HARVEY CEDARS, NJ July 15, 2008
The regular meeting of the Board of Commissioners of the Borough of Harvey Cedars, NJ was called to order by Mayor Oldham at 4:30pm. Commissioners Gerkens and Garofalo were present. The Mayor announced to the standing room only crowd that this was a regular business meeting of the Board of Commissioners. He said he appreciates why everyone is here (Ordinance 2008-10), so all other agenda items will be conducted first in order to give the topic of interest full attention.
The Mayor stated to the best of his knowledge all requirements of the State Sunshine Law had been met and asked all to rise for the Pledge of Allegiance.
Motion to approve the minutes of the previous meeting, June 30, 2008, was made by
Commissioner Gerkens, seconded by Commissioner Garofalo.
The Mayor read the following ordinance by title and number and stated that proof of publication is on hand and the ordinance has been posted.
Motion to open public discussion: Commissioner Gerkens
Second: Commissioner Garofalo
Commissioner Gerkens stated that this ordinance is for the new pension system “DCRP” that certain new employees must enroll in instead of PERS. The State provided a model ordinance, which has been revised since the introduction. An explanatory section was added to the ordinance that was not published. It does not change the intent of the ordinance; therefore it will not be re-published. She offered a copy of the ordinance and a more detailed explanation of the content to anyone interested after the meeting.
Larry Murphy, 8006 Bay Terrace, asked how many employees will this affect. Commissioner Gerkens said at this time just one, the judge.
Motion to close public discussion: Commissioner Garofalo
Second: Commissioner Gerkens
Motion to adopt: Commissioner Garofalo
Second: Commissioner Gerkens
Vote: Ayes – Oldham, Gerkens, Garofalo
A copy of the full ordinance as adopted is filed in the ordinance book.
The Mayor read the following resolution by title only and asked for a motion to adopt.
AUTHORIZING REFUND FOR CRAFT SHOW FEE
A copy of the resolution is attached hereto and made a part hereof.
Motion to adopt: Commissioner Gerkens
Second: Commissioner Garofalo
The Mayor read the following resolution by title only and asked for a motion to adopt.
A copy of the resolution is attached hereto and made a part hereof.
Motion to approve the bills for payment was made by Commissioner Garofalo, seconded by Commissioner Gerkens.
A request to use 73rd Street beach to Garret Mink for skimboarding lessons on Fridays through Sundays and Tuesdays/Wednesdays during the summer with morning and afternoon sessions was reviewed and discussed. The morning and afternoon sessions would be from 10am to 4pm. Some residents were concerned about a business operating on the beaches. The Board needed more information from the applicant before approving the request.
The Mayor announced that the public hearing (for the following ordinance) will be held in an orderly and civilized manner, and due to the amount of people present, the Board will only hear from Harvey Cedars’ residents or their representing attorney. The Mayor read the following ordinance by title and number and stated that proof of publication is on hand and the ordinance has been posted.
ORDINANCE AUTHORIZING THE ACQUISITION OF PROPERTY THROUGH NEGOTIATIONS OR EMINENT DOMAIN OF:
Block 84, Lot 7, 13 East 84TH Street,
Block 82, Lot 7, 16 East 83RD Street,
Block 81, Lot 5, 13 East 81ST Street,
Block 79, Lot 5, 22 East 80TH Street,
Block 43, Lot 5, 15 East Sussex Avenue,
Block 42.03, Lot 5, 7B East 70th Street,
Block 42.03, Lot 4, 7A 70th Street,
Block 42.01, Lot 6, 8B East 69th Street,
Block 42.01, Lot 5, 9 East 68th Street,
Block 42, Lot 7, 11 East Essex Avenue,
Block 38, Lot 18, 6311F Long Beach Blvd.,
Block 24, Lot 9, 14A East Burlington Avenue,
Block 24, Lot 6, 13 East Passaic Avenue,
Block 6, Lot 40, 12 East Cumberland Avenue,
Block 6, Lot 7, 11 East Bergen Avenue,
Block 5, Lot 5, 5309D Long Beach Blvd.
[Clerk’s note: Block 6 Lot 40, 12 East Cumberland Avenue signed over the easement on July 5, 2008, prior to second reading.]
Motion to open public discussion: Commissioner Garofalo
Second: Commissioner Gerkens
Ken Porro, attorney representing various oceanfront homeowners from Long Beach Island, stated that just today the New Jersey Appellate Court affirmed Judge Vincent Grasso’s ruling that the State cannot use an injunction to grant a perpetual public access easement without first following the eminent domain procedures. Mr. Porro provided a copy of the decision to the Clerk (attached). He further said that the decision stated the Eminent Domain Act is based on the fundamental principle that just compensation must be paid for property taken. Ken Porro said that the value of the property goes down 40% if the dune blocks view or ocean breeze.
Arlene Pollack, 15 East Burlington Ave., thanked the Board for recognizing the severity (of the beaches) and thanked them for their actions to protect investments. She said she is a member of the Taxpayer’s Association and she was one of the first to sign (deed of easement).
Phil Kunz, 17 West 76th Street, read a letter from the Taxpayers Association president (attached) in support of this ordinance.
Wendy Mae Chambers, 13 East 75th Street, oceanfront homeowner in Harvey Cedars and property owner in New Orleans, said the recent Mother’s Day storm was a “gift” because of the wake-up call it delivered; everybody can see the condition of the beaches. She stated this will not be resolved without eminent domain and that life is more important than money and a house.
Victor Groisser, 7B East 70th Street, stated he called the Borough last week and requested a postponement of this hearing because of the difficulty of the affected homeowners to attend the meeting. He received the notice of a newly schedule hearing for Saturday that stated formal action will be taken, and was concerned if action were taken tonight, what would be the purpose of Saturday. The Mayor responded that the Board does plan on taking action tonight; but if an event should occur that the Board deems it necessary to table this ordinance, they will table it to another date; sometimes this happens with an ordinance. The Mayor said that this ordinance is not enforcing eminent domain, merely authorizing the Borough to use eminent domain should it be necessary. He also said that the Board would be happy to meet on Saturday with anyone who has not signed to discuss their issues (regarding the easement). The Mayor said he has spoken with many people on the phone about their issues and will continue to do that.
Mr. Groisser read his statement into the record (attached). He stated that many of the residents who have not signed are not against the project, but rather the total loss of control by signing over an easement that may very well result in over-commercialization. He spoke of the unexploded ordnances in the Surf City project, and suggested that Harvey Cedars should continue to protect homes on a local level.
Linda Pickering, 14 Cape May Ave., urged the Board to proceed with the adoption of the ordinance; it’s been 3 years of talking and negotiating; it’s important we get the project done this year.
John Cadmus, 7 East 79th Street, presented pictures taken at low tide at Mercer Avenue showing the poor condition of the beaches.
Mr. Talcott, 6 East Hudson, commented that the availability of bathrooms is wonderful; he recalled when he first moved in people were “going” behind the bayberries across the street. He said it’s a lot of nonsense; there won’t be any port-o-potties on the beaches and people won’t be using the resident’s bathrooms. He said his land value is $1 million, but wondered what it would be without a beach; pilings are showing in the ocean and we can’t wait; the project has to be done now.
Doug Simpson, 30 Lange Ave., stated that during the Surf City project he spoke to one of the workers who had told him the Surf City residents had the same concerns as Harvey Cedars regarding the dune height, but the project did not increase the dune one foot; all the dunes were the designated height already. Mr. Simpson said the Surf City project was great, except for the munitions, which no one could have foreseen. He also stated that old Harvey Cedars pictures depict a paved road in front of the current oceanfront homes and there were houses on the other side of that paved road. He said that this meant Harvey Cedars had lost approximately 500 feet since the early 1900’s. He said the bottom line is if we don’t do something we are going to lose the first line of houses and eventually the end of the streets. He said those people that won’t sign now because they have sand in front of their house, they’re not going to have sand there forever. He said the homes in Surf City that are 200 to 400 feet before the ocean have a lot more value to them, any home on the ocean is going to increase in value (with this project); the fact that a home is on a safe and secure piece of land that will be around for generations, overcomes any little thing that might be given up.
Don McGovern, 13 E. 73 rd Street, asked if the ordinance applied to the entire lot and the house. Mayor Oldham explained the eminent domain would apply to the easement only that starts at the bulkhead line and goes east. The Mayor defined the bulkhead line as being at the end of the streets where the old bulkhead existed and to draw a line from one street end to the next.
Margaret “Pooch” Buchholz, 8102 Bay Terrace, commented that the nonsense about the munitions is a real red herring; when a sieve is put on a dredge pump, nothing bigger than a clam can get through. She also pointed out that the pilings in the ocean that were mentioned (by Mr. Talcott) represent the 1920’s effort to save the beaches.
Sue Ellen Rifkin, 5 W. 77th Street, stated that we all have to give up something; she believes the Commissioners should proceed with the eminent domain. She also suggested the homeowners who signed their easements should have flags in front of their dunes to recognize the ones who gave something up to protect the whole town, just like the stars hung by Gold Medal Mothers during the war.
Joan McHugh, 6302 Long Beach Blvd., stated that the water coming up (from the ocean) is not due to a storm; if a hurricane happens, we’ll lose everything, so some kind of dune must be installed. She stated that in her opinion, they (the non-signers of easements) should not be able to have flood insurance, because they’re affecting and jeopardizing all the properties because they want to view the ocean.
Bob Pras, 6403F Long Beach Blvd., said he would like to reinforce the previous comments that we don’t have to wait for an emergency; we are in one now and that it’s not if we have a hurricane it is when; no truck loads of sand will fix it. He said the beaches need repair; a hurricane will wipe this town out.
Richard LeSchander, 35 Cedars Ave., asked if the Mayor could respond to what Dr. Groisser spoke about with the licensing of the easements. Mayor Oldham said he is not familiar with the concept and was going to talk to the doctor about it, but the Mayor did not believe that it would be possible (licensing).
Marilyn Upton, 5 East 81st Street, said she’s been here for 37 years and the beaches have been great until 3 years ago when nothing has been done to the beaches (maintenance). She said she never sees anyone working on the beach and requested the dune fence to be repaired but never was. She said her walkway to the beach is so steep, a rope is needed for her husband to get down to the beach; she said she spoke to Public Works over a week ago but they never showed up. The Mayor and Commissioner Garofalo responded that the Public Works crew is constantly working on the beaches pushing sand and protecting vulnerable areas, mainly on the south end of town. Not only are they working on the beaches, but they must continue with recycling and other duties. Commissioner Garofalo said he was aware of how steep the walkway is and sympathized with Ms. Upton, but said that Public Works must first work on protecting the homes rather than the walkways. He said that fences often wash away after being installed in certain areas; he was not specifically aware of 81st Street’s fences, but will find out.
Stan Feeley, 6311E Long Beach Blvd., said every year he asks and gets dune fence, but this year there is none. He highly recommended to pass this ordinance, but suggested and urged that if this gets bogged down with lawyers, that we need to continue with the bulldozing and get the dune fencing. Mayor Oldham said that the fencing would be put up as soon as it is possible and as long as there is an established dune to place it on.
Frieda Watson, 15 East Cumberland Ave., stated when they first bought their house they used to have two rows of dune fence, but now there is no fence because there is no dune. She believes her beach area is the second worst beach area and she becomes anxious when children are playing in the dunes watching the sand trickle down from the very narrow dune. She said it is very logical to make the tough decision now for the future of the beaches.
Carol Sziklay, 6802 Suffolk Place, asked how many houses are there in Harvey Cedars. When the Mayor responded approximately 1200, she said it was not fair that 15 people get to decide for 1100 people about the beaches.
Carolyn Groisser, 7B East 70th Street, asked why Harvey Cedars and the County of Ocean couldn’t do the project without the parameters of the Federal government. She said that we (the non-signers) want beach replenishment, but she is asking the municipality and the County of Ocean to do the work. Ms. Groisser stated that if the Federal funds were accepted, the Public Trust Doctrine would really be enforced. The Mayor said that although the Surf City project had problems with ordnances, he would rather have the sand and homes protected and deal with the ordnance problem, which he believes wouldn’t happen again, than have what we have now. He said Surf City’s portion was $300,000 for a multi-million dollar project; the numbers for Harvey Cedars are about $13 million, which does not include the engineering or permitting. He believes this town could not afford that. The Mayor also stated that the State would still require easements for Harvey Cedars to do the work, because the State controls what happens on the beach.
The Mayor was asked about Avalon’s fight against the beaches remaining open 24/7 and he responded that Avalon would win that fight. He said he has spoken to the DEP about that and that will not be an option here. He said Harvey Cedars’ beaches are open at night, anyone is allowed to walk on the beach at night, but for liability purposes, the beaches shouldn’t be open for swimming, so that will be changed in the agreement.
Sean O’Mara, 8 East 80th Street, asked why the easement language couldn’t be tightened up to eliminate the concerns of the non-signers. He said he was in favor of the eminent domain or anything that would get the beaches back. Mayor Oldham said he would be happy to talk to the Groisser’s and their attorney and meet with them on Saturday to outline what those concerns are and to see if they could be worked on with the State. The Mayor said that on one hand the State wants the public access, but they also don’t believe that there should be any homes on this island.
Mary Feeley, 6311E Long Beach Blvd., asked how long it would take for eminent domain to go into effect. Mayor Oldham said the passing of this ordinance is not to go to eminent domain, simply the authorization; Harvey Cedars is not going to spend dollars to secure these easements until the project can move forward in Harvey Cedars. When the federal funds become available and the State offers the project to Harvey Cedars, the Borough must be ready and have certain steps in place, and this is one of them (the ordinance).
Samuel Lenox, 6801 Norfolk Place, a retired NJ Superior Court judge, explained the timeline and procedure of eminent domain. There are a few preliminary proceedings before filing the complaint such as negotiations, appraisals and the making of an offer, followed by the filing of the complaint. At the time of the filing of the complaint, a Declaration of Taking is filed with the County Clerk and with the court. He said at that moment you own the easement, even before the people who are objecting to it, the ones named as defendants, are notified that the complaint had been filed, Harvey Cedars owns the easement and can pump sand immediately.
Mr. Lenox continued with regard to appeals. He said in condemnation there are three issues: the right to condemnation, which municipalities have been given that right by statute; the purpose for condemnation is for public benefit; and the issue of the value of the property. He explained that at the time of the filing of the complaint, the issue of just compensation continues, but it continues with the ownership of the condemner – the condemner has title to the easement – the appeal is only a matter of compensation. Compensation is the only issue in the case.
With regard to compensation, Mr. Lenox said he finds it interesting that there may be no compensation required because the benefit may well exceed the detriment, and the decision of the condemnation commissioners, or if the commissioner’s award is appealed the judge or jury, may be nothing or $100. He continued to say that the issue of just compensation is determined ordinarily on the basis of comparable sales; if the house is condemned they take the nearby properties and what they sold for and come to a determination as to what that particular house has sold for. In this case, the comparable sales are all the people who gave up the same easement for nothing.
Phil Kunz asked what the timeframe is for the project. Mayor Oldham said there was $5 million approved in the (Federal) ’08 budget and $11.7 million is being worked on by committees both in the Senate and the House for fiscal year ’09. He said it is his hope that the State would come to Harvey Cedars at some point in the fall and offer a project, whether it is the $5 million or the 5 plus the $11.7 million. Funding for the Surf City clean up still must be determined, too. In the event that Harvey Cedars is offered the project, this ordinance must be passed now and appraisal work, among other things, needs to be done so that we would be ready to accept or reject the project this fall. If we accept it, we may see sand on the beach by November.
Bob Devenney, 8206 Long Beach Blvd., said he supports this ordinance as proposed, and believes it is very important that all of us to work hard to protect what we have.
Debbie Austin, 1 West 75th Street, said she wanted to put in a good word for the Public Works guys, because she sees them on the beach all winter long putting up dune fence and just fighting to try to hold back the ocean with the bulldozer. She gives them credit because they are out there everyday. She also said that this project isn’t just something for oceanfront people; this project is for the entire community. She stated that whatever steps are necessary should be taken and that it is not fair for a handful of people to jeopardize everyone else’s property in the borough.
Motion to close public discussion: Commissioner Gerkens
Second: Commissioner Garofalo
Motion to adopt: Commissioner Garofalo
Second: Commissioner Gerkens
Roll Call Vote:
Mayor Oldham – The Mayor commented that he sensed 98% of the town wants this project and he believes with all his heart that this project has a lot to do with the future of Harvey Cedars. He believes most of the people who have not signed have very legitimate concerns that the Commissioners would like to continue to work with. There are a number of people that have not signed that he has spoken with many, many times trying to work out some of their issues. He said he was happy with the tone of this meeting tonight; that people were respectful of each other and that we all understand that people look at things differently and each person’s issues are specific to themselves. He said he believes that this is what is necessary for this town at this time – Aye
Commissioner Gerkens – Aye
Commissioner Garofalo – Aye
A copy of the full ordinance as adopted is filed in the ordinance book.
After a standing ovation, a motion to adjourn was made by Commissioner Garofalo, seconded by Commissioner Gerkens.
Meeting adjourned at 5:50pm.