINNIE CAPODANNO, 65 Englewood Boulevard: We had a nice discussion on the 1,500 foot rule; everybody was nice to each other. We had a debate on it, everybody was pleasant about it. I’m going to talk about the budget process. I’m not putting you down and I hope we have a debate on it. The calendar year runs from January to December, right? Mayor Bencivengo was the Mayor from January to basically November. I heard a lot about Kelly Yaede, this new Mayor, the appointed Mayor and how much credit you’re giving her. I think you’re forgetting about the main architect of the budget was John Bencivengo and Mr. Ricci and all the people the Mayor appointed which were the Mayor’s appointees. I think that I’m having a little difference of opinion. I think next year from January to December this will be Kelly Yaede’s budget. This budget is Mayor Bencivengo’s budget and Mr. Ricci’s budget and all the directors that were included in it. Former Mayor Bencivengo always presented the budget, gave a budget message. I think you all remember that. Kelly Yaede did not give a budget message. PRESIDENT GORE: Absolutely she did. MR. CAPODANNO: She wasn’t here. PRESIDENT GORE: No, she was at the State of the Township Address. MR. CAPODANNO: She didn’t go through that budget like Mayor Bencivengo did. You have your opinion and I have mine. PRESIDENT GORE: Councilman Capodanno, I’ve been on Council three years, and two would have been under Mayor Bencivengo, and he never came and spoke relative to the budget while I was here, maybe he did at prior. MR. CAPODANNO: I remember him giving a really good budget message. Another thing, when you were reviewing the budget, what documents were provided to you when you were looking at this budget? PRESIDENT GORE: We have budget books and we also have some other documentation. I ask Council if there was a consensus as to whether or not they wanted to speak with any directors and I never got a consensus of more than one or two on any particular one, so there was no consensus to speak directly to the directors. Now there were questions asked of each department of the administration and the budget people, and they were answered to the satisfaction apparently of Council because I got no information they needed any follow-up. MR. CAPODANNO: When we use to do the budget by objective, we had a budget document, it was about this thick. We actually had the divisions and directors in, line by line. We use to look into pencils, everything. I just want to know what kind of document you go by. Did you have your annual report?

26

PRESIDENT GORE: The annual reports were supplied. I got mine last week. Did everyone get their annual report finally? There’s problems with some, and I apologize, although it’s not my fault. Some people had problems downloading the annual reports and for those that did, I finally asked that they just be printed out and be given to them. MR. CAPODANNO: The reason why I’m asking and I’m not getting political now cause I used to do this to Gilmore. I think that when you have a one party board, it’s very imperative that the people of Hamilton Township realize the Council is totally separate from the administrative form of government. Also, the employees understand that, the Mayor understands that. You can’t send a signal that you’re going to make them too comfortable. So you got to really, really look into things, you got to really look into that budget. You got to make them understand some of the nonsense has got to stop, like what happened in the Bromley, what happened in Sayen Gardens, et cetera. You can actually send a message from this Council that nothing is going to be tolerated. I think the first step is the budget process. I used to go through a real heavy budget process with Gilmore, he didn’t like it. Salerno didn’t like it; none of the directors liked it. I used to really interrogate it. Also, when it came to the capital budget, I used to actually go and look at the equipment. And make sure no division head; nobody was giving me information that might be incorrect, and me purchasing vehicles that they say they needed. I just think that you need that scrutiny. And make sure you understand that you are definitely going to look at things to scrutinize them. MS. POZO: I just want to bring up a complaint. I’m a marathon runner so I have to run at least fifteen miles and I live on Yardville-Allentown Road which is the border of Allentown and Hamilton. Generally I’ll run towards Allentown because there are sidewalks and it’s safe. I can’t run towards Iccaria’s or towards where my friend who was actually killed by a car because the cars are going so fast, they’re literally running me off the roads. I think I should be able to run where I please without having to worry about my safety. There’s never any cops over there and I’m not going to lie, when I’m going down that road, if it’s late at night, if the speed limit is fifty, I’ll go sixty. But if I see a runner, if I see a biker, then I’m going to slow down, and most of the people do not. I have at least ten or fifteen people that can come that can show you that it is an issue. I’m not saying that we need a bike lane, because I understand the issues of space, and I understand that’s right where they’re building I think an exit-entrance ramp to the highway. PRESIDENT GORE: They’re fixing the bridge though. MR. RICCI: You’re talking about the turnpike bridge? MS. POZO: Yes. MR. RICCI: Yeah, there won’t be an exit there. That’s just a new bridge. MS. POZO: They’re just fixing it, there are a lot of trucks there and literally I have like this much space to run. I just want to be able to run. PRESIDENT GORE: Mr. Ricci what I’m going to suggest if you don’t mind is perhaps you can contact the Chief and have a little bit of patrol presence there. MR. RICCI: We’ve had them out there before, we can do that again. I do know other folks that run on that road. I live down in that neighborhood as well. I don’t run, nor did I ever run but some friends of mine do, and I’ve heard similar complaints from them. So we’ll see what we can do. PRESIDENT GORE: Please leave your name so we can make sure we follow up. And also, be careful, because invariably, what happens is we tell the cops to go over there and they catch the people that made the complaint speeding, be careful. MS. JANICE GLONEK, 432 Trinity Avenue: Is there a service in the township whereas if you have an elderly parent that cannot be left alone, people come and sit for a couple of hours with them. MR. RICCI: The Township doesn’t have it. Mercer County either depending on what assistance they may be eligible for, either Mercer County Board of Social Services, or senior programming in Human Services at the County. They call it respit care. They’ll send somebody out and have them almost baby sit if you will. COUNCILWOMAN SCHIRMER: Have you tried the church OLS? MS. GLONEK: The way it was written, I thought they only did a couple of hours for a person or something. COUNCILWOMAN SCHIRMER: I would check.

27

MS. GLONEK: My mother may need the service here. Do we need to worry about this water?

PRESIDENT GORE: Mr. Ricci, a bunch of us were given letters from the Trenton Water Works which are of quite concern. Because apparently, there is a… they’re raising the level of some sort of a tri-something chloride.

MR. RICCI: They sent that letter out to every user in their water system in all the towns that are serviced by Trenton Water including the City of Trenton. As I understand it that’s a carcinogen and if people with compromised immune systems, particularly those who are pregnant should have concern about it. Now, as I understand the information that they gave to us, based on the fact that they had four quarters that averaged above a certain limit, they had to produce the notification. The last quarter, the quarter that was tested beginning in February, they were below the limit. So it appears that it’s at least at this point back to normal. But the problem is we were all drinking that water last year. We can’t go back and undrink it, we drank it and it was above the limits.

MS. GLONEK: I heard that Ewing told their people not to drink the water. Then it says it’s going to take two years to clean this? That seems like an awful long time to correct a situation that would damage…

MR. RICCI: It’s caused by the chlorine that they treat the water with and when it reacts with other organics that could be in the water already, it forms these types of chemicals. If they didn’t treat it with chlorine it wouldn’t have this problem. But then of course, you’d have other problems. I understand they can correct it, either through some type of filtering system, or aeration which simply means put fountains in the reservoir or something like that; treat it with air, or boil water.

MS. GLONEK: When we were first going with them, we were not too happy because they raised the rates and all and because we weren’t too thrilled with what they were doing. Hamilton Square has different water right?

MR. RICCI: Right.

MS. GLONEK: They don’t have that problem.

MR. RICCI: They have AQUA, and then another part of town has near the turnpike are on wells, so they wouldn’t have the problem. But the rest of Hamilton which I would guess at least 50% are on Trenton Water, maybe 60%; and all of Trenton, almost all of Ewing, a good portion of Lawrence and parts of Hopewell.

MS. GLONEK: Is the DEP supposed to be watching over these people?

MR. RICCI: Yes, and they’re the ones that told them to send the notice out. We’ve called the DEP to ask for their advice about what to do. I don’t have answers yet.

PRESIDENT GORE: Mr. Ricci, stay on top of that, it’s important. When this first came out, I got on my high horse and said that DEP or someone should take over the Trenton Water Works. Because I was afraid something like this might happen. The state doesn’t care apparently.

MR. RICCI: Mayor Yaede said that again yesterday that it’s time; the state has to step in. Ewing had a problem a couple of months ago where they had low water pressure on the fire hydrants. We had a problem about two years ago because one of the storage tanks in Hamilton had legionnaire’s disease in it, and that was reported.

PRESIDENT GORE: That’s because Janice, the money that was supposed to go for the maintenance and the capital cost of repairing the pipes, they borrowed and balanced their operating budgets. And you know what? No one went to jail for that, but perhaps somebody should have thought about a little more investigation into the fiscal realities of what they did with the Hamilton taxpayer’s money in that situation.

MS. GLONEK: I remember there was a law about all the townships should get together. They wanted to raise rates.

PRESIDENT GORE: Absolutely.

MS. GLONEK: Somebody has got to jump on these guys. I think the township should start voicing their opinions that they need to get their act together down there.

MR. RICCI: We’ve done that.

MS. GLONEK: Hamilton Water Works doesn’t have that problem.

28

MR. RICCI: That’s a private company.

COUNCILMAN PONE: Do we know John if filtering the water helps?

MR. RICCI: I understand filtering can help. I’m not sure what type of filter. I know a lot of us have something in our refrigerators already. Whether that’s sufficient, what I read was a charcoal filter, and I think that’s what they are.

MS. GLONEK: I’m planning on getting a filtering system; I don’t want to waste my money if they don’t do any good.

PRESIDENT GORE: Apparently it does.

COUNCILMAN PONE: In case there’s any problems in the future, it’s maybe a prudent move to do it anyway.

COUNCILWOMAN SCHIRMER: When I read the letter, I was fuming. Because my husband drinks a lot of water, you go out to restaurants, my son drinks it. I don’t know and I went online trying to find information, I couldn’t get anything. I’d like to know how often are they tested, and when did they know about this?

MR. RICCI: According to my information, they knew there was an issue, last May.

COUNCILWOMAN SCHIRMER: So we went almost a whole year with this.

MR. RICCI: Because according to the standards under the DEP regulations, they don’t have to report it until they’ve had three bad quarters in a row, three testing periods in a row.

COUNCILWOMAN SCHIRMER: Meanwhile, people are drinking this and people are exposed to this.

MR. RICCI: Yes.

COUNCILWOMAN SCHIRMER: So that’s a DEP regulation?

MR. RICCI: Yes.

COUNCILWOMAN SCHIRMER: Can we request to see Trenton Water Works testings?

MR. RICCI: Yes, we can do that.

COUNCILWOMAN SCHIRMER: I think we need to take a look at that, I think we should.

PRESIDENT GORE: Very good suggestion.

MS. GLONEK: It can cause kidney problems after a long period of time.

COUNCILWOMAN SCHIRMER: And what’s a long period of time?

PRESIDENT GORE: The problem with that anyway is they’re talking about the average person. Well some people have imuno-deficiencies which are not going to need a very long time to have problems, so I agree.

MR. AUGUST SCOTTO, Mark Twain Drive: I want to find out you’re talking about water, I used to get Hamilton Square water. They use to come from under our house, the water that’s under the houses there and it was supposed to have been very good water, and it was sold to AQUA. Now, I don’t think they’re getting the same water that we used to get. I think what they did is build the pipes going out near the side. It’s going over there instead of where we’re getting it. Now are we getting this water form Trenton now? Because if we are we didn’t get any of those letters.

VICE-PRESIDENT KENNY: AQUA doesn’t buy water from Trenton.

MR. SCOTTO: Because I know that the Trenton Water, they’ve been playing games over there for years getting it out of the, I wouldn’t say sewer, but it’s like sewer lines. I was happy, now I was wondering if we were getting some of that water.

PRESIDENT GORE: No, you may have other problems, but getting water from Trenton is not one of them.

29

MR. SCOTTO: I’m glad to hear that. I boil my water every bit of water I get, I boil it. Then after it cools down, I put it through a filter and that’s the water I drink because I’m not sure where it’s coming from. I suggest you all do the same thing.

MR. DAN KEELAN, 4 Fisher Place: I’d like to see during the budget process, if you do interview department heads, every single one of them instead of relying on the administration to answer directly for those people.

Secondly, I’d like you to experiment at the Council meetings to change it from the agenda and

maybe do a portion of the public comments up front to eliminate the number of people and then public comments at the end. Thus people who are primarily concerned about one issue can come in and come out. COMMENTS FROM THE COUNCIL COUNCILMAN MEARA: I’d just like to thank my fellow members of Council, our Counsel Lindsay, the administration, and our Clerk’s office for everything that they do for us. The members of the media for coming out and covering us and the members of the public that they have a safe home. Thank you for attending the meetings. I just want to say after several years of working on my good friend Rick DeLorenzo, he’s finally convinced to come out to Hamilton Township and they will be opening Monday, I believe, the 29th, out in Dennis’ neighborhood the old Bob Evans. PRESIDENT GORE: I can attest you have worked on Rick and I too, am glad that he and his wife are moving the business to Hamilton Township. COUNCILMAN MEARA: Now if we could get the Gazzonus Brothers to bring Michele Lorie’s back and Marianne Scott to bring Casino Hot Dog and Cesar or the Rossi Brothers to bring their hamburgers we’d be set. COUNCILMAN PONE: DeLorenzo’s will be using Trenton Water, which is the key to a great tomato pie. I don’t care what’s in that what, that’s how you make tomato pie, Trenton Water and bagels, too. Janice, Ileana and I will be much heavier by next year or at least I will be.

I want to thank the GALRE kids, tell Brianna Dave tomorrow that her thirty seconds she spent in the Council meeting tonight, I really appreciate it. Steinert GALRE girls were here for about a minute or so. They promised me they’d come in tonight. They did, they kept their promise, but they left pretty quickly. Have a great night everybody, thanks for hanging in there. COUNCILWOMAN SCHIRMER: Everybody, thank you for coming out tonight and have a beautiful week. VICE-PRESIDENT KENNY: I can at least walk to DeLorenzo’s and that will justify eating extra pizza. Thanks for coming out tonight everybody. PRESIDENT GORE: Thank you everyone for coming out this evening. Have a great evening. ADJOURNMENT: 9:35 PM _____________________________ _________________________ Eileen Gore, RMC Edward Gore Municipal Clerk Council President