1 1 FAIR HAVEN BOROUGH 2 MONMOUTH COUNTY 3 FAIR HAVEN ZONING BOARD OF ADJUSTMENT 4 5 IN RE: : 6 NEW YORK SMSA LIMITED PARTNERSHIP : 7 d/b/a VERIZON WIRELESS AND OMNIPOINT : 8 COMMUNICATIONS, INC. : 9 180 RIDGE ROAD : 10 BLOCK 77.02, LOT 6A : 11 CHURCH OF NATIVITY : 12 _____________________________________: 13 SPECIAL MEETING 14 AT: FAIR HAVEN MUNICIPAL BUILDING 15 748 River Road 16 Fair Haven, New Jersey 07704 17 DATE: TUESDAY, APRIL 17, 2007 18 TIME: 7:27 P.M. TO 9:56 P.M. 19 20 GUY J. RENZI & ASSOCIATES 21 GOLDEN CREST CORPORATE CENTER 22 2277 STATE HWY #33, SUITE 410 23 TRENTON, NEW JERSEY 08690 24 (609) 989-9199 TOLL FREE (800) 368-7652 25 http://www.renziassociates.com 2 1 B O A R D M E M B E R S: 2 3 PETER MAHER, Chairman 4 MARIANNE FICARRA 5 SUZANNE GOTTUSO 6 SONIA REEVEY 7 8 B O A R D P R O F E S S I O N A L S: 9 10 MICHAEL A. IRENE, JR., Zoning Board Attorney 11 ERNEST J. PETERS, JR., P.E, C.M.E, 12 Zoning Board Planner 13 DR. BRUCE A. EISENSTEIN, Zoning Board Engineer 14 LINDA MERCADANTE, Zoning Board Secretary 15 16 A P P E A R A N C E S: 17 18 COOPER LEVENSON 19 1125 Atlantic Avenue 20 Third Floor 21 Atlantic City, New Jersey 08401 22 TEL: (609) 344-3161 23 BY: WARREN O. STILWELL, ESQ. 24 Attorneys on behalf of Verizon Wireless 25 and Omnipoint Communications, Inc. 3 1 I N D E X 2 WITNESS PAGE 3 4 OPENING STATEMENT 5 by Chairman Maher 5 6 ROLL CALL 10 7 OPENING STATEMENT 8 by Mr. Stilwell 11 9 WILLIAM PERRY 10 Direct Examination by Mr. Stilwell 12 11 Cross-Examination by the Board 19 12 Cross-Examination by Mr. Lieberman 21 13 DOMINIC C. VILLECCO, R.F. 30 14 Direct Examination by Mr. Stilwell 32 15 THOMAS J. GILMOUR, III 16 Direct Examination by Mr. Lieberman 38 17 Cross-Examination by the Board 53 18 Further Direct Examination 19 By Mr. Lieberman 56 20 Cross-Examination by Mr. Stilwell 57 21 Cross-Examination by the Public 73 22 SWORN STATEMENT BY THE PUBLIC 85 23 BOARD DISCUSSION 121 24 ADJOURNMENT 145 25 4 1 E X H I B I T S 2 3 ID DESCRIPTION PAGE 4 5 (EXHIBITS NOT ANNEXED TO TRANSCRIPT.) 6 7 A-34 Copy of the Letter Sent to the 8 Fair Haven Volunteer Fire Company; 9 Dated: 2/14/2007 15 10 A-35 Copy of the Letter Confirming 11 Noninterest; Dated: 3/22/2007 16 12 A-36 Copy of the Letter Confirming 13 Noninterest; Dated: 3/22/2007 17 14 A-37 Verizon Existing Coverage Without 15 the Fair Haven Site at 3 Power Levels 30 16 A-38 Verizon Existing Coverage With the 17 Fair Haven Site at 3 Power Levels 31 18 A-39 T-Mobile Existing Coverage Without the 19 Fair Haven Site at 3 Power Levels 32 20 A-40 T-Mobile Existing Coverage With the 21 Fair Haven Site at 3 Power Levels 32 22 M-1 Letter Addressed to Council President 23 Gilmour from Paul Liao; 24 Dated: 4/15/2007 46 25 5 1 CHAIRMAN MAHER: This is a special 2 meeting of the Zoning Board of Adjustment, the 3 Borough of Fair Haven. Adequate notice of this 4 meeting was given pursuant to Section 13 of the 5 Open Public Meetings Act by mailings and postings 6 of bonds a resolution set forth was scheduled for 7 tonight's meeting. It's also been copied and 8 mailed to the Asbury Park Press, Two River Times 9 and any other such person as requested through 10 the Section 14 of the Open Public Meeting's Act. 11 Before we proceed, go forward with 12 tonight's formal meeting, I'd like to say few 13 words to the applicants and their experts and the 14 audience about the role and the authority of the 15 Fair Haven Zoning Board of Adjustment. This 16 Board is a separate and independent municipal 17 legal entity, and its limited authority is 18 specifically set forth in the Borough ordinances 19 and New Jersey Municipal Land Use Law. It is 20 quasi-judicial in nature and the members of the 21 Board are unpaid volunteers, all appointed by the 22 Mayor and Council. 23 The Zoning Board does not enact the 24 Borough land use laws and regulations. The 25 Borough Council does that for us. The Zoning 6 1 Board does not enforce the land use laws of the 2 Borough of Fair Haven. This is the 3 responsibility of the Borough code enforcement 4 officer. This Board simply deals with the appeal 5 to relief to the requirements of the Borough's 6 land use laws or the denials by a zoning officer, 7 a Fair Haven officer who's our construction 8 official. 9 An applicant is never entitled to a 10 variance, also known as an exception to the 11 zoning regulations, but must meet specific 12 criteria required by the New Jersey municipal law 13 and the Fair Haven ordinances, by satisfying 14 certain required standards of proof. This Board 15 has no authority to waive these requirements. 16 The burden of proof is always upon the applicant 17 to show that they are entitled to be considered 18 for the relief requested. 19 The applicant must prove that any 20 deviation from regulations to advance the purpose 21 of the ordinance and that deviation will 22 substantially outweigh any detriment to the zone 23 plan. Variance related to the future use of the 24 land -- variances are related to the future use 25 of the land are not intended nor authorized for 7 1 temporary or unique situations. 2 Now just a little comment to the 3 public. I recognize that many of you are or may 4 be unfamiliar with the way things proceed at 5 meetings like this. So I ask that in order to 6 conduct a proper and fair and timely meeting that 7 the following try to be adhered to: 8 At all times please wait to be 9 recognized before speaking. Once you are 10 recognized and are available to speak, please 11 before you start your comments, enter your name 12 and address clearly for the recording and then 13 direct all your comments towards either myself or 14 the Board members. 15 With that being said, why don't we 16 get the meeting started. 17 MR. IRENE: Mr. Chairman, I'd 18 suggest that we allow counsel to put their 19 appearances on the record, and then we just have 20 a couple of housekeeping matters and then move 21 right into the testimony. 22 CHAIRMAN MAHER: Absolutely. 23 MR. STILWELL: Thank you, 24 Mr. Chairman, members of the Board. 25 Warren Stilwell on behalf of the 8 1 applicants, New York SMSA limited partnership 2 d/b/a Verizon Wireless and Omnipoint 3 Communications, Inc. 4 CHAIRMAN MAHER: Mr. Lieberman? 5 MR. LIEBERMAN: Good evening, it's 6 nice to be here again. I'm Stuart Lieberman and 7 I represent the municipality. 8 MR. IRENE: Thank you, Counsel. 9 Any other counsel? 10 (No response.) 11 Let the record reflect none. 12 Mr. Chairman, my notes reflect that 13 Dr. Eisenstein was previously sworn in as an 14 expert on behalf of the Board on this matter. 15 Is that correct, Dr. Eisenstein? 16 DR. EISENSTEIN: Yes. 17 MR. IRENE: Thank you. You 18 understand you remain under oath? 19 DR. EISENSTEIN: Yes. 20 MR. IRENE: And also that Mr. Ernest 21 Peters was previously sworn in as the Board's 22 special engineer. 23 Mr. Peters, you understand you 24 remain under oath? 25 MR. PETERS: Yes, sir. 9 1 MR. IRENE: I should also indicate 2 for the record, Mr. Chairman, that I was provided 3 by the Board's secretary with a letter that was, 4 I believe, e-mailed to the Mayor and Council and 5 apparently also directed to the Zoning Board, but 6 was provided to the Board secretary. She 7 provided it to me. It's a letter dated or an 8 e-mail dated today's date from Mr. Marcus and 9 Ms. Betina Hoffman. 10 Are either Mr. Marcus Hoffman or 11 Ms. Betina Hoffman here? 12 All right. Let the record reflect 13 they're not here. I just want to indicate for 14 the record that this has not been distributed to 15 the Board members. It's comments with regard to 16 the church, the Methodist Church and various 17 other things. Technically it's hearsay. And, 18 obviously, Mr. Hoffman or Ms. Hoffman or both of 19 them are welcome to appear, question witnesses, 20 present whatever testimony they'd like. But by 21 virtue of the fact that they're not here, this is 22 not going to be distributed to the Board. 23 I just want to note for the record 24 that I do have it and we certainly invite 25 Mr. Hoffman or Ms. Hoffman to appear and 10 1 participate. 2 Are there any other housekeeping 3 matters before we begin? 4 You understand, Mr. Stilwell, as you 5 can see that there are only four members tonight. 6 We certainly have a quorum and can proceed. But, 7 obviously, if we were to conclude we would not be 8 in a position to vote tonight because you need 9 five affirmative votes for the D variance. 10 MR. STILWELL: Yes, Mr. Irene, and 11 that is consistent with the discussion you and I 12 had. 13 MR. IRENE: Okay. 14 So any other housekeeping matters 15 before we get back into the testimony? 16 Okay, great. 17 Mr. Stilwell, would you -- 18 MS. MERCADANTE: Roll call. 19 MR. IRENE: Oh, I'm sorry, I thought 20 we did it. I apologize. 21 MS. MERCADANTE: Peter Maher? 22 CHAIRMAN MAHER: Here. 23 MS. MERCADANTE: Marianne Ficarra? 24 MS. FICARRA: Here. 25 MS. MERCADANTE: Suzanne Gottuso? 11 1 MS. GOTTUSO: Here. 2 MS. MERCADANTE: Sonia Reevey? 3 MS. REEVEY: Here. 4 MS. MERCADANTE: Michael Irene? 5 MR. IRENE: Present. 6 Thank you -- 7 MS. MERCADANTE: John Christie? 8 Absent. 9 MR. IRENE: Thank you, Linda. 10 MR. STILWELL: Thank you, 11 Mr. Chairman and members of the Board. 12 When we were last here on February 13 the 8th, we introduced testimony from both my 14 professional planner William F. Masters, Jr. and 15 from Mr. Dominic Villecco. At the time, we had 16 indicated that our testimony-in-chief was done, 17 but the Board asked us specifically to make 18 inquiries with respect to two properties. One 19 was the fire company property and the other was 20 the Knollwood School, but we did that vis-a-vis 21 the Board of Education. 22 I have with me a witness who is a 23 cite acquisition specialist, Mr. William Perry, 24 who is the person who sent certified letters to 25 each of those institutions and received certain 12 1 responses. So I have him here to testify with 2 respect to those inquiries and the responses that 3 we received. If the Board wants to hear that, I 4 can make the proffer that the letters were sent 5 and that the -- there was no interest on either 6 entity's part with respect to making property 7 available to us. 8 But why don't we have -- why don't 9 we introduce the records into evidence and have 10 Mr. Perry come up very briefly. 11 Mr. Perry? 12 Mr. Perry has not been sworn in 13 previously. 14 W I L L I A M F. P E R R Y, having been first 15 duly sworn, testifies as follows: 16 MR. PERRY: William F. Perry, 17 P-e-r-r-y. 18 MR. STILWELL: Thank you. 19 EXAMINATION BY MR. STILWELL: 20 Q. Mr. Perry, would you tell 21 the -- have a seat -- would you tell the Board 22 what you do professionally, by whom you're 23 employed and what your connection is with respect 24 to this particular application? 25 A. I'm employed by Select Wireless and 13 1 it's site acquisition services for the wireless 2 industry. 3 And what I was requested in this 4 particular instance is to provide a service to 5 propose a wireless facility at two locations, the 6 Fair Haven Volunteer Fire Company as well as 7 Board of Education, Fair Haven Borough. 8 Q. Just in terms of your background, 9 Mr. Perry, how long have you been involved in 10 site acquisition for wireless telephone 11 companies? 12 A. Since 1984. 13 Q. And in that amount of time, about 14 how many sites would you say you've acquired for 15 various cellular telephone companies -- 16 A. A few hundred. 17 Q. -- ballpark? 18 A. Few hundred. 19 Q. Okay. And as part of the inquiries 20 or as part of that process, is one of the things 21 you do make inquiries to various property owners 22 with respect to determining whether or not they 23 would be interested in having a wireless facility 24 on their property? 25 A. That's correct. 14 1 Q. And is that -- would you describe 2 what you did with respect to each of the parties 3 with whom you were asked to contact in this 4 particular regard and whether or not what you did 5 is typical of what you always do? 6 A. Yes, it was and yes, I did. 7 Q. Okay. And would you describe that 8 process. And when it gets to the letters that 9 you sent out, we'll have them marked as exhibits. 10 A. Well, what I did is by certified 11 mail, sent a proposal to both entities, if you 12 would, to the Fair Haven Volunteer Fire Company 13 as well as the Board of Education for Fair Haven 14 Borough and requested an interest on their part 15 to locate a wireless facility on their property. 16 And I also asked as a courtesy an interest date 17 in both parties by March 21st for a response. At 18 which time, I sent these letters out. 19 They were both signed for and 20 accepted by the Fair Haven Volunteer Fire Company 21 and Board of Education. 22 Q. And each of these letters 23 respectfully were sent out on February 14th, 2007 24 by certified mail return receipt requested? 25 A. Yes, it was. 15 1 Q. And so when you say they were signed 2 for, was it the returned receipts that were 3 signed on behalf of each entity and returned to 4 you and you have copies of those with you this 5 evening? 6 A. Yes, I do. 7 Q. Why don't we mark the February 14th 8 letter to the Fair Haven Fire Company as A-34. 9 (Exhibit A-34, Copy of the Letter 10 Sent to the Fair Haven Volunteer Fire Company; 11 Dated: 2/14/2007, was received and marked for 12 identification.) 13 BY MR. STILWELL: 14 Q. And I would just ask you with 15 respect to what I marked A-34, if that's a copy 16 of the letter you sent to the volunteer fire 17 company? 18 A. Yes, it is, as well as the receipts. 19 Q. Okay. And just sticking to 20 volunteer fire company, after you sent that 21 letter, did you have any discussions with the 22 volunteer fire company or personnel from the 23 volunteer fire company, I should say? 24 A. Yes, I did. On March 16th, I spoke 25 to a Jim Butler who, as a courtesy, gave me a 16 1 phone call expressing no interest, that at this 2 time the fire company had no interest in leasing 3 that property. At which point, I did send a 4 letter back confirming that conversation. I also 5 sent that certified that that conversation took 6 place and there was no interest at this time. 7 Q. Okay. And that letter confirming 8 the conversation and the fact that they were not 9 interested is dated March 22nd, 2007? 10 A. That's correct. 11 Q. And I'm going to mark that as A-35 12 and ask you if that's a copy of that letter that 13 was sent to them? 14 A. Yes, it is, as well as the receipts. 15 (Exhibit A-35, Copy of the Letter 16 Confirming Noninterest; Dated: 3/22/2007, was 17 received and marked for identification.) 18 BY MR. STILWELL: 19 Q. Okay. And by the way, all of 20 these -- the letters to the volunteer fire 21 company indicate that you were researching this 22 Block 25, Lot 9 which is the fire company 23 property? 24 A. That's correct. 25 Q. Okay. With respect to the -- and 17 1 once you received the verbal communication and 2 sent those letters, you haven't received any 3 additional communication from the fire company? 4 A. I received no additional comments or 5 interest on their behalf. 6 Q. Okay. With respect to the Board of 7 Education, that letter is also dated February 8 14th. I'm going to mark that A-36 and ask you 9 with respect to A-36 if that's the letter that 10 you sent? 11 A. Yes, it is, as well as the receipts. 12 (Exhibit A-36, Copy of the Letter 13 Confirming Noninterest; Dated: 3/22/2007, was 14 received and marked for identification.) 15 BY MR. STILWELL: 16 Q. Okay. And that letter is 17 essentially the same as the letter to the fire 18 company; is it not? 19 A. It's very similar, yes. 20 Q. And what did that letter ask of the 21 Board of Education? 22 A. If they was interest in leasing the 23 property for a wireless facility. It also asked 24 that they would respond by March 21st, also. 25 Q. And was there any response to that 18 1 letter? 2 A. There was no response; no verbal or 3 written. 4 Q. Okay. And so as far as you know 5 then there was just no response? 6 A. As of this date I've not heard from 7 anybody. 8 Q. Okay. In your experience doing this 9 kind of work, when you don't receive a response 10 that usually indicates there is no interest? 11 A. At this time, yes. 12 MR. STILWELL: Mr. Chairman, I will 13 give you copies. Just mark that as A-34, A-35 14 and A-36. 15 (Handing copies of the exhibits to 16 the Board.) 17 MR. IRENE: I know there was a prior 18 discussion, but so we don't forget -- I don't 19 mean to interrupt, Mr. Chairman -- but could we 20 just get the property address with regard to the 21 Board of Education? 22 MR. PERRY: The Board of Education 23 and the letter was sent to 224 Hance Road and 24 were referenced Block 38, Lot 1. 25 MR. IRENE: Is that what we were 19 1 calling Knollwood School last time? 2 MR. STILWELL: Norwood? N-o-r -- 3 UNIDENTIFIED SPEAKER: 4 K-n-o-l-l-w-o-o-d. 5 MR. STILWELL: Okay, sorry. The 6 transcript said Norwood. 7 CHAIRMAN MAHER: Thank you. 8 BY MR. STILWELL: 9 Q. All right, Mr. Perry. 10 MR. STILWELL: That's all I have for 11 Mr. Perry. Those were the two properties that we 12 were asked to -- 13 MR. IRENE: Hold on one second, sir. 14 CHAIRMAN MAHER: Is there any 15 members of the Board that wish at this point to 16 ask questions of Mr. Perry? 17 CROSS-EXAMINATION OF WILLIAM PERRY BY THE BOARD: 18 MS. GOTTUSO: Who is Jim Butler? Is 19 he in charge of -- 20 MR. PERRY: Jim Butler -- he called 21 me from the fire company and we played phone tag. 22 Unfortunately, I did not get his title, but he 23 did say he was from the fire company. 24 CHAIRMAN MAHER: Any other questions 25 from the Board members? 20 1 MS. GOTTUSO: Can we see the letter 2 for the Board Ed.? 3 CHAIRMAN MAHER: For the Board of 4 Ed., sure. 5 It looks like it was received by a 6 name Richard Weber, that's who signed for it. 7 If there's no other questions right 8 now from the Board members, any questions from 9 the -- yes, Mr. Lieberman? 10 MR. LIEBERMAN: Could I just so 11 those letters? 12 CHAIRMAN MAHER: Sure. 13 MR. STILWELL: You want to see my 14 copies? 15 MR. LIEBERMAN: Anybody's copies. 16 MR. STILWELL: Here's the Board of 17 Education letter, and then here's the two 18 volunteer fire company letters, February 14th and 19 March 22nd. 20 (Handing.) 21 MR. LIEBERMAN: All right. 22 MS. GOTTUSO: Mr. Perry, were you 23 involved with the selection of the Church of 24 Nativity site where you think you did something 25 similar? 21 1 MR. PERRY: No, I was not. 2 CROSS-EXAMINATION OF WILLIAM PERRY 3 BY MR. LIEBERMAN: 4 Q. Okay. Just to make sure, though, 5 with regard to the Board of Education, nobody has 6 affirmatively responded one way or the other; is 7 that correct? 8 A. That's correct. 9 Q. What there's been is a nonresponse? 10 A. A nonresponse. 11 Q. Did you make a supplemental -- did 12 you make any phone calls to follow up, anything 13 of that nature? 14 A. No, I did not. 15 Q. Did you engage in any telephone 16 conversations with these people? 17 A. No, I did not. 18 Q. So -- and when I say "these people," 19 it's the Board of Education. With regard to the 20 fire company, you did speak with a -- a Mr. -- 21 MR. STILWELL: Butler. 22 BY MR. LIEBERMAN: 23 Q. -- a Mr. Butler? 24 A. That's correct. 25 Q. Okay. And Mr. Butler said 22 1 unequivocally no interest, in capital letters, as 2 per your letter, right? 3 A. No interest at this time. 4 Q. But we have no idea who Mr. Butler 5 is vis-a-vis the fire company; is that right? 6 MR. DEBREE: Mr. Jim Butler, Jr. is 7 president of the fire company. 8 CHAIRMAN MAHER: Thank you, sir, for 9 your clarification. 10 MR. IRENE: Thank you. 11 MR. DEBREE: I -- 12 CHAIRMAN MAHER: Hold on a second. 13 MR. IRENE: Who are you, sir, and 14 how do you know that? 15 MR. STILWELL: It's Jim Butler. 16 MR. DEBREE: My name is Derrick 17 Debree, and I'm captain of the first aid squad. 18 MR. IRENE: Derrick, I'm sorry, 19 could you spell your last name for me, please? 20 MR. DEBREE: D-e-b-r-e-e. 21 MR. STILWELL: You're captain of the 22 fire company? 23 MR. DEBRE: Captain of the first aid 24 squad, actually. 25 MR. STILWELL: I think the Board 23 1 could take notice of the fact Mr. Butler's 2 president of the fire company, that would be a 3 public position. 4 MR. LIEBERMAN: I would stipulate to 5 in fact that without any question, Mr. Butler is 6 the -- I don't know it, but I believe it. 7 BY MR. LIEBERMAN: 8 Q. But do you know whether Mr. Butler 9 asked the membership whether there was any 10 interest? 11 A. As a verbal conversation, I do not 12 recollect whether I asked that question or not, 13 I'm not sure. 14 Q. Okay. Thank you, I appreciate it. 15 CHAIRMAN MAHER: At this point, if 16 there's no other questions from opposing counsel, 17 are there any questions from members of the 18 audience of the expert before us which is 19 Mr. Perry? 20 Yes, sir. Please step forward. 21 State your name, spell your -- 22 MR. BOGARDUS: 77 Cedar Avenue -- 23 CHAIRMAN MAHER: You have to come up 24 to the recording to pick you up, sir. 25 CROSS-EXAMINATION OF WILLIAM PERRY BY THE PUBLIC: 24 1 MR. BOGARDUS: Mr. Perry, did 2 your -- 3 Jim Bogardus, B-o-g-a-r-d-u-s; 77 4 Cedar Avenue, Fair Haven. 5 Mr. Perry, in your expert opinion 6 and in your findings with the surrounding area of 7 the sites mentioned, do you take into account the 8 number of children that are in the area? 9 MR. PERRY: It's a hard question to 10 answer. 11 In this particular instance, sir, 12 are you referring? 13 MR. BOGARDUS: This one and -- the 14 site at the firehouse and the site at Knollwood 15 School. 16 MR. PERRY: Well, my understanding, 17 this for the record was -- 18 MR. IRENE: Did we qualify Mr. Perry 19 as a fact witness? I thought he was just a 20 fact-finding -- 21 MR. STILWELL: I was just letting 22 it -- 23 MR. IRENE: -- because he sent out 24 two letters -- 25 MR. STILWELL: I was just letting it 25 1 slide, Mr. Irene. 2 MR. IRENE: Okay. 3 MR. STILWELL: It's up to you, 4 though. 5 MR. IRENE: No, I just -- 6 MR. STILWELL: I understood -- I 7 heard the same thing you did. 8 MR. IRENE: No, no. I just want 9 to -- 10 MR. STILWELL: We did not qualify 11 Mr. Perry as an expert. 12 MR. IRENE: If someone reviews the 13 record going forward, I just want it to be clear. 14 MR. STILWELL: Yes, no, you're 15 correct. 16 MR. IRENE: And Mr. Perry, don't 17 take this wrong, I'm not questioning your 18 qualifications. I'm simply saying it was my 19 understanding Mr. Stilwell brought you to us to 20 say that you sent out these two letters and then 21 to describe what response you got. 22 But Mr. Bogardus, you can ask your 23 question, I'm just saying that I don't know that 24 he has been qualified as nor has he been 25 presented as a witness testifying as to site 26 1 selection and the basis for that. He just sent 2 out the letters to see if they were available. 3 You can ask him for what it's worth and we'll see 4 what he can answer. 5 MR. PERRY: In this particular 6 instance it was my understanding that this was 7 requested by the Board to research these 8 properties. And this was a follow-up on my part. 9 MR. BORGARDUS: Okay. 10 MR. PERRY: Okay? It was a 11 follow-up for interest on particular properties 12 within the municipality borough. 13 MR. BORGARDUS: Okay. 14 MR. PERRY: Normally, my answer 15 would be everything's considered. 16 MR. BORGARDUS: Okay. 17 Thank you. 18 CHAIRMAN MAHER: Thank you. 19 Any other questions from members of 20 the audience of this expert -- 21 MR. IRENE: Or witness. 22 CHAIRMAN MAHER: -- or witness? 23 Sorry. 24 MR. IRENE: We're going to get you 25 to be an expert sooner or later. 27 1 MR. PERRY: Okay, that costs more. 2 MR. IRENE: Increase your invoice on 3 the way home tonight. 4 MR. STILWELL: He's a damn good 5 fisherman. 6 AUDIENCE MEMBER: Hey. 7 CHAIRMAN MAHER: If not, then I 8 believe we're done. 9 MR. IRENE: We're done with this 10 witness. 11 CHAIRMAN MAHER: Thank you, 12 Mr. Perry. 13 MR. STILWELL: With that, that 14 concludes my direct case. 15 When we were here last, there was 16 also indication on Dr. Eisenstein's part that he 17 wanted us to provide him with some additional 18 information with respect to our proposed site and 19 the surrounding sites, the format that he wanted 20 that information presented in. And it's my 21 understanding that -- and I've seen copies of 22 what was presented. It's my understanding that 23 we have in fact presented the information to 24 Dr. Eisenstein that he requested. But we 25 don't -- unless there's some specific 28 1 question -- need to present that in terms of 2 direct testimony. It can come from 3 Dr. Eisenstein. 4 MR. IRENE: Well, it's up to you. I 5 guess a notion is, is there another exhibit that 6 we have to mark that's been submitted that 7 Dr. Eisenstein -- 8 DR. EISENSTEIN: Mr. Chair, first of 9 all, I received the information I requested. It 10 corroborates in my mind to previous exhibits. I 11 don't think it's necessary to introduce it. I'm 12 going to rely on the exhibits that were 13 introduced and my comments at the end. But this 14 was information that I wanted for my own purposes 15 so that I could better judge what the site was 16 around here. Now, if you think it should be 17 introduced I have it here with me and we could 18 introduce it -- 19 MR. IRENE: Well, I don't know, 20 because I'm not sure -- 21 DR. EISENSTEIN: It's not my 22 exhibit, but it's really up to you. 23 MR. IRENE: I'm not sure what we're 24 referring to, but I guess the notion is it isn't 25 going to hurt to mark it even those 29 1 Dr. Eisenstein said that essentially he's going 2 to refer to the other exhibits that have already 3 been marked. But why don't we -- 4 MR. STILWELL: Mr. Villecco -- 5 MR. IRENE: Why don't we just mark 6 it -- 7 MR. STILWELL: That's fine. 8 DR. EISENSTEIN: If you mark it, 9 then I'll refer to the new exhibits. 10 MR. STILWELL: We have boards that 11 are the same as your exhibits, might as well do 12 that then. 13 DR. EISENSTEIN: Why don't you mark 14 the boards, but we're not going to go over them 15 now. This is just really for the purpose of this 16 time. If you have them available, then I'll 17 refer to them then when we do it. Mark it as 18 exhibit. I did request it and they did send it 19 to me. 20 And let me be clear that I'm marking 21 mine the same as the way you're marking yours. 22 MR. VILLECCO: The first one would 23 be Verizon -- A-37 would be Verizon existing 24 coverage. 25 (Exhibit A-37, Verizon Existing 30 1 Coverage Without the Fair Haven Site at 3 Power 2 Levels, was received and marked for 3 identification.) 4 MR. IRENE: The record should 5 reflect that this is Dominic Villecco -- 6 MR. STILWELL: Villecco. 7 MR. IRENE: I apologize. 8 V-i-l-l-e-c-c-o. 9 MR. VILLECCO: That's correct. 10 MR. IRENE: Who's been previously 11 sworn. 12 You understand you remain under 13 oath, sir? 14 D O M I N I C C. V I L L E C C O, 3 Cedar 15 Brook Drive, Cranbury, New Jersey 08512, having 16 been previously sworn, testifies as follows: 17 MR. VILLECCO: Yes, I do. 18 DR. EISENSTEIN: Dom, you said 19 A-37 -- 20 MR. VILLECCO: A-37 is Verizon -- 21 DR. EISENSTEIN: Verizon existing? 22 MR. VILLECCO: Existing, that's 23 correct. 24 MR. STILWELL: Without the Fair 25 Haven. 31 1 DR. EISENSTEIN: Without -- at three 2 power levels you went at? 3 MR. VILLECCO: Yes, right. There's 4 three different colors of ink here which 5 represent three power levels as requested by 6 Dr. Eisenstein. 7 MR. IRENE: Can you just give me the 8 caption of that, Mr. Villecco, so I know we can 9 refer to the exhibit? 10 MR. VILLECCO: New York SMSA Limited 11 Partnership, doing business as Verizon Wireless, 12 Fair Haven New Jersey Existing sites (Without 13 Fair Haven Site). 14 MR. IRENE: Okay, thank you. 15 MR. VILLECCO: A-38 would be 16 Verizon's proposed coverage. Same title except 17 the subtitle is the existing sites with Fair 18 Haven site. 19 (Exhibits A-38, Verizon Existing 20 Coverage With Fair Haven Site at 3 Power Levels, 21 was received and marked for identification.) 22 DR. EISENSTEIN: Again, at three 23 hour levels. 24 MR. VILLECCO: Three power levels, 25 correct. 32 1 And then A-39 would be T-Mobile, 2 which Omnipoint's the applicant, but they operate 3 as T-Mobile, Fair Haven, New Jersey. The 4 subtitle is Existing Site (Without Fair Haven - 5 NJ0A273F Site). 6 (Exhibit A-39, T-Mobile Existing 7 Coverage Without the Fair Haven Site at 3 Power 8 Levels, was received and marked for 9 identification.) 10 MR. STILWELL: And three -- 11 MR. VILLECCO: At three power 12 levels. 13 And the final one is A-40. And that 14 again is T-Mobile. The applicant actually being 15 Omnipoint. Same title Fair Haven, New Jersey. 16 Existing sites with Fair Haven, NJOA273F site. 17 (Exhibit A-40, T-Mobile Existing 18 Coverage With the Fair Haven Site at 3 Power 19 Levels, was received and marked for 20 identification.) 21 EXAMINATION BY MR. STILWELL: 22 Q. And with respect to all four of 23 these sites, these were prepared by you or under 24 your direction? 25 A. Yes. 33 1 Q. And they were prepared at the 2 request of Dr. Eisenstein? 3 A. Yes, that's correct. 4 Q. And the three power levels are neg 5 95, neg 85 and -- 6 A. Well, for T-Mobile it's neg -- the 7 green matches the green in the previous exhibits 8 which is neg 76, the yellow is neg 84, and the 9 red is negative 95 as requested by 10 Dr. Eisenstein. 11 For Verizon, the green as previous 12 is minus 78 dBm, the yellow is minus 85 dBm and 13 the red is minus 95 dBm. 14 Q. Okay. And you prepared those using 15 the same propagation tool that you used to 16 prepare the other exhibits? 17 A. As the Verizon exhibits, yes. 18 Q. Okay. So that they would correlate 19 if they were compared -- 20 A. Yes. 21 Q. -- on appropriate scales, et cetera? 22 A. Yes. 23 MR. STILWELL: Unless 24 Dr. Eisenstein thinks something else is 25 required -- 34 1 DR. EISENSTEIN: I have no questions 2 of him. I was satisfied with him. I look 3 forward to building comparisons with the previous 4 exhibits. 5 MR. STILWELL: Okay. 6 MR. IRENE: Yeah, my understanding 7 is those exhibits, for lack of all this technical 8 stuff are reworkings of the earlier exhibits 9 showing these three power levels as requested by 10 Dr. Eisenstein? 11 MR. STILWELL: Correct. 12 MR. IRENE: All right. So that 13 being the case, I'm assuming the Board members 14 don't have any questions, but anybody have any 15 issues on that? 16 Anybody else? 17 Great. 18 MR. STILWELL: Dr. Eisenstein is in 19 my understanding will explain to you why he 20 wanted to see that and what value it had for him. 21 So... 22 MR. IRENE: That would be terrific. 23 Okay. 24 MR. STILWELL: That's all I have. 25 That's my direct case. I reserve the right to 35 1 present rebuttal if I believe it's necessary 2 based on anything presented by the objectors. 3 And -- 4 MR. IRENE: We'll save the 5 summations -- 6 MR. STILWELL: We'll save the 7 summation in any event -- in the event we finish 8 until next time -- 9 MR. IRENE: Okay. 10 MR. STILWELL: -- which I believe is 11 May 10th. 12 MR. IRENE: Correct. 13 Yeah, I would suggest then that we 14 inquire as to whether Mr. Lieberman has any 15 witnesses that he would like to call. 16 CHAIRMAN MAHER: He did go out the 17 back door a minute ago. 18 MR. IRENE: Mr. Stilwell, could you 19 do me a favor, please, could you go out there -- 20 could you just poke your head out and see if 21 Mr. Lieberman's out there and if he has any 22 witnesses that he would like to present? 23 CHAIRMAN MAHER: Let him know we 24 have a meeting. 25 MR. IRENE: Yeah, or ask him if he 36 1 would like to come to us. 2 MR. LIEBERMAN: I've been waiting 3 for you. 4 CHAIRMAN MAHER: Excellent. 5 MR. LIEBERMAN: Good evening, 6 everybody, I'm Stuart Lieberman, and I'm from the 7 firm Lieberman & Blecher in Princeton, New 8 Jersey, and I was retained by the governing body 9 of this municipality to represent its position 10 with regard to this obviously important 11 application in everybody's mind. 12 I have one witness right now and 13 that is Council President Gilmore who I'd like to 14 testify about where the governing body is in 15 terms of the work that it's been doing, what its 16 view is of this particular application and why 17 and what options and alternatives that it's been 18 looking at. And I think that that would at least 19 provide some clarity about where some people in 20 the governing body are coming from. So let me 21 pull the Council President. 22 MR. GILMOUR: Good opening. 23 MR. LIEBERMAN: I guess you have to 24 be sworn in. 25 T H O M A S J. G I L M O U R, I I I, 864 37 1 River Road, Fair Haven, New Jersey, having been 2 first duly sworn, testifies as follows: 3 MR. GILMOUR: Thomas J. Gilmour, 4 III, G-i-l-m-o-u-r, and I'm Council President for 5 the Borough of Fair Haven. 6 DIRECT EXAMINATION BY MR. LIEBERMAN: 7 Q. Good evening. How long have you 8 been the Council President? 9 A. I've been the Council President for 10 three years. 11 Q. And you're aware of the application 12 that is before the -- this -- the Zoning Board, 13 aren't you? 14 A. Absolutely. More so than I'd like 15 to. 16 Q. And you have an understanding of 17 what the governing's body position is with regard 18 to this application, don't you? 19 A. I do. 20 Q. Would you tell the Board members 21 where the governing body comes out with regard to 22 this particular application that's before the 23 Zoning Board? 24 A. Well, I think it's obvious the fact 25 that we've retained you as our attorney to 38 1 actually come in here and oppose the application 2 as to where the Council stands as far as this 3 application is concerned. It's been significant 4 public opposition to this application. So as the 5 Council we decided that we would hire you to come 6 in and represent the Council and the Borough in 7 opposition of this application. 8 Q. Now, am I the best lawyer you've 9 ever seen in your life? 10 No, no, sir. 11 MR. IRENE: And remember you're 12 under oath. 13 A. I'll answer that by saying I think 14 we're getting our monies worth. 15 Q. The question I have for you -- the 16 real question I have for you is this, can you 17 describe -- do you have an understanding as to 18 why it is that the governing body opposes this 19 application? What are the factors that the 20 governing body's considered and what is the 21 governing body's position with regard to those 22 issues? 23 A. I think there's a couple. One is 24 obviously public opposition to this application. 25 The other is the environmental impact that it 39 1 will have not only on the specific piece of 2 property where the tower is intended to be 3 located, and also the fact that the removal of a 4 significant number of trees to locate the tower 5 there will have an impact on our park system. 6 Q. What do you mean by impact on the 7 park system? 8 A. Well, I think it's a visual impact, 9 quite frankly, is that that row of trees that 10 goes along Gentry really is a natural buffer to 11 the parking lot and we're actually expanding the 12 parking lot in the park there. So I think that 13 the natural buffer is even more important today 14 than it has been in the past. 15 Q. Was the Council concerned about any 16 visual aesthetics issues with regard to the 17 people that live on Gentry Drive? 18 A. Well, I think that the fact that 19 there was significant opposition in primarily to 20 visual impact of the cell tower in that area, I 21 think that came into play, yes. 22 Q. Now, you've attended many of these 23 hearings over the last year, right? 24 A. Yes, I have. 25 Q. And you're aware that the applicant 40 1 has proposed to conceal its tower using a stealth 2 kind of proposal, aren't you? 3 A. Yes. 4 Q. Does that effect the governing 5 body's concerns concerning the aesthetics with 6 regard to this project? 7 A. Well ,I don't think the Council has 8 really talked about too much about the 9 aesthetics. I think that these towers just have 10 visual pollution no matter where they're located 11 and this location happens to be one that will 12 just definitely have significant visual impact. 13 Q. Now, has the governing body other 14 than retain me, has the governing body taken any 15 other proactive measures concerning trying to 16 find other locations for a tower that could be 17 installed by the applicant? 18 A. Uh-hum. Well, I think it's 19 important, too, that as far as this testimony, I 20 clear up some things as far as what the Borough 21 has done because what's been reported in the 22 paper is what's been reported in the paper. 23 As you know, we put in a second 24 application to the DEP for a Green Acres site. 25 We spent significant time and money developing 41 1 that application and unfortunately we're denied. 2 Even though it was what I considered a very 3 win-win situation where we actually increase 4 significantly the area of the park for a very 5 small part and a part that would really be in a 6 place where no trees would be taken down. 7 However, as you all know, we were 8 turned down by the DEP. We are in a process 9 right now, the Council has not made a decision as 10 to what they're going to be doing. However, the 11 problem that we have right now is the DEP has 12 not, even up to this date -- and I'll ask the 13 Borough attorney whether we had received 14 anything -- okay -- received a denial letter 15 which we were told at our meeting two months ago 16 that we would receive within a couple of weeks 17 after we were denied. 18 We really can't make a decision 19 whether we're actually going to appeal that 20 denial until we actually get the letter and 21 determine what our chances were -- are in 22 actually appealing that decision. 23 Q. Okay, so sticking with that issue, 24 and then we'll looking at other things that 25 you've done, what you've done is you asked DEP to 42 1 in effect take part of the park which is Green 2 Acres property and to allow a small part of the 3 Green Acres property to be used for the antenna; 4 isn't' that correct? 5 A. That's correct. 6 Q. And the offer that made was to -- to 7 make other property, a larger amount of property 8 Green Acres; in other words, to do maybe a 9 two-for-one, a three-for-one exchange; isn't that 10 correct? 11 A. Yeah, it was a two and-a-half sort 12 of trade, land diversion trade. And in addition 13 to that, as you are aware, we have a chipping 14 situation up in -- off of Hendrickson where we 15 actually chip our wood, which at one time we were 16 given permission by Green Acres to go up there 17 and do that, and since that time they told us 18 that we're not supposed to be up there chipping. 19 So we actually, besides swaping the property, we 20 also have offered to restore that area back to 21 its natural state. So that was our trade-off as 22 far as taking a very small piece of property. 23 Q. And as far as you know as far as 24 anything that you heard from any of the 25 professionals that you've retained, there isn't a 43 1 written DEP prohibition against this; isn't that 2 correct 3 A. That's correct. 4 Q. But rather what's being cited as 5 some kind of visceral policy statement from the 6 DEP; isn't that correct? 7 A. Well, I would have to agree with 8 that statement. But since I really haven't seen 9 the denial letter -- I mean, it's very hard for 10 us to really make any determination about our 11 application at this time without really getting 12 that formal denial letter from the DEP. 13 Q. So as to that issue, and we're going 14 to talk about other issues, best to that issue, 15 the governing body has not only has explored it 16 and spent a tremendous amount of money, but might 17 even take an appeal depending on whether it 18 determines it has a chance of prevailing once it 19 sees the written objection is that denial; isn't 20 that correct? 21 A. That is correct. We authorized our 22 Borough attorney to contact the DEP and demand 23 that we get our denial letter, and that was done 24 I think on Friday or certainly late last week. 25 Q. Okay. Now, what else has the 44 1 governing body done in order to look for a 2 alternative to the site being proposed by the 3 applicant so that the applicant can have an 4 antenna here in Fair Haven? 5 A. Well, as you're all aware, we looked 6 at many different sites in town and quite frankly 7 determined that almost all of them were not 8 acceptable as far as the Borough Council was 9 concerned. We are, as you may have read, in 10 discussions, very preliminary discussions. I 11 have a letter here that I did fax to the Verizon 12 attorney. I didn't have a chance to see whether 13 he got it or not. 14 MR. STILWELL: He did. 15 A. Okay. And I'll give you a copy of 16 that, but I just got it -- 17 MR. LIEBERMAN: Let's mark it as M-1 18 for Municipality, okay. 19 MR. IRENE: Tell us what the date of 20 the letter is. 21 MR. LIEBERMAN: The letter is dated 22 April 15, 2007, addressed to Council President 23 Gilmour from a Paul Liao, L-i-a-o. I hope I 24 pronounced his name right. 25 MR. GILMOUR: Stuart, there's a 45 1 bunch of copies right here. You can mark one in, 2 but if you want to -- 3 MR. LIEBERMAN: Oh, I see, you have 4 copies as well. Okay. So we have one and then 5 we'll have courtesy copies as well. 6 (Handing out Exhibit M-1.) 7 (Exhibit M-1, Letter Addressed to 8 Council President Gilmour from Paul Liao; Dated: 9 4/15/2007, was received and marked for 10 identification.) 11 MR. IRENE: Is this the original? 12 MR. LIEBERMAN: Yes -- well, no, 13 it's an original copy -- 14 MR. GILMOUR: Would you like the 15 original? 16 MR. IRENE: No, no, no, no. I just 17 wanted to know if that was the one that was 18 marked. 19 MR. LIEBERMAN: Warren, I don't 20 think we're going to get to 37 like you. 21 MR. IRENE: Now -- 22 (Handing to the Secretary.) 23 MS. MERCADANTE: That's M-1? 24 MR. IRENE: That's M-1. 25 MS. MERCADANTE: Okay. 46 1 BY MR. LIEBERMAN. 2 Q. So what were you -- you just were 3 referring to that letter and what did you want to 4 say about that? 5 A. I asked the church for a letter, 6 actually. The Mayor and myself met with the 7 trustees of the church two weeks ago to determine 8 whether there may be an opportunity for the 9 Borough to lease a piece of their property. This 10 was based on a discussion that we had about four 11 or five months ago with the church where they 12 held a public meeting to invite the neighbors in 13 to discuss the possibility of a cell tower being 14 located on the Methodist Church property. 15 So we decided after we were denied 16 from the DEP to reopen those conversations. And 17 very truthfully what they are right now are 18 conversations. However, I think there is an 19 agreement by both the Borough and the church 20 right now to follow-up on that and see whether 21 that could be a possible site for a church. 22 What the Council has done right now 23 is we have talked about this in Executive session 24 and have retained a consultant to help us put 25 together a proposal that we will submit to the 47 1 church to see if we can come to some type of an 2 agreement as far as locating a tower on church 3 property. 4 Q. That consultant is in the nature of 5 an R.F. consultant; isn't that correct? 6 A. Yes. 7 Q. And I think it would be helpful, if 8 you could do it, to show the Board where this -- 9 MR. LIEBERMAN: Well, does everybody 10 know where the church is? 11 MS. FICARRA: Yes. 12 MR. LIEBERMAN: Everybody knows 13 where the church is, okay. 14 BY MR. LIEBERMAN: 15 A. I think it would be important to 16 actually illustrate because what I think a lot of 17 people in town don't realize is that the church 18 actually owns five acres of property there. So 19 it's much more than just the parking lot and the 20 church. They own a lot of property behind the 21 church that is in the woods back there. 22 And what the discussions are based 23 on is a piece of 70-by-70 property that is 24 located on the southeastern side of the property 25 that they own. So it's back in the woods 48 1 actually behind sort of the turnaround that 2 exists it in the front of the church. 3 If you want to put the map up 4 there... 5 MR. STILWELL: Why don't you use the 6 area, it's right there. Just refer to the 7 correct exhibit number, please 8 MR. IRENE: What's the exhibit 9 number? 10 MR. LIEBERMAN: A-24. 11 MR. IRENE: A-24? 12 MR. LIEBERMAN: Yes. 13 MR. IRENE: Thank you. 14 MR. LIEBERMAN: You're welcome. 15 BY MR. LIEBERMAN: 16 Q. Okay. So where do you acclimate 17 yourself -- 18 A. Hold it, let me just get my 19 bearings. 20 (Reviewing area map.) 21 MR. STILWELL: This is the church 22 right here (indicating). 23 A. Okay. So this is Ridge Road right 24 here (indicating) and this is the roadway that 25 goes between Ridge Road and the corridor. This 49 1 is the church and this is the church parking lot 2 here (indicating). 3 The piece of property, and I can't 4 be exact, but basically that the church owns is a 5 piece of property like that (indicating). We're 6 looking at a site back in this area right here 7 (indicating). 8 Q. So I mean,I don't want to mark up 9 the applicant's exhibit, but it's the building 10 that is, if you're looking at diagram the right 11 way, it's on top of the tennis courts, that's the 12 church, right? 13 A. Yes, sir. 14 Q. Okay. And so -- and the area that 15 you're talking about is on that property. And 16 where do you say that their property is? 17 A. The property is -- the southern 18 boundary is right a little bit beyond the round 19 driveway that exists in front of the church and 20 then goes back fairly deep into the woods, comes 21 back out, goes along the back property line of 22 the property that is -- the property owners on 23 the corridor, comes back out to the road and then 24 also encompasses the rectory house of the church 25 that they own, and also part of the end of 50 1 McCarter and the entrance into the existing 2 parking light lot right there (indicating). 3 Q. That's the parking lot with the 4 pavement with the stripping in front of the 5 church, that's the parking lot. 6 Has there been any concept in terms 7 of where this would go? 8 A. Yes. Again, the place that we're 9 looking at is very specific. It's not in the 10 parking lot, it's not by the church. It's 11 actually in the woods behind the church 12 approximately right about here (indicating). 13 Q. Okay. So that area is the area and 14 based on your visual observation that's 15 surrounded by trees in every area; is that 16 correct? 17 A. That's correct. 18 Q. You don't know how far that is in 19 terms of feet from the applicant's proposal, do 20 you? 21 A. I don't. 22 DR. EISENSTEIN: There's a scale. 23 MR. IRENE: Is there a scale on it? 24 MR. LIEBERMAN: One inch equals 100. 25 (Calculating footage.) 51 1 BY MR. LIEBERMAN: 2 Q. Where's the proposed -- 3 A. (Indicating.) 4 Q. Okay. So it would be from the 5 orange dot until there? 6 A. (Measuring with a ruler.) 7 Q. It's a little over a 1,000 feet. 8 MS. GOTTUSO: Thousand feet from 9 what? 10 MR. LIEBERMAN: These two sites are 11 about a thousand feet apart. 12 BY MR. LIEBERMAN: 13 Q. Is the topography the same as far as 14 you know, visually? 15 A. I think it's actually a little 16 higher than the Verizon site. It's also 600-plus 17 feet away from any house. 18 Q. Six hundred feet away from any house 19 over there? 20 A. Right. 21 Q. And shielded by trees? 22 A. Correct. 23 Q. Now, the arrangement, if this should 24 be worked out, would be one where there would be 25 a lease from the church to the governing body; 52 1 isn't that correct? 2 A. I really can't comment on that, 3 that's certainly our intention, but that has not 4 been agreed to yet. 5 Q. Okay. 6 And is there any -- other than the 7 questions that I asked you, is there anything 8 that you think would be helpful if the Zoning 9 Board knew concerning the -- either the 10 municipality's position with regard Ms. Orick's 11 (pho) plans or have we covered it all for now? 12 A. Well, we've never covered it all. 13 But I think that -- I just, you know, I think 14 it's important to know that the Zoning Board -- 15 for the Zoning Board to know that the Council is 16 still moving forward with their efforts to locate 17 a cell tower in Fair Haven. And although we've 18 been beaten up a couple of times, we're still 19 looking at alternatives and hoping that we'll be 20 able to come up with a site that is amenable to 21 the residents of Fair Haven. 22 Q. Okay. Well, I have no further 23 questions for you right now. 24 A. Okay. 25 Q. Thank you very much. 53 1 Why don't you just hang here in case 2 somebody else -- 3 A. Okay. 4 CHAIRMAN MAHER: At this point, if 5 there's questions from members of the Board to 6 Mr. Gilmour, before the Town Council President? 7 CROSS-EXAMINATION OF THOMAS J. GILMOUR 8 BY THE BOARD: 9 MS. FICARRA: Mr. Gilmour, how many 10 trees would have to be taken down in that area? 11 MR. GILMOUR: I don't know that 12 question yet. 13 MS. FICARRA: Would you think it 14 would be about the same number? 15 MR. GILMOUR: No, actually not. 16 Even though that area looks like it's very 17 wooded, we would just clear out a small area just 18 for this tower itself. 19 MS. FICARRA: Wouldn't that be the 20 decision of the cell phone tower company on how 21 much trees would have to be taken down? 22 MR. GILMOUR: Well, we would 23 certainly consult with them. We're working with 24 our engineer right now to determine the answer to 25 that question. There would be trees that had to 54 1 be taken down, yes. 2 MS. FICARRA: And the access to it? 3 MR. GILMOUR: The access, again, our 4 engineer's working on that. There is a pathway 5 that goes in along side the property in the park 6 right now or we would actually have to build an 7 access road in from the church to the site. We 8 haven't been able to determine that right now. 9 Again, as Verizon has testified already, once 10 it's up, access to the site is very minimal just 11 to come in and service. But getting the tower 12 built will required some -- some site work. 13 MS. FICARRA: Thank you. 14 CHAIRMAN MAHER: Any other 15 questions? 16 MS. REEVEY: How far away from the 17 walk that they have there in the field, is that 18 anywhere near that? 19 MR. GILMOUR: Well, I know it's 20 pretty close to the pathway that comes in off of 21 the roadway that goes in. There's a straight 22 roadway that goes is -- a path that goes -- 23 there's a broken fence, you know, a space between 24 a fence that goes back in there. And I believe 25 when you get to the path that turns left, that's 55 1 the edge of the church property there, I think. 2 Again, I was hoping that I'd have something from 3 the engineer here so we could be a little more 4 specific. 5 CHAIRMAN MAHER: Ms. Gottuso, you 6 had a question? 7 MS. GOTTUSO: Yeah. 8 Other than other than there's a 9 clear benefit of being 600 feet from any 10 residential home, what are the other benefits of 11 this site versus the church site, the other 12 church site? 13 MR. GILMOUR: Well, I think the big 14 benefit is that the Borough Council has control 15 over the site itself. One, we would be getting 16 revenue from the site, and, again, I think it's 17 just a much better location. One for reception 18 and, two, for also as far as aesthetics are 19 concerned. I think the tower itself will be much 20 more hidden because it's sitting right in the 21 middle of the woods and therefore the visual 22 impact would be significantly less. 23 CHAIRMAN MAHER: Any other questions 24 from members of the Board? 25 MS. GOTTUSO: I have one more 56 1 question. 2 Just who owns the property from 3 River Road to the Methodist Church? 4 MR. GILMOUR: That's part of Green 5 Acres. The field is actually divided fairly 6 equally into active space and inactive space and 7 that's sort of the dividing line. 8 FURTHER DIRECT EXAMINATION OF THOMAS J. GILMOUR 9 BY MR. LIEBERMAN: 10 Q. Does the Green Acres own the 11 property -- excuse me, does the Green Acres 12 control the property sort of on both sides of 13 that site? 14 A. Yes. 15 Q. Isn't it sandwiched by Green Acres 16 property? 17 A. It's all Green Acres property. 18 Q. Okay. 19 A. The whole park is Green Acres 20 property. 21 MS. GOTTUSO: But not this 22 particular site that you're talking about? 23 MR. GILMOUR: No, that belongs to 24 the Methodist Church. It is abuts the Fair Haven 25 Fields, but it's owned by the Methodist -- 57 1 BY MR. LIEBERMAN: 2 Q. But it's right by the other site 3 that you proposed, the other Green Acre site, 4 right? 5 A. Well, I wouldn't say it's right by 6 it, I mean, it's probably 700 feet from where we 7 were. 8 Q. But the fact that the church owns 9 it is the only reason why we have a pray? 10 A. That's correct. 11 MR. LIEBERMAN: Mr. Stilwell, any 12 questions? 13 CHAIRMAN MAHER: Any questions 14 Mr. Stilwell? 15 MR. LIEBERMAN: Here, I'll get out 16 of the way for you. 17 MR. STILWELL: That's all right, I 18 can stand up, Stu. 19 CROSS-EXAMINATION BY MR. STILWELL:. 20 Q. The first question I have has to do 21 with the notion of Green Acres, and the fact is 22 that the town is not legally able to offer Fair 23 Haven Fields or any portion of it -- and it's all 24 encumbered by Green Acres -- is not legally able 25 to offer it to anybody for use other than as 58 1 Green Acres; is that correct? You couldn't lease 2 it to anybody? 3 MR. LIEBERMAN: Well, you know, 4 that's a legal question. I think that's a legal 5 question. 6 MR. STILWELL: That's fine. 7 BY MR. STILWELL: 8 Q. What's your understanding as to 9 whether or not the town has the legal ability to 10 lease the property out? 11 A. My understanding would be that any 12 use within that park other than what was intended 13 would need to be approved by Green Acres or the 14 DEP. 15 Q. Okay. And are you aware of the fact 16 that there's actually a group been formed in Fair 17 Haven that I've read about that has been formed 18 to protect the Green Acres encumbered property 19 and not permit a tower to be located on that 20 property? 21 A. Yes, I am. In fact, I'm aware of 22 every person who has an opinion on the cell tower 23 in this town. 24 Q. Very good. 25 With respect to the Methodist 59 1 Church, the fact is that as we're here this 2 evening, no deal has been reached with the 3 church; is that correct? 4 A. That's absolutely correct. 5 Q. And in fact, according to the letter 6 that was submitted as M-1, the church has 7 indicated that they have a list of questions that 8 they want answered before they'll even consider 9 leasing to you? 10 A. That's correct. 11 Q. Apparently -- 12 A. Well -- 13 Q. I'm sorry. 14 A. That's okay. 15 That's correct. And since I'm part 16 of negotiations right now, I really can't comment 17 on those questions or answers to those questions. 18 Q. Except that there is no deal 19 currently on the table? 20 A. That is correct. 21 Q. So you're not able to currently 22 advise this Board or the applicants that that 23 site is available to -- 24 A. That is correct 25 Q. The access to the United -- oh, 60 1 first of all, the size of the Methodist Church, 2 your understanding of the property is based on 3 your review of what? 4 A. A site map that was -- survey that 5 was provided to us by the church. 6 Q. Pardon me, a site map? 7 A. Yes. 8 Q. Okay. Did you -- you have tax maps 9 of that; is that correct? 10 A. Yes, that's correct. 11 Q. If you were to actually -- well, 12 first of all, would it make any difference to the 13 township whether these applicants dealt directly 14 with the Methodist Church and entered into their 15 own lease with the Methodist Church or does it 16 have to be through the township in your opinion? 17 A. Well -- 18 MR. LIEBERMAN: Excuse me. Do you 19 mean other than the fact the ordinance requires 20 that it be on municipal property, you mean, 21 besides that; is that correct? 22 MR. STILWELL: Well, let's just say 23 it would be my opinion, legal opinion, that 24 municipally-leased property would not make it 25 municipal property. It would be United Methodist 61 1 property leased by the municipality. And I don't 2 think that would convert for zoning purposes, it 3 certainly wouldn't change the zoning to PB from 4 its current zoning. And municipally-owned 5 property is the standard that this ordinance goes 6 by, it's PB zoned property. 7 MR. LIEBERMAN: But that's one 8 attorney's opinion. You'd agree it doesn't go 9 beyond that? 10 MR. STILWELL: No -- 11 MR. IRENE: Hold on a second before 12 you guys go back and forth over the ordinance. 13 Does the ordinance say it has to be 14 municipal-owned property? It says PB zone. 15 MR. STILWELL: Period. 16 MR. IRENE: So if someone has 17 something else, let's clear it up right for the 18 record now because I couldn't find it. Now, I'll 19 be the first to admit that I had a hard time 20 finding this -- 21 MR. STILWELL: I agree with you -- 22 MR. IRENE: -- this ordinance. 23 MR. STILWELL: Mr. Irene, it's my 24 understanding a P, a letter P -- 25 MR. IRENE: Mr. Stilwell is saying 62 1 that the ordinance provides that these types of 2 facilities are permitted uses in the PB zone. 3 That's what I saw, but let's give Mr. Lieberman a 4 chance that if I've missed something that we can 5 clear it up for the record right now. 6 Do you have anything else that I'm 7 missing? That's the same thing as 8 municipally-owned, is it, the PB zone? 9 MR. LIEBERMAN: It's an overlay sort 10 of thing, that's what it is, is what you just 11 said. 12 MR. IRENE: What is being overlaid 13 on what that makes it -- all I see is PB zone. 14 So if I'm missing something, let's make the 15 record clear in case anybody reviews this in the 16 future. Because I assume Mr. Stilwell's going to 17 be talking about the revenue issue -- and again, 18 I don't know where we're going to go with that. 19 But before we get off the issue of 20 what is permitted where, all I see in the 21 ordinance is that telecommunication facilities 22 are permitted uses in the PB zone. And I don't 23 see anything that says properties in the PB zone 24 are all municipally-owned properties unless I'm 25 missing something. 63 1 MR. STILWELL: No, you're not. 2 MR. IRENE: Okay. I just want to 3 give Mr. Lieberman a chance to address that in 4 case I am or in case the Board is or in case 5 Mr. Stilwell is just so we know what we're 6 dealing with. 7 Mr. Lieberman, I -- 8 MR. LIEBERMAN: I think the 9 ordinance speaks for itself, that's my 10 understanding of what it says. 11 MR. IRENE: Which is your 12 understanding? 13 MR. LIEBERMAN: What you said is 14 what I think it says, that's it. 15 MR. IRENE: Okay. I just want to be 16 clear on this because again I'm still 17 familiarizing myself with it. And you have to 18 refer to the initial section and then the 19 amendment. I wanted to make sure I wasn't 20 missing anything. 21 Okay, so, PB zone. I apologize for 22 interrupting you, but let's clear that up for the 23 record and in that way if you ask Mr. Gilmour 24 question, he'll be able to answer them and we 25 won't be confused in what we're talking about. 64 1 Go ahead. 2 BY MR. STILWELL: 3 Q. You've indicated that one of the 4 things that would make this a beneficial site, 5 meaning the Methodist Church site a beneficial 6 site, would be the fact that the municipality 7 would be gaining the revenue from a site. Is 8 that correct? 9 A. That was correct, yes. 10 Q. So does that means then if Verizon 11 Wireless made a deal directly with the church for 12 the exact same site that it would not be as 13 desirable from a land use perspective? 14 A. Well, I should comment, too, that 15 one of Council's fear right now is that based on 16 prior testimony during this application there was 17 indication that there's a possibility that two 18 cell towers may have to be built. It's our 19 feeling that if the cell tower was located in a 20 better spot than the spot at the Nativity Church, 21 then that would diminish the need to have two 22 cell towers in town. 23 So our feeling is multiple here. 24 The fact that the cell tower may be built on a 25 property that is not owned about by the Borough, 65 1 obviously, we would not be able to get as much 2 revenue as we would on a cell tower that was 3 built on our own property because we'll have to 4 lease the property or cut -- whatever is 5 negotiated with the property owner. 6 So the people have accused the 7 Borough Council of pursuing the cell tower based 8 on, you know, getting revenue for the town. And 9 as a councilman, you know, I am obligated to if I 10 can increase the revenue for this Borough, I'm 11 going to try to do that. But I think the real 12 motivation that's going on right now is the fact 13 that this is a better location for the cell tower 14 in the Borough of Fair Haven. 15 Q. Would it be your understanding since 16 the only place that cell towers are permitted is 17 in the PB zone and this is not the PB zone that a 18 use variance would be required for a cell tower 19 at this particular cite? 20 MR. LIEBERMAN: Wait a second...no, 21 no, no. This is a Council President. I mean, if 22 you want to ask him about his understanding of 23 land use and whether he's in a position. You 24 want to voir dire him, that's fine, but I mean, 25 this isn't a witness qualified to make that -- I 66 1 mean, you and I still can't figure things like 2 that out. 3 MR. STILWELL: I can figure it out. 4 BY MR. STILWELL: 5 Q. Does the City Council Mayor -- in 6 your capacity as Council President and in your 7 tenure in city government, you've had many 8 occasions to review ordinances and act on them; 9 is that correct? 10 A. That's absolutely correct. 11 Q. All right. And so you're familiar 12 with the land use ordinances of the Borough of 13 Fair Haven, are you not? 14 A. I am. 15 Q. All right. And you're familiar with 16 the fact that the only place that a cell tower is 17 permitted in the Borough of Fair Haven is in the 18 PB zone; is that correct? 19 A. That appears to be correct. 20 Q. All right. And so you could -- 21 could you then draw a conclusion or could one 22 reasonably draw a conclusion that in order for a 23 cell tower to be built at the United Methodist 24 Church, a variance would be needed before this 25 Board; is that correct? 67 1 A. I would refer to counsel to answer 2 that question for me. 3 Q. All right. But based on your 4 experience as a Council President and somebody 5 who's familiar with land use ordinances, you do 6 not have an understanding in that regard? 7 A. I would have to refer to the Borough 8 attorney to answer that question. 9 MR. IRENE: I assume, Mr. Stilwell, 10 you're going to make your argument in closing 11 that the Methodist Church is outside the PB zone, 12 so if you went there you need a use variance 13 anyway. 14 MR. STILWELL: That's correct. 15 MR. IRENE: Okay. So you make that 16 argument in closing. He isn't going to tell you 17 that it's his understanding you require a use 18 variance or not. Make your argument. 19 BY MR. STILWELL: 20 Q. All right. The pre-corollary 21 question then is that would it also be your 22 understanding that if -- if a use variance were 23 required for a cell tower at this particular 24 property that in fact the oversight and control 25 of what happened at that site would vest in the 68 1 Zoning Board of Adjustment as it does currently 2 with respect to this application? 3 A. I can't answer that question because 4 I don't know legally whether a variance would be 5 required. 6 Q. With respect to your appearance this 7 evening, is this something that was -- is there a 8 resolution adopted indicating that you should 9 appear here on behalf of the Council and the 10 Borough? Is this an official visit authorized by 11 the Council, the Mayor and Council? 12 A. No. There was no resolution and 13 therefore it is not an official. 14 Q. Okay. So you're not appearing here 15 as Council President, you're appearing as an 16 Individual citizen of the -- resident of the 17 Borough of Fair Haven? 18 MR. LIEBERMAN: Who happens to be a 19 Council President. 20 MR. STILWELL: Well, that's what I'm 21 trying to find out if he's here in an official 22 capacity or not. 23 MR. LIEBERMAN: Well, if he's in 24 France he's a Council President, too. 25 BY MR. STILWELL: 69 1 Q. I'm asking the question are you here 2 in an official capacity? 3 A. I was not authorized by the Council 4 to appear here tonight. 5 Q. Okay. That's all I have. Thank 6 you. 7 MR. IRENE: Just so we're clear 8 because obviously counsel, both counsel are going 9 to be -- may argue this point, I know 10 Mr. Stilwell raised it. I'm assuming from the 11 colloquy that the United Methodist Church is not 12 located in a PB zone. Is that an accurate 13 assumption, do we know what zone it's in? 14 MR. STILWELL: I assumed it was the 15 same zone as we're in, but that's an assumption 16 on my part. 17 MR. IRENE: I just think the record 18 should be clear when counsel in summation get 19 around to arguing that point. In case anybody 20 reviews the record, we should just nail down the 21 point as to whether it's in the PB zone or not. 22 MR. STILWELL: Well, maybe 23 Mr. Gilmour knows. 24 MR. IRENE: That's what I'm asking. 25 Do you know, Mr. Gilmour? 70 1 MR. GILMOUR: I do not. 2 MR. IRENE: You don't, okay. 3 Okay. I don't know if we have a 4 zoning map, perhaps somebody can take a look at 5 that at some point and tell us because we don't 6 want to leave that dangling. 7 MS. MERCADANTE: You want me to get 8 the zone map? 9 (Discussion off the record. 10 Locating zoning map.) 11 DR. EISENSTEIN: Give us the block 12 number on -- 13 (Discussion off the record. 14 Locating zoning map.) 15 (Back on the record.) 16 MR. IRENE: Do we have a Lot and 17 Block number for the United Methodist Church? 18 MR. LIEBERMAN: Just for the record, 19 it's an R-40 zone. 20 MR. IRENE: Thank you very much. 21 MR. LIEBERMAN: Yes. 22 MR. IRENE: At least we'll all know 23 what we're dealing with. 24 MR. STILWELL: Oh, I did forget to 25 ask a question. I'm sorry. 71 1 MR. IRENE: Okay, ask him. 2 MR. LIEBERMAN: No, he's precluded. 3 He finished. 4 MR. IRENE: It's all right we'll 5 bring him back. He didn't leave the room yet. 6 Mr. Lieberman, that was at R-40 7 zone, was it? 8 MR. LIEBERMAN: Yes. 9 MR. IRENE: Thank you very much. 10 BY MR. STILWELL: 11 Q. I'm sorry, Mr. Gilmour, I forgot to 12 ask you something. 13 A. Sure. 14 Q. The access to this -- the United 15 Methodist Church off of Ridge Avenue is by way 16 currently of a driveway which is an easement; is 17 it not? 18 A. I believe it is, yes. 19 Q. And that easement crosses the Green 20 Acres property? 21 A. Yes. 22 Q. Have you explored the notion of 23 whether or not the DEP would permit you to devote 24 as a purpose of that easement access to a 25 commercial struction? 72 1 A. I have not because we have not 2 determined how the access is going to be made to 3 the site at this time. 4 Q. There's only two accesses currently 5 available, are there not, one from the front of 6 the property and the other from the rear of the 7 property? Is there not an access drive that 8 access off of McCartney? 9 A. Yes, McCarter. 10 Q. McCarter? 11 A. Yeah, a public access, yes. 12 Q. Right. And that's a public street 13 with houses on it, McCarter? 14 A. McCarter is, yes. 15 Q. As indicated on the aerial, there's 16 a bunch of private residences back there? 17 A. That's correct. 18 MR. STILWELL: That's all I have. 19 CHAIRMAN MAHER: No further 20 questions of Mr. Gilmour? 21 Yes, members of the audience, any 22 questions for Mr. Gilmour? 23 Why don't we start here and then 24 yourself in the back and then we'll follow suit 25 after that. 73 1 Please step forward, state your 2 name, clearly spell your name. 3 CROSS-EXAMINATION OF THOMAS J. GILMOUR 4 BY THE PUBLIC: 5 MR. BENNETT: My name is Dery 6 Bennett, D-e-r-y B-E-N-N-E-T-T; 134 Lexington 7 Avenue. 8 I have a couple of lawyer questions. 9 Are you the lawyer for the Borough? 10 MR. IRENE: No, ma'am -- no, sir. 11 No, sir, but I'm very tired now. 12 No, I'm the Board attorney, sir. 13 MR. BENNETT: You're a lawyer? 14 MR. IRENE: Yes, sir, I am. 15 MR. BENNETT: And you're paid by the 16 Borough? 17 MR. IRENE: I am paid by my 18 appearance. I bill the escrows for my services 19 except for my monthly appearance fee for the 20 regularly scheduled meetings which are paid by 21 the Borough. 22 Okay, did I answer your question? 23 MR. BENNETT: Yes. 24 MR. IRENE: Good. 25 MR. BENNETT: And are you paid by 74 1 the Borough? 2 MR. LIEBERMAN: I volunteer my time. 3 No, I'm paid by the Borough, yes. 4 MR. BENNETT: Do you know how much 5 you spent so far on the effort to get the Green 6 Acres? 7 MR. LIEBERMAN: I have no idea. 8 We'd have to look at the records. This has been 9 going on for a year. 10 MR. BENNETT: On the appeal, do you 11 appeal in the Appellate Division in this if you 12 want an appeal? 13 MR. LIEBERMAN: Well, first of all, 14 I don't know if I'm going to be doing anything. 15 And if there was an appeal, we'd have to 16 determine what the right venue is, but it very 17 well could be the Appellate Division. 18 MR. BENNETT: And you would appeal 19 the Green Acres decision in that letter if they 20 deny? 21 MR. LIEBERMAN: If there was an 22 appeal -- and again, I don't know if I'm going to 23 have anything to do with it, but if someone did 24 that, it would likely be that -- it would be an 25 attempt to reverse the Green Acre decision, 75 1 that's right. 2 MR. BENNETT: If the Green Acres 3 decision were reversed what is the next step and 4 they approve it? 5 MR. LIEBERMAN: Well, you know, it's 6 very hard to answer that. It really depends on 7 the reason why it's denied and the strength of 8 the position. And there are always a lot of -- 9 in these kinds of things there are always several 10 avenues that are available. 11 MR. BENNETT: Is that before it goes 12 to the State House Commission because all 13 diversions then end up? 14 MR. LIEBERMAN: At some point in 15 time it will go to the State House Commission. I 16 believe that it would go to the State House 17 Commission before an appeal, actually, but I'm 18 not positive of when that happens. 19 MR. BENNETT: Can you appeal a State 20 House Commission decision? 21 MR. LIEBERMAN: That's something 22 that I don't know, I'd have to research. 23 MR. BENNETT: Do you know how much 24 it might cost to go through that process of 25 appealing the Green Acres denial or the State 76 1 House Commission's denial? 2 MR. LIEBERMAN: I have no idea. I 3 have no idea. 4 MR. BENNETT: Would that be on the 5 Borough budget or would that be extra? 6 MR. LIEBERMAN: I have no idea what 7 the Borough's budget is and I don't know what 8 their line items are. 9 MR. BENNETT: I guess I can't ask 10 questions of -- 11 Can I ask that same question of you? 12 MR. IRENE: I'm sorry, I didn't hear 13 you. 14 MR. BENNETT: My question was, if 15 this goes through the appeal process, is that 16 handled by the Borough attorney? 17 MR. IRENE: Yes, sir. It would not 18 be handled by me. It would be handled either by 19 Mr. Lieberman as a special counsel or it would be 20 handled by the Borough attorney as I understand 21 that. But those are the type of questions that 22 presumably in terms of cost and who would do it 23 that you'd want to address to the City Council, 24 the councilman. We don't have any control over 25 that obviously. Okay? Thank you. 77 1 MR. GILMOUR: Can I just clarify 2 something? 3 MR. IRENE: Sure. 4 MR. GILMOUR: First of all, 5 Mr. Lieberman has only been retained to represent 6 us in front of the Zoning Board? 7 MR. IRENE: Right. 8 MR. GILMOUR: So we have not made 9 any decision whether we're going to appeal, how 10 we're going to appeal, who's going to represent 11 us at this time. 12 CHAIRMAN MAHER: The gentleman, yes, 13 please step forward. State your name for the 14 record. 15 MR. DEBREE: Sure. Derek Debree, 16 D-e-r-e-k D-e-b-r-e-e; 35 McCarter Avenue. 17 Couple of questions for you, Tom. 18 The two comments you made about the 19 Nativity site were that the environmental impact 20 was a grave concern of Council and the feelings 21 of the neighbors in that area, the local 22 community in general. And I just want -- two 23 questions, do you really foresee a lesser 24 environmental impact on that United Methodist 25 Church site and do you foresee less public 78 1 consternation from the neighbors on McCarter 2 Avenue on that site? 3 MR. GILMOUR: That's a little 4 difficult for me to answer at this time. I think 5 that there will be. I mean, we had a public 6 meeting. There were neighbors from that area who 7 were in opposition to the site at Methodist 8 Church. There will be some environmental impact. 9 I can't tell you that right now until the 10 engineer tells us specifically what we're looking 11 at as far as a site and how we're going to access 12 that site. 13 But I can tell you that I think the 14 Borough's been very open. If we do come to some 15 type of an agreement, we will have some type of 16 town meeting again before any finalization is 17 made of any agreement with Methodist Church. 18 MR. DEBREE: I know that for the 19 Nativity site you went so far as to count the 20 trees that would be disturbed at that particular 21 location. Do you anticipate doing the same sort 22 of thing for the United Methodist Church 23 location? 24 MR. GILMOUR: Yes, I think we will. 25 MR. DEBREE: Okay, thank you. 79 1 CHAIRMAN MAHER: Any other members 2 of the audience? I think I saw someone's hand -- 3 yes, step forward, please. 4 State you name, spell your name for 5 the record, please. 6 MR. TARTARONE: Stuart Tartarone, 7 T-a-r-t-a-r-o-n-e; 47 Gentry Drive. 8 Councilman Gilmour, I just have one 9 question regarding an ordinance I believe that 10 was passed by the Borough either last year or 11 earlier this year. Correct me if I'm wrong, but 12 I thought an ordinance was passed which made 13 leased property could be considered PB property. 14 MR. GILMOUR: I believe that's true. 15 However, I would really -- at this point, I'm as 16 confused as anybody else, so I would have to 17 refer to our Borough attorney to render a 18 decision on that. 19 MR. IRENE: The question is whether 20 leased property -- 21 MR. TARTARONE: Yes. 22 MR. IRENE: -- can be considered PB? 23 Isn't the issue is whether the property is in the 24 PB zone regardless of how it's owned or leased? 25 MR. TARTARONE: I believe -- 80 1 MR. IRENE: Normally, when they do a 2 zone, they draw a zoning map and they say, Okay, 3 this is the PB zone, whatever property is in 4 there is within the PB zone. Whether I own it, 5 whether you lease it from me or whatever, it's 6 either within the zone or not. Was that your 7 question? 8 MR. TARTARONE: I understand. Well, 9 my question is -- and we should maybe defer to 10 the record, but I believe -- 11 MR. IRENE: Okay. 12 MR. TARTARONE: -- there was an 13 ordinance passed by the Borough along the lines I 14 stated. Maybe rather than -- 15 MR. IRENE: Okay. 16 MR. TARTARONE: -- discuss it here, 17 maybe that should be introduced as evidence what 18 that ordinance is. 19 MR. IRENE: You wouldn't happen 20 to -- 21 MR. TARTARONE: I don't happen to 22 have it with me right now. 23 MR. IRENE: I'm just trying to 24 follow your question because -- 25 MR. TARTARONE: And I'll work to 81 1 locate that -- 2 MR. IRENE: Okay. 3 MR. TARTARONE: -- but I know an 4 ordinance of that sort was passed by the Borough 5 Council within the last year. 6 MR. IRENE: That property leased 7 outside of the PB zone can be deemed to be part 8 of the PB zone? 9 MR. TARTARONE: Yes. You know, I 10 will defer to what the ordinance says, but it was 11 something along those lines which I think should 12 be considered as part of the public record. 13 MR. IRENE: Thank you. 14 CHAIRMAN MAHER: Any other questions 15 for Mr. Gilmour from the audience? 16 Looks like no one. 17 MR. GILMOUR: I got off light. 18 MR. LIEBERMAN: Thank you very much. 19 CHAIRMAN MAHER: If there are no 20 more witnesses, Mr. Lieberman? 21 MR. IRENE: Mr. Lieberman, did you 22 hear the Chairman? 23 CHAIRMAN MAHER: There's no more 24 testimony or witnesses or experts on your behalf 25 or anything? 82 1 MR. LIEBERMAN: At this time there 2 isn't. It's my understanding that the Board 3 isn't going to be voting. I know that there are 4 individuals that wanted to provide testimony 5 about flooding that couldn't come tonight, and so 6 I would envision that at the next meeting when 7 there's a vote they will be here. 8 MR. IRENE: But just so we're clear, 9 what I assume is going to happen, once -- once 10 you presented all your witnesses, then I assume 11 the Board's going to be open it up to any other 12 interested parties who are not represented by 13 counsel. So the question is, are you done with 14 your presentation or do you have other witnesses? 15 MR. LIEBERMAN: At this time we're 16 done with our presentation. 17 MR. IRENE: Are you going to not be 18 done in enough -- what I'm asking you -- 19 MR. LIEBERMAN: Let me tell you -- 20 let me tell you why I'm being equivocal just so 21 I'm clear -- 22 MR. IRENE: Yeah, and I'm not trying 23 to give you a hard time -- 24 MR. LIEBERMAN: No, I understand 25 that. 83 1 MR. IRENE: I just want to know if 2 you're asking to have your portion carried 3 because one of your witnesses isn't here? That's 4 all I want to know. 5 MR. LIEBERMAN: That is what I'm -- 6 and I'll tell you why. 7 MR. IRENE: Okay. 8 MR. LIEBERMAN: It's because there 9 is -- the governing body has retained or is in 10 the process or retaining the expert to negotiate 11 with the church. And I think that by the next 12 meeting there's a chance that we'll want to put 13 on that testimony and that's why I'm just a 14 little equivocal right now. 15 MR. IRENE: Okay. So what -- as I 16 understand it what you're asking the Board is to 17 essentially take out of order any other 18 interested parties that may want to testify 19 tonight and see where we are. And if we're not 20 done, then obviously you can present who you 21 want, and if we are done, then I guess we'll have 22 to deal with it. 23 Mr. Stilwell is kind of making his 24 way up to the podium here. 25 MR. STILWELL: No, that would 84 1 be -- your comments just now is that you're going 2 to move on with the members of the public. 3 MR. IRENE: I'm asking if that's -- 4 just so we're clear. 5 MR. STILWELL: That would be my 6 understanding. If they finish and it's 7 Mr. Lieberman's turn and there's nobody to put 8 on, I obviously would be making a motion that the 9 matter be closed subject to summations and a 10 vote. 11 MR. IRENE: So why don't we see how 12 far we get then at this point, but we understand 13 what Mr. Lieberman is asking for; of course, he 14 reserved that right. Mr. Stilwell has reserved 15 his right to object when we get to that point. 16 So I would suggest, Mr. Chairman, we open it up 17 to any other interested parties who are not 18 represented by counsel who would like -- 19 We asked earlier on if there were 20 any other counsel and there was no response. 21 CHAIRMAN MAHER: No response. 22 MR. IRENE: Okay. And then we'll 23 see where we are as we get a little bit further 24 into it if that's acceptable to the Board. 25 CHAIRMAN MAHER: I think at this 85 1 point that's the direction we'll move. 2 So at this point we'll open it up to 3 the general public. Please raise your hand, 4 please. Step forward. This is obviously part of 5 the general public that is not represented by 6 counsel and wants to come up and speak on behalf 7 of the application. 8 MR. IRENE: Or against, any comments 9 that are against. We'll take sworn testimony one 10 way or the other. Anybody would like to make a 11 statement or comment to the application? 12 CHAIRMAN MAHER: I know you were just 13 up here, sir, but please for the record state 14 your name and spell your name. 15 SWORN STATEMENT BY THE PUBLIC: 16 MR. TARTARONE: My name is Stuart 17 Tartarone, T-a-r-t-a-r-o-n-e. My address 47 18 Gentry Drive. 19 MR. IRENE: Mr. Tartarone, I'm 20 sorry, I don't mean to interrupt you. 21 MR. TARTARONE: That's all right. 22 MR. IRENE: We may have sworn you 23 are in previously, but we're going to swear you 24 in just so we don't forget. 25 MR. TARTARONE: I understand. 86 1 MR. IRENE: Thank you. 2 S T U A R T T A R T A R O N E, 47 Gentry Drive, 3 Fair Haven, New Jersey, having been first duly 4 sworn, testifies as follows: 5 MR. TARTARONE: I have two questions 6 first. I believe Dr. Eisenstein was retained on 7 behalf of the Board to offer his view about the 8 issues concerning R.F.. will there be a report 9 issued which will be available for the public to 10 review on that matter? 11 MR. IRENE: My understanding was 12 Dr. Eisenstein was just going to deliver his 13 report, if you will, from the bench on the Board, 14 but we can ask Dr. Eisenstein. 15 DR. EISENSTEIN: That is correct. 16 MR. TARTARONE: I'm confused what 17 that means. 18 MR. IRENE: He's going to comment 19 from up here -- 20 MR. TARTARONE: Okay. 21 MR. IRENE: -- based upon his review 22 of the exhibits and his consideration of the 23 testimony. 24 MR. TARTARONE: And when will those 25 comments take place? 87 1 MR. IRENE: I'm assuming we're going 2 to do Dr. Eisenstein last? 3 DR. EISENSTEIN: As soon as the 4 public comment is done. 5 MR. IRENE: Give everybody an 6 opportunity to speak tonight if we can. 7 MR. TARTARONE: And will the public 8 then have a chance to question Dr. Eisenstein 9 after he speaks? 10 MR. IRENE: I don't know, it 11 depends. I don't know that the Board would 12 necessarily preclude it, but I think what 13 Dr. Eisenstein is going to do is review what 14 the -- the exhibits that were presented by the 15 various witnesses and then just essentially give 16 a summary to the Board. 17 MR. TARTARONE: Okay. So -- 18 DR. EISENSTEIN: In general, I will 19 be offering an opinion. It probably would be 20 fair to open it to questions, anyone that would 21 want to question me, including counsel either 22 way. So I think that would be fair. 23 MR. IRENE: And I would suggest here 24 that all that will occur before the meeting is 25 closed, before we get to the vote. So -- 88 1 MR. TARTARONE: Okay. 2 MR. IRENE: Does that answer your 3 question? 4 MR. TARTARONE: That answers one 5 question. 6 MR. IRENE: Yeah, we also have our 7 engineer present, by the way, too. 8 MR. TARTARONE: Thank you. 9 MR. IRENE: And our planner, yes. 10 MR. TARTARONE: The second question 11 I have, I thought -- I might be wrong, but I 12 thought at the last hearing the applicant was 13 asked to present a copy of the contract for the 14 understanding agreement it had reached with the 15 Church of that Nativity and to have expunged from 16 it financial information. 17 MR. IRENE: I don't recall that -- 18 MR. TARTARONE: Because there was an 19 issue regarding terms and terms of when -- you 20 know, how and when under what conditions the 21 structure would be removed. And I thought at 22 that time -- 23 MR. IRENE: My recollection is -- 24 we'll let the Board respond, Dr. Eisenstein, 25 Counsel and -- but my recollection, I thought 89 1 Dr. Eisenstein had suggested that if in fact the 2 application's granted, that one of the conditions 3 that would be added would be that there would be 4 ongoing reporting and that there would be 5 take-down provisions within a certain timeframe. 6 Is that -- 7 DR. EISENSTEIN: That's correct. 8 That's what I usually do. It's usually a report 9 every year. And following a six- or nine-month 10 period of inactivity the Board's choice that a 11 take-down provision would be instituted. 12 Furthermore, to be even more specific, the 13 take-down would be at least four feet below grade 14 level, that's what I usually suggest at every 15 meeting. 16 MR. TARTARONE: I understand. I 17 could be mistaken. Thank you. 18 First of all, I'd like to thank the 19 members of the Zoning Board for these many months 20 that you've endured this application. I know 21 it's been a struggle and I appreciate you, you 22 know, going through this effort, and I know 23 you'll get involved with a lot of issues but -- 24 which effect many of the residents of this 25 Borough, but I think this is -- not to minimize 90 1 all those other hundreds of applications that you 2 deal with each month -- I think this is a much 3 different type of application because this 4 application doesn't effect a dwelling, it doesn't 5 effect just the neighbors immediately adjacent to 6 that dwelling of that pile of land; which, again, 7 not that I've been on past Zoning Board meetings, 8 but I assume would be the bulk of the stuff that 9 you deal with. 10 This application effects many, many 11 residents and it effects it in many ways. It 12 effects the residents of the area of Gentry 13 Drive, Dartmouth Avenue, Hance Road, Ridge Road, 14 Oxford and Cambridge. So it effects -- as well 15 as people who live -- who are not part of this 16 Borough, but who live nearby across the street in 17 Rumson. 18 And this -- you know, your decision 19 here has many, many influences that has the -- 20 you know, depending on how you come out on this, 21 there is significant visual scarring that can 22 take place of the neighborhoods here. This is 23 something that I know myself and I speak -- I am 24 involved with a residents' group called "The 25 Residents of the Future of Fair Haven." I speak 91 1 on behalf of many, many of the residents in that 2 location who've been here at these meetings. 3 This application has been going on for many 4 months. Unfortunately, they couldn't be all here 5 this evening, but I speak on behalf of all those 6 residents. 7 MR. IRENE: Mr. Tartarone, I'm 8 sorry, I don't mean to interrupt you, but you 9 really can't speak on behalf of somebody else 10 because that's hearsay, but feel free to tell us 11 all the comments that you want to tell us. 12 MR. TARTARONE: I appreciate that 13 and I understand that. 14 MR. IRENE: I apologize for the 15 interruption. 16 MR. TARTARONE: That's all right. 17 So this particular application can 18 deal with visual scarring, scarring of the 19 neighborhood, the impact of it that I might -- 20 you know, I'll speak for myself here, that I 21 personally need to deal with and see that will be 22 visible to myself every day I drive down that 23 street where I live. And the scarring I think, 24 you know, is very, very significant. 25 Secondly, it can deal with -- I'll 92 1 get to this later on -- it can significantly 2 impact the property values of the people who live 3 in this neighborhood. And indirectly if it 4 doesn't impact the property values, it will 5 impact the tax base because it impacts the 6 property values and now -- it's going to be 7 hearsay, but speaking on behalf of myself and 8 other residents, if that's the case, we will go 9 back and ask for reassessments of our property 10 because of the impact on the price values that 11 the cell tower could cause in our neighborhood. 12 And thirdly, it could and our 13 biggest concern is, you know, the impact on our 14 health of having a cell tower as close to our 15 residents, close to -- in fact, it will be within 16 300 to 350 feet of several homes which exist on 17 Dartmouth Avenue. And in those homes, you know, 18 the closest homes nearby there are between 10 and 19 15 children who this can, you know, the cell 20 tower and the environmental effects that it could 21 deliver, can, you know, significantly impact. 22 And it's because of those issues -- 23 and people can say what they can about this and 24 say, Well, the government says it's fine. But 25 the government has been misleading in the past. 93 1 The government has been misleading about the 2 effects of smoking, about the effects of asbestos 3 and as recently as 9/11 when they said the air in 4 New York was fine and we're just dealing with the 5 lives of the people we're losing that were 6 impacted by that. So a significant impact can 7 occur because of that. 8 And if we go back a point and 9 Verizon and Omnipoint had presented testimony 10 over the many last several months, and the only 11 thing I can say about that testimony is that 12 there are many misleading and deceptive, you 13 know, pieces of information that were conveyed in 14 their testimony. I intend to go through this 15 point by point in trying to illustrate that 16 deceptive testimony. 17 Now, first they contended that the 18 radiation effects of a cell tower are no more 19 significant or less significant than a 20 refrigerator. Well, the cell tower has at least 21 one radio on it and it's called the "setup 22 channel." And that channel is broadcast 24 hours 23 a day, 7 days a week and it's always on. And 24 when radios -- and radios are turned on to 25 initiate and to transmit cellular calls, those 94 1 radios are on. Now we don't know what -- no 2 one's spoken to what the maximum capacity of 3 radios they plan. But for each radio, I believe 4 there's 10 watts of power that generates during 5 the course of these calls. 6 Following that, Verizon presented 7 testimony from their engineers in the 8 neighborhood -- excuse me, their engineer and we 9 had people in the neighborhood who unfortunately 10 could not be here this evening who have had 11 significant flooding effects because of where 12 they live on Dartmouth Avenue. And, you know, 13 those significant, you know, effects have really 14 destroyed, you know, have had -- you know, bills 15 add up for people who live in the area there. 16 And those people would like to appear at next 17 meeting to, you know, speak to the impact it's 18 had on their homes in the area. 19 And I have here pictures that I'd 20 like to introduce. These are pictures from, I 21 believe, it's on Dartmouth Avenue. I don't have 22 the exact residence, I'll get it for you. 23 MR. IRENE: Do me a favor, 24 Mr. Tartarone, my recollection is that we have 25 previously marked a photograph that you wanted to 95 1 introduce last time. We marked that as OST-1. 2 MR. TARTARONE: Yes. 3 MR. IRENE: So if you would do my a 4 favor, flip those over and mark it from OST-2 5 onto, in sequence, to whatever the last one is. 6 MR. TARTARONE: Okay. 7 MR. IRENE: And then you can tell 8 us -- once you're done, you can tell us what each 9 one is, what it depicts, and then you can hand 10 them on up to the Board. And we'll let 11 Mr. Stilwell take a look before you send them up 12 to us. We'll let Mr. Lieberman take a look if he 13 would like to take a look, also. 14 MR. STILWELL: Could we ask who took 15 the pictures? 16 MR. IRENE: Sure. Go ahead. 17 MR. TARTARONE: Okay. These 18 pictures were taken by Ms. Noelle Tonamen (pho), 19 T-o-n-n-e-n. 20 MR. STILWELL: Is that person here 21 this evening. 22 MR. TARTARONE: She could not be 23 here this evening. 24 MR. STILWELL: Then I -- 25 MR. IRENE: Let me ask you this -- 96 1 MR. STILWELL: -- object to them 2 being introduce into evidence. 3 MR. IRENE: I don't know if he has 4 to take them. I guess the question is can he 5 testify that they accurately depict what they 6 purport to depict. 7 What are depicted in those 8 photographs? 9 MR. TARTARONE: The pictures 10 represent flooding conditions at Ms. Tonamen's 11 (pho) home on Dartmouth Avenue. 12 MR. IRENE: Did you see the flooding 13 conditions when they existed? 14 MR. TARTARONE: I didn't personally 15 see the flooding conditions. 16 MR. IRENE: I think we're going to 17 have a little bit of a problem. 18 MR. STILWELL: I not only object to 19 the introduction of the photographs, I also 20 object to the notion that our proposed facility 21 in any way is going to cause any of this 22 flooding. It's not only been our engineer's 23 testimony that it doesn't, but it's been the 24 Board's engineer's testimony that it doesn't. 25 MR. IRENE: I understand. 97 1 MR. STILWELL: And I don't believe 2 it's relevant. 3 MR. IRENE: So what I would 4 suggest -- Mr. Stilwell's you raised two issues. 5 The first issue is whether or not the Board 6 should accept them from Mr. Tartarone, whether or 7 not they've been qualified to come in. And the 8 last issue is what weight to be to them if 9 they're accepted. 10 And I think the difficulty, 11 Mr. Tartarone, is that you don't know if they're 12 accurate or not because you never saw what's 13 depicted in the photograph. So why don't we hold 14 them for now -- 15 MR. TARTARONE: I understand. 16 MR. IRENE: -- and we'll see where 17 we go. We'll see if this continues next meeting 18 and if Ms. Tonamen (pho) comes, then it might 19 solve the issue. 20 MR. LIEBERMAN: Can I just ask a 21 question? 22 MR. IRENE: Sure. 23 MR. LIEBERMAN: Did you not see it 24 on the day the pictures were taken or have you 25 ever seen the flooding? In other words, is 98 1 what -- have you ever seen flooding there or you 2 just -- 3 MR. TARTARONE: I have not seen 4 flooding in this particular home. I've seen -- 5 MR. IRENE: That pretty well kills 6 it right there. 7 MR. TARTARONE: Well, again, I want 8 to be honest. 9 MR. IRENE: And we appreciate you 10 being candor and stuff. And you can understand 11 why -- 12 MR. TARTARONE: I understand. 13 MR. IRENE: You really can't tell 14 if -- 15 MR. TARTARONE: Yes, that's very 16 true. 17 MR. IRENE: It's not that anyone's 18 questioning -- 19 MR. TARTARONE: Yes. 20 MR. IRENE: -- Mrs. Tonamen (pho), 21 it's just that you need to be able to tell us 22 that what those photographs depict -- accurately 23 depicts what's purported to be shown there. 24 MR. TARTARONE: That's very true. 25 MR. IRENE: Okay? 99 1 MR. TARTARONE: I understand. 2 MR. IRENE: All right. So let's set 3 those aside for now and let's get back to your 4 testimony. 5 MR. TARTARONE: Okay. Let me deal 6 with the issues of the testimony regarding radio 7 frequency within the Borough of Fair Haven. Let 8 me also say that, for the record, that I was a 9 member of the Bell Laboratories team between 1972 10 and 1982 that designed the technology, did the 11 exploratory work and come up with the first 12 cellular system in Chicago in the 1984 timeframe. 13 I personally managed, as well as an 14 individual contributor to define several of the 15 system parameters and switching control 16 algorithms and also represented the then Bell 17 System before the IEEE standards boards which 18 established at that time the nationwide standards 19 for cellular systems. 20 So I think I have some background in 21 this being a part of that first team which 22 developed the technology for today's cellular 23 systems. With that, I believe the evidence that 24 was presented one of the -- you know, regarding 25 the R.F. coverage. 100 1 The R.F. coverage, the claim was 2 that cellular service in Fair Haven it's -- 3 cellular service is 90 percent unreliable or 4 unreliable in 90 percent the Borough of Fair 5 Haven. Those of us who live in this Borough who 6 have used cellular service know that's not a 7 fact. 8 Now it's not a fact because we can 9 use it. Yes, there are dead spots, there's spots 10 that it doesn't work, but I believe the 11 90 percent statement and the basis by which it 12 was determined is totally unfounded. There is no 13 data. I asked several times. And each time I 14 was asked -- I asked for data, you know, have 15 there been any complaints filed before the FCC 16 and that's a standard practice. There's no 17 complaints, at least that the applicant reported 18 that was filed before the FCC regarding allerger 19 (pho) problems within the Borough of Fair Haven. 20 I asked for the customer 21 satisfaction studies, another standard technique 22 that companies use to understand if there's a 23 problem. There was no report for customer 24 satisfaction studies. 25 As part of my background in cellular 101 1 service, one of the things we did to validate 2 cellular systems and to establish parameters for 3 cellular systems. We looked at dropped call 4 rates, how many times. We actually had 5 simulators which did this. We had vehicles which 6 drove around town which attempted to make calls 7 and we logged how many attempts that calls did 8 not go through. There was no data presented to 9 how many failed calls do we have in the Borough 10 of Fair Haven on some average or typical basis. 11 I also asked -- well, another thing 12 that happens with cellular services, while you're 13 in the middle of a call the call gets dropped. 14 That's data that I know which is kept in 15 switching machines because I personally specified 16 certain of those algorithms back in the '70s and 17 I would I assume, I don't know for a fact, but 18 would assume they're carried in systems today. 19 There was no records presented or no data 20 presented on how many calls are dropped within 21 the Borough of Fair Haven. And there are other 22 ways of gathering this data, but that data is 23 certainly stored in the switching machines. 24 So there was no data presented 25 regarding user parameters regarding cellular 102 1 system, cellular service being unreliable or 2 unreliable to the extent of a 90 percent level 3 within the Borough of Fair Haven. 4 When I asked on what basis this, you 5 know, this R.F. data was established, mind you 6 there are no rules, there are no standards that 7 the FCC establishes for cellular service other 8 than saying that service has to be above a level 9 of mediocrity. 10 And secondly, the other, they do not 11 claim that there needs to be guaranteed service 12 for out-of-the-vehicle or in-building service. 13 And when I asked the standards by which data was 14 presented by the applicant, it was based upon 15 their own standards. It was not based upon 16 standards by the FCC or any other governmental 17 agency. 18 Thirdly, we had a presentation from 19 a real estate appraiser regarding -- regarding 20 the Borough of Rumson and the impact of the cell 21 tower that was installed in the Borough of 22 Rumson. Mind you, the location of the cell tower 23 in the Borough of Rumson is near a 24 department -- near or on or in a Department of 25 Public Works facility, which I contend is an area 103 1 where probably property values are recessed to 2 begin with. 3 Secondly, the witness presented 4 testimony where they used some figure of merit 5 regarding paired real estate sales; that is, 6 sales on homes before the cell tower went in and 7 comparing it with sales of that same home after 8 that cell tower was put in. And they looked at 9 the average appreciation, they used some metric 10 for calculating the average appreciation in home 11 prices and used that to draw conclusions 12 regarding impact for the cell tower. Mind you, 13 there was -- and then I questioned this of the 14 witness and I believe it's part of the public 15 record of these hearings -- there was only one 16 home within a 1,000 feet of the cell tower. So I 17 question the validity of the data if only one 18 home was within a 1,000 feet of the cell tower. 19 And there are witnesses who were 20 unable to be here this evening. And if this 21 hearing does go further, who are licensed real 22 estate, you know, agents and they would contend 23 otherwise regarding, you know, the impact on 24 property values. And we would like to have those 25 people appear if we are able to at a future 104 1 hearing. We weren't aware this evening that we 2 would come this far with the hearing. 3 Next we have a planner present 4 testimony. And a good deal of his testimony was 5 based upon this crane which was brought in here, 6 to the Borough of Fair Haven, I believe during 7 the month of July last year. Now, we know by 8 testimony of the part of the applicant that that 9 crane was not in the proper place the cell tower 10 would be. We understood that when that crane was 11 put in place. We understood the reason because 12 they would have had to remove, you know, some 13 significant number of trees to properly place 14 that crane. But the applicant then went and took 15 nine pictures of the surrounding area. 16 Now, when I questioned the witness 17 at the time as to why those pictures were taken, 18 the contention was it was to show -- demonstrate 19 visual impact. In particular, the one picture at 20 the last hearing that I pointed out, which was 21 the home in which -- which fronts where the cell 22 tower would be at 326 Dartmouth Avenue, in the 23 picture that was taken, there was no cell tower, 24 there was no crane. And if you remember 25 correctly, in addition to the crane being there, 105 1 the applicant had the crane removed using a 2 graphics program and replaced by a piece of what 3 I would characterize as clip art which would be a 4 cell tower put in its place. In back -- in front 5 of the location where the cell tower would be, 6 there was no appearance of a cell tower. 7 And I understand for the obvious 8 reason that that wasn't where the crane was, but 9 the applicant well could have shown, demonstrated 10 visual impact in terms of using this program and 11 to have placed the cell tower behind the home 12 which was where it was supposed to be. And 13 that's why I introduced, which is on the record 14 here, OST -- a piece of evidence called OST-1 15 which shows what we believe would be the impact 16 of the cell tower. And we believe that impact 17 would be significant. 18 Then the witness went on to discuss 19 the Sica balancing criteria. Now, from my 20 understand that since -- I believe there are 21 three variances which are at play before the 22 Zoning Board. One of which is a so-called 23 D variance and that D variance requires you to go 24 through the Sica balancing test and you have to 25 consider what the public benefit is and you have 106 1 to contrast that public benefit with the positive 2 and negative impacts of putting the cell tower or 3 this particular structure in place. And it's not 4 clear to me that there was sufficient evidence 5 demonstrated by the applicant to unequivocally 6 say that the Sica balancing test was satisfied. 7 Now, first of all, the public good 8 allegedly is that there's -- what would happen 9 here is, is there would be another cellular 10 communications tower within the Borough of Fair 11 Haven. There are other alternatives to cellular 12 communications. You know, since 1876, the 13 invention -- Alexander Graham Bell produced the 14 wire line telephone. And the wire line telephone 15 exists. It's a use. It can be used. I 16 believe -- I would contend in every single home 17 in this Borough there is a wire line telephone. 18 And the originally -- you know, the reasons that 19 cellular systems were put in place was to deal 20 with business needs. And it's not clear to me 21 that sufficient evidence just by the presence of 22 another telecommunication tower in town is 23 granted. 24 One of the examples used was by the 25 R.F. engineer who testified by Verizon that he 107 1 couldn't make or receive calls within the Nauvoo 2 Grill. I contend that's probably a public 3 benefit not being interrupted by your meals, you 4 know, by having calls come in. But to me, not 5 being able to make or place calls within a 6 restaurant is not a demonstration of sufficient 7 public need. 8 Next, there's a very much a 9 misconception on having a cell tower in place. 10 You know, there's a perception on the part of the 11 public that when power goes out, as we witnessed 12 within the Borough of Fair Haven on Valentine's' 13 Day, the power went out and there's a perception 14 that, well, power goes out as well as telephone 15 lines go out. If telephone lines go out, I have 16 my cell phone that I can use. 17 Bear in mind that there's no 18 mysticism about a cell tower. A cell tower needs 19 to interconnect with the wire line telephone 20 network. And the way it's proposed here, though, 21 interconnect with the wire line telephone 22 network, is from that shed which would be on the 23 property of the Church of the Nativity there 24 would be wires which would leave that, go to a 25 telephone pole, hooked onto the copper, the 108 1 cables -- or I should say the copper wires would 2 then take it back to the central office in Red 3 Bank. 4 And we know anywhere along those 5 runs that those wires could go down or in the 6 final run between the cell tower -- between the 7 telephone pole that would be on Ridge Road and 8 the shed, that could go down. If those wires go 9 down, that cell tower is no longer functional. 10 So, again, while there can be some 11 backup provided by a cell tower, it's not a 12 miracle. It's not something the mystically can 13 provide signals within the wire line telephone 14 network. It has to be connected into the wire 15 line telephone network. 16 So I question the public good versus 17 the balancing in terms of the negative impact 18 that would apply to those residents who live in 19 the immediate area in terms of the visual impact, 20 the issue with property values, as well as the 21 potential health effects of this. And as we go 22 through this and go through, there is an 23 ordinance that we just spoke about, an ordinance 24 on the books within the Borough of Fair Haven. 25 The ordinance says that cell towers can only be 109 1 put in place on PB property, and the Church of 2 Nativity site is not such a site and that's why 3 this hearing is before the Board. 4 But I think -- and there's some 5 contention as to what would happen if this thing 6 would, you know, would be designed by this Board 7 and go to the courts. I think it's also a matter 8 of record that there have been a number of towns 9 which have denied cell tower application for a 10 variety of reasons, including towns as close as 11 Middletown and towns as far away in the state of 12 New Jersey as Ho-Ho-Kus and a number of other 13 towns. And when those cases were brought through 14 the courts, eventually what the Zoning Board or 15 be it the Council, the motion to deny the 16 application did prevail. 17 And I realize there are a number of 18 issues that you need to deal with. I just want 19 you -- and I thank you for the many months that 20 you have dealt with these issues, but I just want 21 you to be aware that speaking as one person here 22 and speaking as a resident of this Borough and 23 speaking as someone who would be significantly 24 impacted by this, I don't see the balancing test 25 taking place. I don't see the public good 110 1 outweighed by the existence of this. The 2 existence of it in terms of how it will scar our 3 neighborhood, affect our property values and 4 potentially impact our health. 5 Thank you. 6 CHAIRMAN MAHER: Thank you. 7 MR. IRENE: Anybody have any 8 questions for Mr. Tartarone? Counsel? 9 DR. EISENSTEIN: He was making a 10 statement. Do you question the -- 11 MR. IRENE: Well, they have a right 12 to cross him if they want. 13 I assume Mr. Lieberman doesn't have 14 any questions. 15 Mr. Stilwell, do you have any 16 questions about -- 17 MR. STILWELL: No. 18 MR. IRENE: Okay. Let the record 19 reflect none. 20 I did not want to interrupt 21 Mr. Tartarone and I assume that counsel in their 22 summations are going to address this issue and I 23 assume that Dr. Eisenstein and also Mr. Pete as 24 our planner, but so we don't lose sight of the 25 fact, my understanding of the case law is, the 111 1 health effects of radio frequency emissions are 2 off the table in consideration of this Board once 3 the applicant demonstrates that they are licensed 4 by the FCC. I simply tell you that. 5 DR. EISENSTEIN: I'll discuss that. 6 MR. IRENE: Okay. Dr. Eisenstein 7 will address that further. 8 CHAIRMAN MAHER: At this point in 9 time I have roughly -- let's go ten after nine, 10 take a five-minute break to allow the 11 stenographer to rest her fingers. We'll start at 12 9:15 again. 13 (Whereupon, a recess was taken. The 14 time is 9:10 p.m.) 15 (Back on the record. The time is 16 9:22 p.m.) 17 CHAIRMAN MAHER: Okay. Let the 18 record reflect we're going back into session from 19 our ten-minute break. 20 If we could do a quick roll call 21 just for the record about who's returned. 22 MS. MERCADANTE: Peter Maher? 23 CHAIRMAN MAHER: Here. 24 MS. MERCADANTE: Marianne Ficarra? 25 MS. FICARRA: Here. 112 1 MS. MERCADANTE: Sonia Reevey? 2 MS. REEVEY: Here. 3 MS. MERCADANTE: Suzanne Gottuso? 4 MS. GOTTUSO: Here. 5 MS. MERCADANTE: Michael Irene? 6 MR. IRENE: Here. 7 CHAIRMAN MAHER: The two experts? 8 MR. PETERS: Here. 9 MR. IRENE: Dr. Eisenstein and 10 Mr. Peters. 11 DR. EISENSTEIN: Correct. 12 CHAIRMAN MAHER: Thank you. 13 MR. IRENE: Yes, yes. 14 CHAIRMAN MAHER: All right. At this 15 point in time we're still in the area of audience 16 commentation. If there's another member of the 17 audience that wants to came forward to make 18 comments about the application before us, please 19 do so. Raise your hand, step forward, state your 20 name, spell your name for the record. 21 Is there any such person in the 22 audience? 23 Okay. 24 MR. GROSSO: Hi, I'm Dominic Grosso. 25 I'm at 326 Dartmouth Avenue, Fair Haven. 113 1 G-r-o-s-s-o. 2 DO M I N I C G R O S S O, 326 Dartmouth Avenue, 3 Fair Haven, having been first duly sworn, 4 testifies as follows: 5 MR. GROSSO: I'd just like to 6 emphasize a few things. The Verizon applicant 7 has propounded that they're trying to serve the 8 public good and the public need, okay, and that 9 there's truly a need for this cell tower. 10 Now, the engineer testified, to my 11 understanding when I talked to him, that there 12 were volume issues and there were coverage 13 issues. Those things may be true at this time. 14 I'm not sure that they're true, but they may be 15 true at this time, but in the future they may not 16 be true. And there's some stipulation that the 17 tower would be taken down if the volume and 18 coverage issues are fulfilled in some other 19 method -- by some other method. But I don't feel 20 that that's truly the way things will go if there 21 should be or if there should be some other method 22 of getting a cell coverage in this town or if we 23 need it at all. Because this is really an 24 economically driven proceeding by Verizon. It's 25 not a public need issue at all. 114 1 The public -- the public need issue 2 I think other people stated that there would have 3 to be a complaint if there as a public need -- I 4 don't want to reiterate what other people have 5 said, but if there should be -- if the volume in 6 the coverage should be met in some other manner, 7 it would be economically driven whether that 8 tower comes down or not, if it goes up in the 9 first place. 10 First of all, it should go up in the 11 right place; and second of all, it shouldn't go 12 up if it's not needed; and third of all, if it 13 does go up it's never going to come down because 14 economics is going to drive it, not what the 15 residents of Fair Haven really need. The cell 16 tower's going to be right behind my house, but 17 it's going to effect a lot of other people, also. 18 So, you know, I want the Board to 19 consider my statement very carefully. I don't 20 think it's a good idea to have a cell tower in 21 the middle of a lot of other houses. And I don't 22 think that's particularly the best site for it in 23 Fair Haven. There's probably something else I 24 want to say, but I can't remember anything else I 25 wanted to say, but I think I said mostly what I 115 1 wanted to communicate. 2 MR. IRENE: Take your time. 3 MR. GROSSO: So... you know, you 4 could do all the politicking you want and you can 5 do all the things you want. But when it comes 6 right down to it, I think the Board has an 7 obligation to do what's best for the residents, 8 not because of economics, not because of some 9 fancy detail that someone can give about some 10 particular aspect of why we need cell -- why 11 everybody needs a cell phone that works perfectly 12 well everywhere in town. 13 I guess that's all I want to say. 14 Thank you. 15 CHAIRMAN MAHER: Thank you. 16 Okay. Are there any other members 17 of the audience that want to come forward and 18 speak on the application? 19 Yes, sir, please step forward. 20 MR. DEBREE: Why not. 21 CHAIRMAN MAHER: I believe you may 22 have been sworn in, but -- 23 MR. DEBREE: I haven't been sworn 24 in. 25 CHAIRMAN MAHER: All right. We'll 116 1 do it for the record, then. 2 Please state your name. 3 MR. DEBREE: Derek Debree, 4 D-e-b-r-e-e. 5 D E R E K D E B R E E, 335 McCarter Avenue, Fair 6 Haven, New Jersey, having been first duly sworn, 7 testifies as follows: 8 MR. DEBREE: I wasn't going to 9 comment, but I'm just so upset and offended by 10 the Borough's actions over the last four or five 11 years regarding the cell tower applications, and 12 it's an endless search. And I just want to state 13 for the record I just don't know how Council can 14 on one hand claim that the Verizon application is 15 harmful to the environment and the residents of 16 that community and on the other hand claiming 17 that the United Methodist Church location or the 18 Fisk Street location or any other location 19 somehow has more merit, particularly on those two 20 fronts. The environmental concerns, its new 21 location is disastrous in my opinion. 22 Most of the people if the tower goes 23 there will be shocked to find out that that's not 24 Fair Haven Fields part of Green Acres property. 25 I mean, it really is in the heart of the fields 117 1 and the nature area. And certainly as a resident 2 of McCarter I can tell you people are going to be 3 no more happy there then they are in the Gentry. 4 And for the record I'll state that I'd love not 5 to see a cell tower in this town, but I 6 appreciate your efforts and I just want to make 7 those comments. 8 CHAIRMAN MAHER: Thank you. 9 MR. DEBREE: Any questions? 10 Okay. 11 CHAIRMAN MAHER: Okay, any other 12 members of the audience? 13 MR. GILMOUR: I am here testifying 14 as a resident. Tom Gilmour, 864 River Road. 15 I don't know if I need to be sworn 16 in again. 17 CHAIRMAN MAHER: Let the record 18 reflect that he's been sworn in, he's still under 19 oath. 20 MR. GILMOUR: Is that okay? 21 T H O M A S J. G I L M O U R, I I I, 864 22 River Road, Fair Haven, New Jersey, having been 23 previously sworn, testifies as follows: 24 MR. GILMOUR: Okay. Obviously, I've 25 witnessed a lot of the testimony here and outside 118 1 of here regarding the issue of a cell tower. I 2 think the decision in front of the Board right 3 now is really a site decision. I think there's 4 been a lot of testimony about technology, need, 5 noncoverage, coverage. And I think when it comes 6 time for the Board to make a decision this really 7 is a site decision. And I encourage you to 8 really sort of look at that end of this decision. 9 My feeling is that for someone to be 10 granted a relief, and that's what the applicant 11 is here for asking for a variance or relief from 12 Borough ordinances, that they need to demonstrate 13 a significant reason for that relief. I refer to 14 it as a hardship. That for some reason some way 15 that there is a hardship that exists that they 16 need relief from to be granted the variance. I 17 have not heard that testimony. 18 I remember being at one of the very 19 early meetings of this application when the 20 applicant was asked whether there was other 21 locations on that site that possibly would be 22 better than the specific site that they're 23 requesting for at this time, and I think that 24 there are other sites that may be more 25 appropriate. My biggest fear as a resident is 119 1 the fact that we may get one tower put up today 2 and low and behold because we have given relief 3 to our ordinances, someone else comes in because 4 we don't have significant coverage in the town 5 and requests to build a second cell tower. 6 And since there's been some 7 precedent to give relief that a second tower 8 would be granted in Fair Haven. I think that 9 would be a very bad thing. I think there is a 10 location in town for one tower to significantly 11 provide the service that we need here in town. 12 Having said that, I just think 13 that -- I don't think that the testimony that's 14 been given right now warrants relief from the 15 present ordinances that are on the books. 16 CHAIRMAN MAHER: Okay, thank you. 17 MR. GILMOUR: Can I just ask a 18 question, too? 19 CHAIRMAN MAHER: Sure, 20 MR. GILMOUR: I know that there are 21 some people that were concerned about flooding in 22 this area that unfortunately were not able to 23 come here tonight and I'm just curious as to 24 whether there will be an opportunity for anymore 25 public comment about this application? 120 1 MR. IRENE: Well, that's something, 2 I assume, as we addressed earlier, Mr. Gilmour, I 3 think you were in the room at the time. 4 MR. GILMOUR: Yes. 5 MR. IRENE: The first question was 6 whether Mr. Lieberman had another witness who 7 couldn't make it tonight. The other question was 8 whether we finished tonight with all the public 9 comment. If we don't, then it's easy then -- 10 MR. GILMOUR: Right. 11 MR. IRENE: -- we could carry it. 12 Mr. Stilwell indicated he was going 13 to object if we did conclude all the testimony. 14 And, of course, the Board will then have to 15 consider how it wants to proceed at that time. 16 My suggestion would be that we defer on that 17 until we see where we are. Because if we don't 18 finish the public comment it's being carried. 19 It's going to carried at the very least for a 20 vote, if nothing more, because we don't much five 21 voting members tonight. But if we do conclude 22 all of the testimony this evening, we still have 23 our professionals, also. So the Board would have 24 to presumably consider whether we're going to 25 carry and allow additional testimony at the next 121 1 meeting. 2 MR. GILMOUR: Okay, thank you. 3 MR. IRENE: Thank you. 4 CHAIRMAN MAHER: Okay, again, 5 members of the audience that want to speak on the 6 application before us raise your hand? 7 Going once, going twice, silence. 8 BOARD DISCUSSION: 9 MR. IRENE: So we may be getting 10 close to answering that question. 11 Well, we do have Dr. Eisenstein and 12 Mr. Peters, but I was assuming that the Board 13 would generally allow them to make their comments 14 last. So the question is probably going to be at 15 this point -- why don't we have counsel come up. 16 Let's see what -- if Mr. Lieberman wants to renew 17 his request to carry it for his witness. We'll 18 let Mr. Stilwell object if he chooses to do so. 19 I know some other parties indicated that there 20 were other individuals who wanted to be present, 21 but couldn't. So why don't we let Mr. Lieberman 22 put his request on the record first, we'll hear 23 Mr. Stilwell, whatever comments from the Board, 24 and the Board can decide what it wishes to do. 25 MR. LIEBERMAN: Thank you very much. 122 1 Thank you very much. 2 I would request that we carry and 3 remain and keep as open the public comment 4 section. And in addition at the next time we 5 meet before vote is taken allow the municipality 6 to provide its expert testimony as it relates to 7 future developments should they be forthcoming 8 between now and that time. The testimony you 9 heard, the fact testimony from the Council 10 President was that this is very much and has 11 always been and continues to be a work in 12 progress. 13 It's clearly, as this Board knows 14 very well, a difficult process. It's difficult 15 for you on the Board and it's difficult for my 16 client as the legislative arm because they too 17 are trying to do what's in the public interest. 18 And so you have this unique situation where two 19 different fully charged and fully vested bodies 20 are doing the same thing, all working for the 21 public interest. 22 And so because of the magnitude of 23 this project and its importance, I think that 24 public policy would be best served in light of 25 all of the time that's been devoted to this to 123 1 give -- honor the municipality's request and keep 2 this open that one additional time so we can 3 really get a complete record. 4 MR. IRENE: You anticipate calling 5 one additional witness, Mr. Lieberman? 6 MR. LIEBERMAN: That is what I 7 anticipate. 8 MR. IRENE: And just so we know in 9 terms of scheduling and planning, it's an 10 expert -- is an engineer, do you know, or 11 planner? 12 MR. LIEBERMAN: It's an -- it would 13 be an R.F. expert. 14 MR. IRENE: Okay. The reason I ask 15 that is, and we'll hear Mr. Stilwell and the 16 Board's comments as well, but -- because he may 17 need to know if the Board does continue it to 18 bring one of his folks back. 19 MR. LIEBERMAN: I understand that. 20 And I think that what I would do also is confirm 21 that with Mr. Stilwell well in advance so 22 that -- and I represent to you now that I would 23 do that so that he wasn't surprised by anything. 24 MR. IRENE: Appreciate that. 25 Mr. Stilwell, you want to respond to 124 1 the request? 2 MR. STILWELL: I guess the first 3 question I have of Mr. Lieberman is -- 4 Can you advise who your radio 5 frequency expert is at this point? 6 MR. LIEBERMAN: The municipality is 7 still negotiating that contract, and so I'd 8 rather not do that right now. 9 MR. STILWELL: So as of today you 10 don't have an R.F. expert? 11 MR. LIEBERMAN: There is one person 12 who's been designated but the contract hasn't 13 been signed. 14 MR. STILWELL: So as of right now 15 that person had no authority to appear here? 16 MR. LIEBERMAN: That's correct. 17 MR. STILWELL: So it wasn't that 18 there was a flood or inability to be here, they 19 just haven't been retained yet? 20 MR. LIEBERMAN: That's correct. 21 And if I rep -- if it sounded as if 22 I was suggesting to the contrary, I didn't mean 23 to. 24 MR. IRENE: Yeah, I misunderstood. 25 I thought it was an expert on flooding. I heard 125 1 some reference to flood, I thought it was an 2 engineer. 3 MR. LIEBERMAN: No, the flooding 4 people were fact witnesses -- 5 MR. IRENE: The other folks, okay. 6 MR. LIEBERMAN: -- yeah, on Gentry 7 Drive. 8 MR. STILWELL: I don't know, just a 9 quick review of Cox seems to indicate that -- 10 MR. IRENE: -- it's within the sound 11 discretion of the Board. 12 MR. STILWELL: Correct. 13 And I would suggest that -- I'm 14 going to leave it to the Board's discretion, but 15 I would ask that in determining whether or not 16 you would grant a continuance, the Board take 17 into account the notion of the length of the 18 proceedings in this matter, the notice that the 19 attorney and this attorney have had with respect 20 to what's going to be presented and the fact that 21 members of the public have also been aware of 22 what's going on and that there was always a 23 possibility that this matter would come to a 24 conclusion at some point in time. They knew at 25 the end of the last meeting that we had no 126 1 additional witnesses to present. 2 I stated on the record that we had 3 concluded our testimony. I would have expected 4 that they would have been here and prepared to 5 proceed and they're not. And you've heard what 6 testimony there has been from the objectors who 7 were here and prepared to proceed. And having 8 said all of that I'll leave it up to the Board's 9 discretion. 10 MR. IRENE: Now as we did indicate 11 earlier depending on which way the Board wants to 12 go on this, you're not voting tonight anyway 13 because you don't have members for the 14 affirmative vote the D variance. 15 So is there any questions or 16 comments from the Board, any thoughts on that? 17 MS. GOTTUSO: I just thought for 18 this, I feel that we heard a lot of the R.F. 19 testimony and I don't know if the town is 20 bringing forth an R.F. expert to testify that 21 maybe their site would also work, but I think we 22 know that from the testimony that we heard that 23 that site would probably work just as well as the 24 site that's presented, so I'm not even sure why 25 we would want the spend the money to -- or why 127 1 the town would want to spend the money to hire an 2 R.F. expert if -- I think that point was made by 3 their expert -- 4 MR. STILWELL: We'd even stipulate 5 that site would work from a radio frequency 6 standpoint. 7 MS. GOTTUSO: Right. I thought I 8 remembered that testimony. 9 CHAIRMAN MAHER: I guess maybe a 10 better question might be -- I'm having a little 11 trouble understanding why this far into this 12 process -- which has been going on as we all know 13 for a very long time, which as we've actually as 14 a Board have gotten our own experts. We've 15 struggled with finding the right people and I 16 think we did so in a very timely fashion, and 17 they were able to get up to speed very quickly 18 where they're in position and ready to make 19 commentation, why the town has not been able to 20 secure their expert? 21 MR. LIEBERMAN: Uhm, the town -- 22 this has been an extremely dynamic and fluent 23 process for the town because while this process 24 has been going on in a parallel proceeding, the 25 town has looked at -- and it's been reported in 128 1 the newspapers -- numerous other sites that is a 2 matter of public policy it believes would better 3 serve the public. 4 So this particular need to hire an 5 expert does relate to the church site. It's site 6 specific and those facts which would have given 7 rise to hiring that expert didn't exist until we 8 knew that the decision on Green Acres had been 9 made which was about, I guess, about two months 10 ago, something like that. 11 MR. IRENE: Which church, 12 Mr. Lieberman, they're both churches. 13 MR. LIEBERMAN: No, the Methodist 14 Church. 15 MR. IRENE: The Methodist Church. 16 MR. LIEBERMAN: The Methodist 17 Church. 18 CHAIRMAN MAHER: Let me expand my 19 question then. 20 MR. LIEBERMAN: Yes. 21 CHAIRMAN MAHER: Whether it's the 22 Methodist Church, the application before us at 23 the Church of Nativity or at Fair Haven Field 24 even though it's been denied the Green Acres 25 status or for that matter any other location in 129 1 town that was a -- is already a PB designated 2 area, that the town has looked at multiple 3 properties. I know we discussed a list several 4 meetings back, you know, I think there were 5 several, I think five or six locations that were 6 discussed. 7 MR. LIEBERMAN: Right. 8 CHAIRMAN MAHER: The town probably 9 would have intended or assumed based on what 10 you're asking us to do is give you an extension 11 for your time to do a contract with an R.F. 12 expert would probably have wanted to get an R.F. 13 expert for any location. So I guess the question 14 goes back to why was that not that done? It 15 almost seems like we're kind of doing this 16 backwards. 17 MS. GOTTUSO: That kind of goes to 18 what is the purpose for the R.F. expert? If he's 19 to say that this is a good site, I think 20 Mr. Stilwell is willing to stipulate that it is a 21 good site. So -- 22 CHAIRMAN MAHER: Plus the fact that 23 we've retained our expert -- 24 MS. GOTTUSO: -- what more would the 25 R.F. expert say about it? 130 1 MR. LIEBERMAN: Well, the case law 2 provides that when a D variance is required 3 you're supposed to -- in these cell tower cases, 4 you're supposed to provide a site that's the 5 least intrusive. And I think that that testimony 6 would specifically go to the intrusive issue. 7 It's just not a question of whether it's 8 competent, but I think it would also go to the 9 intrusiveness. 10 CHAIRMAN MAHER: You're talking 11 about -- 12 MS. GOTTUSO: Didn't we hear someone 13 testify about that? 14 MR. LIEBERMAN: Yes. 15 MR. STILWELL: I don't necessarily 16 agree that that's our standard. Our standard is 17 the same as any use variance standard to satisfy 18 the positive and the negative criteria. And 19 proving a negative that this site is the least 20 intrusive is not one of the things that we need 21 to prove according to the Lakewood case and the 22 Appellate Division case. 23 CHAIRMAN MAHER: Keep in mind, this 24 application is about one particular location. 25 Now, that's not to say that the town is not 131 1 looking aggressively at other locations, but we 2 are hearing testimony about a specific location 3 and the positive or negative merits of that 4 particular location. 5 MR. LIEBERMAN: Yes. 6 CHAIRMAN MAHER: So I guess I'm 7 confused, are you asking us for an extension so 8 you can secure a contract with an R.F. expert 9 which you don't have today for an application 10 that's other than -- or a location that's other 11 than what we're hearing before us? 12 MR. LIEBERMAN: That's true, yes, 13 that's right. But I think that's true -- 14 everything you said is correct. 15 CHAIRMAN MAHER: Okay. 16 MR. LIEBERMAN: But I believe -- I 17 mean, I've been involved in several other cases 18 where that's been germane and I think it is 19 germane. In other words, one of the ways of 20 showing that a site is not the least intrusive 21 means, which I believe is -- I mean, I think that 22 is a factor that is supposed to be considered, is 23 by showing that there in fact is another site 24 that's available that would be less intrusive. 25 CHAIRMAN MAHER: But again as we sit 132 1 here tonight -- 2 MR. LIEBERMAN: Yes. 3 CHAIRMAN MAHER: -- be it your own 4 testimony earlier, that site is not 5 available legally. 6 MR. LIEBERMAN: We've always been 7 very upfront about that -- 8 CHAIRMAN MAHER: Understood. 9 MR. LIEBERMAN: -- that at this 10 point in time it's not. 11 CHAIRMAN MAHER: You cannot give 12 this Board tonight a guarantee that that site 13 would be legally available even by -- I believe 14 the meeting next date is May 10th, correct? 15 MR. LIEBERMAN: Well, if it's not, 16 then that would be the end of that discussion. 17 CHAIRMAN MAHER: I understand that. 18 You're asking us for an extension for something 19 that you're not even sure yourself is a viable 20 extension request. 21 MR. LIEBERMAN: What I'm doing is 22 asking for an extension in order to see whether 23 that becomes a feasible alternative. And 24 obviously, we don't know whether it is right now. 25 MR. IRENE: The Board may also want 133 1 to give some consideration -- it's up to the 2 Board which ever way you want to go on this, but 3 other than the merits of what we anticipate may 4 or may not be presented, the Board may want to 5 give some consideration just the procedural 6 posture of the entire case. 7 Understand that there's been -- you 8 all lived with it a lot longer than I have. I've 9 only been here for two meetings, but that it's 10 been going on for quite a while, as Mr. Stilwell 11 indicated, there's always the possibility that 12 someone may review this matter on appeal. And 13 from a procedural standpoint, would it be more 14 prudent to just allow in whatever additional 15 testimony someone may want to submit and just 16 seal the record and make it complete particularly 17 due to the fact that we're coming back next time 18 anyway for Dr. Eisenstein, for our planner and 19 eventually for a vote. That's up to the Board. 20 But I think the last thing anyone 21 would want to do would to essentially complete it 22 as we understand to be only to have someone, some 23 reviewing authority look at it and say, Well, you 24 know, you really should have let them... "them" 25 meaning whoever, Mr. Lieberman's witness, any of 134 1 the other interested parties who were not 2 available tonight. Again, I'm not saying it 3 should go on ad infinitum, but as I do indicate 4 that you're coming back next time anyway. 5 So I simply raise that procedurally 6 issue for the Board's consideration for whatever 7 it's worth. 8 MS. FICARRA: I have a question. 9 MR. LIEBERMAN: Yes. 10 MS. FICARRA: Are you saying that 11 you would be bringing this expert -- 12 MS. REEVEY: He's hoping. 13 MS. FICARRA: Pardon me? 14 MS. REEVEY: He's hoping to bring 15 him. 16 MS. FICARRA: Okay. If you do not 17 receive a letter of rejection from the DEP, where 18 do we go from there? 19 MR. LIEBERMAN: The site that we're 20 talking about isn't that site. The -- I don't 21 know -- 22 MS. FICARRA: Are we talking about 23 Methodist Church -- 24 MR. LIEBERMAN: Yes, yes, we're 25 talking about the Methodist Church. 135 1 MS. FICARRA: Okay. Okay, then I'll 2 take it from another angle. 3 MR. LIEBERMAN: Yes. 4 MS. FICARRA: Considering the fact 5 that it says in here in this letter that the meet 6 the consensus -- 7 CHAIRMAN MAHER: Just for the 8 record, the letter she's reading is the letter 9 that was provided -- 10 MR. LIEBERMAN: M-1. 11 CHAIRMAN MAHER: Yes -- 12 MS. FICARRA: Right. And that 13 basically to date such consensus doesn't exist 14 and they would definitely need the approval, 15 consensus recommendation from their congregation. 16 MR. LIEBERMAN: Right. 17 MS. FICARRA: What are your thoughts 18 on how close that is? 19 MR. LIEBERMAN: I'm not involved in 20 those negotiations. That's something that the 21 government is doing and they're actively doing 22 it. And that letter really gives the best, the 23 best way -- it's a written memorialization of 24 where we are coupled with what the Council 25 President said. But, of course, his hands were 136 1 tied a little bit just because negotiations are 2 always a little confidential. 3 But what I can tell you is is that 4 on the part of the governing body there clearly 5 are good faith negotiations. And I have no 6 reason to believe that to the extent the church 7 has come forward it's laboring in good faith. 8 One can never make a promise -- 9 MS. FICARRA: I wasn't 10 questioning -- 11 MR. LIEBERMAN: Yes. 12 MS. FICARRA: -- they were laboring 13 in good faith. But there is a possibility that 14 they will not reach a consensus by May 10th? 15 MR. LIEBERMAN: Yes. 16 MS. FICARRA: In which case? 17 MR. LIEBERMAN: That would be the 18 end of my request. 19 MS. FICARRA: That's the end -- 20 MR. LIEBERMAN: I'm not asking to go 21 beyond that. My position is -- my request is is 22 that because this is matter of public importance 23 to this municipality, because the governing body 24 has invested a substantial amount of resources 25 itself to do what I think everybody is trying to 137 1 do and because, quite frankly, just -- because I 2 don't have a legal way to put this, but because 3 we're coming back anyway, that we keep the record 4 open to give that one last chance to work. 5 What the Board does with that is 6 something else. What we would do with it -- I 7 mean, you know, there are a line of cases that 8 talk about measuring the intrusiveness of the 9 tower in granting this kind of variance in the 10 context of the tower. Obviously, we would be --- 11 in our closing argument we would be arguing that 12 if that works out that that's the least intrusive 13 and we would have testimony that would support 14 that. 15 So that's what I'm proffering to 16 you, that's what I'm telling you in advance we 17 would be doing. I don't disagree with you that 18 this has been an arduous task. I mean, this has 19 been a long application. But... 20 MS. GOTTUSO: Mr. Lieberman, my 21 question went to -- when you talk about 22 intrusive, is that like a site -- we've heard 23 from so many different experts now, you know, and 24 each one is so specific about what they do -- 25 MR. LIEBERMAN: Right. 138 1 MS. GOTTUSO: -- is it more the 2 planner that makes it be intrusive, less 3 intrusive, more intrusive or is it the R.F. 4 engineer that deems it more intrusive, less 5 intrusive? I was just curious because you're 6 bringing the R.F. engineer so to me it seems it 7 like may be that was the site person, the 8 planner. 9 MR. LIEBERMAN: It's the totality of 10 the evidence and everything the site has to offer 11 compared to another site that goes to that issue. 12 There's no one thread for that. 13 CHAIRMAN MAHER: If I may ask you a 14 question? 15 MR. LIEBERMAN: Yes. 16 CHAIRMAN MAHER: If hypothetically, 17 the good faith conversations with the Christ 18 Church don't turn positive -- 19 MR. LIEBERMAN: Yes. 20 CHAIRMAN MAHER: -- so therefore 21 that location is not available on May 10th -- 22 MR. LIEBERMAN: Right. 23 CHAIRMAN MAHER: -- is your R.F. 24 expert going to speak on what? The reason you're 25 bringing him forward is to speak on alternative 139 1 locations. If there's no location -- 2 MR. LIEBERMAN: No, no. What I'm 3 proposing and, you know, I mean, what I'll do 4 is -- obviously we're working this through as we 5 speak. I mean, it's real eas -- 6 CHAIRMAN MAHER: That's why I'm 7 asking. 8 MR. LIEBERMAN: I don't know if I 9 can provide the best answers to some of those 10 questions because I'm trying to work on my feet a 11 little myself. But the purpose of this expert is 12 to address this particular site. 13 CHAIRMAN MAHER: Okay. 14 MR. LIEBERMAN: That's what I'm 15 telling you. 16 CHAIRMAN MAHER: "This particular" 17 meaning the one that's currently before us and 18 then if there's another location he'll speak 19 about that as well? Or -- meaning "this 20 particular" meaning the Christ Church -- the 21 Methodist Church. Got you. Understood. I 22 apologize for being confused. 23 MR. LIEBERMAN: Apologize's 24 accepted. 25 Is there any further information 140 1 that I can provide to clarify myself? 2 CHAIRMAN MAHER: No, I think I've 3 got it now. 4 MR. IRENE: Well, it's up to the 5 Board as to whether you want to continue or not. 6 CHAIRMAN MAHER: Right. 7 And so I think as a Board we need to 8 decide if we're going -- well, we're going to 9 continue the matter, obviously, but in what 10 fashion we continue. And I would just state for 11 the rest of the Board, my opinion would be that 12 while I don't necessarily think the R.F. expert, 13 if they were to secure one, is going to tell us 14 anything different or more or less than either 15 their experts or our own experts. I also don't 16 think that it can hurt any by, you know, having 17 as much testimony as possible, as long as it 18 doesn't draw on forever being we have to come 19 back anyway. 20 It's up to the Board, obviously, you 21 can choose to do as you wish. 22 MS. FICARRA: I think based on 23 Mr. Irene's discussion of the fact that if this 24 were to come up for appeal that we would have 25 covered it already. 141 1 CHAIRMAN MAHER: Take the high road. 2 MS. FICARRA: That's my opinion. 3 CHAIRMAN MAHER: You want to put any 4 comments on the record or just nod? 5 MS. GOTTUSO: (Nods.) 6 I make a motion. 7 CHAIRMAN MAHER: Well, hold on. 8 So at this point what we're looking 9 for is a motion to be carried with -- for not 10 only public comment, but also so Mr. Lieberman 11 can bring his R.F. expert before us. 12 MR. IRENE: You're essentially 13 carrying just -- you're carrying the matter to 14 that May 10th meeting. Nothing's being closed 15 out at this point. 16 CHAIRMAN MAHER: No need for 17 publication or notification? 18 MS. MERCADANTE: It's already been 19 published. 20 MR. IRENE: But we're going to 21 announce the new date tonight anyway. 22 And Mr. Stilwell, there we are. I 23 assume you're going to give us an extension of 24 time in which to act because we need to book next 25 time anyway. Although, we understand that you 142 1 have kind of sort of objected to it being 2 carried. 3 MR. STILWELL: No, of course, I'm 4 granting an extension of time. 5 DR. EISENSTEIN: Mr. Chairman -- 6 MR. IRENE: And if I could also just 7 remind -- I don't mean to interrupt you, but so I 8 don't forget, obviously, what I would suggest is 9 that we get the transcripts sent in advance of 10 next meeting so that assuming we can wrap 11 everything up, the Board who wasn't here tonight 12 will have an opportunity to review it. 13 MR. STILWELL: That's fine. 14 MR. IRENE: Hopefully, we can get a 15 vote. 16 MR. STILWELL: We'll get both 17 transcripts to you. 18 MR. IRENE: That would be great. 19 DR. EISENSTEIN: Can I request that 20 if a new R.F. expert is brought in that I can be 21 in discussion with whoever it is and receive 22 their information in advance of the meeting. 23 MR. IRENE: I think that would be 24 good idea. It would help expedite everything 25 unless counsel has any objection. Mr. Lieberman, 143 1 I assume we're going to need something so 2 Dr. Eisenstein can have a chance to take a look 3 at it? 4 MR. LIEBERMAN: I've worked with 5 Dr. Eisenstein on numerous occasions and I have 6 no problem cooperating with him in any way shape 7 or form. 8 MR. IRENE: And, obviously, you 9 indicated that you were going to advise 10 Mr. Stilwell, so you'll advise the Doctor and 11 Mr. Stilwell at the same time and everybody can 12 be on the same page and we can hopefully wrap 13 this up? 14 MR. LIEBERMAN: Abs -- my hope is 15 exactly that way, and I'm sure that's exactly 16 what's going to happen as a matter of fact. 17 MR. IRENE: Thank you. 18 CHAIRMAN MAHER: At this point, may 19 I have motion on carrying the meeting to the May 20 10th? 21 MS. GOTTUSO: I'll make that motion 22 to carry the meeting to May 10th. 23 MS. FICARRA: Second. 24 CHAIRMAN MAHER: Let the record 25 reflect there was a motion by Mrs. Gottuso, 144 1 second by Mrs. Ficarra. 2 MR. IRENE: And question on the 3 motions that's to carry the matter to May 10th, 4 2007 at 7 p.m. 5 Is that right? 6 MR. STILWELL: 7:15. 7 MR. IRENE: I'm sorry, 7:15 p.m. 8 without the necessity of renotice, and 9 Mr. Stilwell has been kind enough to give us an 10 extension of time with that to that meeting. 11 MR. STILWELL: Why don't we make the 12 extension to your regular meeting in June just in 13 case there's a flood? 14 MR. IRENE: Even better. Thank you, 15 Mr. Stilwell. That's very gracious of you. 16 Do you want to take a vote, roll 17 call? 18 CHAIRMAN MAHER: Roll call, please. 19 MS. MERCADANTE: Peter Maher? 20 CHAIRMAN MAHER: Yes. 21 MS. MERCADANTE: Marianne Ficarra? 22 MS. FICARRA: Yes. 23 MS. MERCADANTE: Suzanne Gottuso? 24 MS. GOTTUSO: Yes. 25 MS. MERCADANTE: Sonia Reevey? 145 1 MS. REEVEY? Yes. 2 MR. LIEBERMAN: Okay, thank you. 3 MR. IRENE: Any interested parties 4 please mark your calendar accordingly. There 5 will be no further notice. May 10, 2007, 7:15 6 p.m. right here. And any exhibits that have been 7 marked, please make sure that the stay up with 8 the Board. 9 MR. TARTARONE: Will there be more 10 public comment? 11 MR. IRENE: The meeting is still 12 open. 13 MR. TARTARONE: Okay, so that will 14 be the last opportunity for -- 15 MR. IRENE: Well, we're assuming, we 16 don't know, we'll see. The meeting's still open. 17 The meeting is closed for this evening, but it 18 has not been closed permanently. 19 Thank you. 20 CHAIRMAN MAHER: Motion to adjourn? 21 MS. REEVEY: Yes. 22 MS. FICARRA: Second. 23 CHAIRMAN MAHER: All in favor? 24 All opposed? 25 So be it. 146 1 Thank you very much. 2 MR. IRENE: Thank you. 3 4 (HEARING CONCLUDED AT 9:56 P.M.) 5 6 7 8 9 C E R T I F I C A T E. 10 11 I, LINDA P. CALAMARI, a Notary Public of the 12 State of New Jersey, do hereby certify the 13 foregoing to be a true and accurate transcript of 14 my original stenographic notes taken at the time 15 and place hereinbefore set forth. 16 17 18 ----------------------------- 19 LINDA P. CALAMARI 20 21 22 23 Dated: MAY 3, 2007. 24 25