By JOHN T. WARD
In a contentious exchange that appeared to foreshadow a lawsuit to come, a lawyer for a Red Bank convenience store challenged the rationale for a new local law that banned all-night businesses Wednesday night.
Squaring off against three lawyers sitting on the council dais, store attorney Philip San Filippo said a revision to a noise ordinance passed by the governing body just moments later was overly broad in scope and designed solely to torpedo his client’s plans, now pending at the borough planning board, to convert the store to a 24-hour 7-Eleven.
The law, cast as an amendment to a noise ordinance, was “absolutely” designed with his client’s plans in mind, San Filippo told reporters afterward.
“It absolutely was not,” insisted Councilman Mike DuPont, even as he touted the hastily enacted law as a “creative” response to a problem.
Welsh Farms owner Dina Enterprises is scheduled to return to the planning board on May 21 for what is expected to be a vote on its proposal, which calls for a small expansion and changes in signage.
The plan, however, has met fierce opposition by neighbors. They say allowing the store, which now closes at 10 p.m., to operate all night raises security and quality-of-life issues.
At the council’s April 26 session, Mayor Pasquale Menna, who is an attorney and a member of the planning board, introduced the noise ordinance amendment. The item was not on the agenda, and no written copies were available. Afterward, asked why the council was acting in such a rush, Menna told redbankgreen: Get it done now.
The law doesn’t affect existing businesses, only those within 100 feet of a residential zone that are not already open after 11 p.m. Restaurants and bars are also exempted.
Now, though, even if Dina Enterprises is successful at the planning board, the Welsh Farms would be barred from opening all night. San Filippo said he would consult with his client about the possibility of filing suit against the council.
That prospect was already in DuPont’s mind when the public comment portion of the meeting opened and San Filippo began asking questions about police department data cited at the April 26 introduction. That data purported to show a pattern of disturbances requiring police intervention at convenience stores late at night.
DuPont, a lawyer whose office is next door to SanFilippo’s on Broad Street, repeatedly cut off San Filippo.
“Your asking questions which I find to be alluding to or insinuating that the statistical date didn’t support the vote,” he said. “It’s kind of disappointing. It was a creative way to protect our neighborhoods from all-night establishments that had never been there before.”
San Filippo, though, argued that the kinds of disturbances cited in the data are already against the law, whereas the amendment seeks to curtail land use without going through the process of vetting the change against the town’s Master Plan and land-use bodies.
“If you’re really concerned with noise associated with businesses located in proximity to residences, then let’s deal with the activity that generates the noise,” he said.
Menna and borough Attorney Dan O’Hern defended the change as supported by court precedent. O’Hern also said the change reflected “common sense. If you put a 24-hour operation within 100 feet of residences, that’s going to interfere with the peace, quiet and solitude of the residents nearby.”
Here’s the ordinance: 2012-8001