e e e e e e e e e hi good evening everyone um we're going to call to order tonight's uh Township of fard Zoning Board of adjustment meeting the first item on the agenda is the flag salute so if you can stand please do that United States of America the IT stand naice for all in accordance with the requirement of the open public meetings law notice of this meeting of the board of adjustment of the township of Bernards was posted on the bulleon board in the reception hall of the municipal building Coler Lane Basking Ridge New Jersey it was also mailed to the Bernardsville News whiy New Jersey The Courier News Bridgewater New Jersey and it was also filed with the Township Clerk all on January 8th of this year and it was mailed electronically to all those people who had requested individual notice the following procedure has been adopted by the Bernard's Township zoning Board of adjustment there will be no new case is heard after 10:00 tonight and no new testimony heard after 10:30 this evening Miss keber can I ask you to do a roll call please certainly um Miss Balman Miss Pichi and Miss poar are recused Mr helverson and Miss Herrera have called in um they are unable to attend this evening and Mr finger indicated that he might be a little delayed in aring okay thank you chairwoman janers here Mr camber here Mr Krauss here Mr Tedy here Mr Warner here Mr Quinn here Mr schl here and for the record Miss keeper is present mad chair you may proceed thank you we do have a quorum um here tonight we uh not going to get the opportunity to vote on this tonight so Quorum will carry us uh for tonight is sufficient no uh uh applicants Council no objection to us proceeding with a forers folar no objections okay than thank you thank you um can I uh have a motion to excuse the absences of uh Mr Herrera and uh Mr hon Mr hon too so move thank you second thank you all in favor I opposed abstain thank you okay thank you um next on the agenda is the approval of resolutions 5A is the Riverwalk Village LLC which was uh zb2 4006 are there any comments questions um edits questions or motions to approve as drafted and Madam chair you are eligible Mr K is eligible and Mr T is eligible thank you and I will motion to approve the resolution as drafted thank you I'll second thank you you Mr Krauss yes Mr Tedy yes uh chairman Engineers yes thank you thank you and the second resolution is the Don V LLC which was Z B 24008 it was also circulated in advance of tonight's meeting any comments questions or motion who's eligible on that same same same motion approved thank you Mr CR second thank you m t you flipped it there I saw yeah it's nice we're mixing it up we're keeping it fresh I like it Mr yes Mr tank greedy yes Sher Engineers yes thank you thank you um next on the agenda is the continuation of the signature Acquisitions LLC which is continued from June 5th 2024 uh Madam chair if I could just make a a brief statement I just want to put on the record I'm representing signature Acquisitions my name is Michael silbert I'm I'm from the law firm de franccesco baitman located in Warren Township Mr Lair couldn't make tonight's uh hearing there was a uh witness list that was circulated to Signature in the board and I just had a uh couple of things I wanted to to discuss uh preliminarily just so that the hearing runs uh efficiently and smoothly um first thing is I would just ask that any of the witnesses clarify for the record whether or not they are represented by Mr Berlin as members of the residence Council or if they are not represented by Mr Berlin it's the first uh point and if I may by taking one at a time my advice to the board is that that's very fair in fact Mr Berlin uh was kind enough to provide a witness list uh so we'd be able able to at some point cross reference that anyway but it would be helpful to know whether any of the Witnesses are uh uh clients and uh a part of the objetive group or not because that is something we do need to keep distinctions uh with so in my legal opinion it's a fair request um thank you Mr Warner and uh Madam chair the the second point is as it relates to public comment if a witness is is coming up to speak this evening um and being questioned by Mr Berlin um it's my position that that should suffice as their public comment they've had the opportunity to put their testimony on the record and that they not be afforded the opportunity to appear again before the board have two bites at the Apple so to speak uh to provide additional testimony during the public comment portion was this the second point I had okay with respect to say Madam chair and again uh Mr Bin's free If he if he disagrees to to to disagree in stateus position why but uh the law is uh in my opinion for under the municipal land use law you can make public comment with uh it's clear if you're represented by Council you can make public comment but if you are making that public comment SL testimony as a witness uh during the obor's case that's fine if you want to make it at the end as public comment that's fine but you cannot do both uh so uh and uh if I could take Mr blin's nod in the but it appears to be a nod in the affirmative as an a concurrence uh Mr Belin then I think we're all on the same page there as well by public witnesses that I'm producing are fact right we are not making public comments at this time no no public well maybe we Mr blin didn't mean to nod in the affirmative maybe he disagrees but the legally uh you can't do both uh you can either make public comment uh notwithstanding the fact that you're represented by Council or you can testify which is essentially the same thing because public comment is under oath and testimony um but you can't do both uh so uh you you could uh your Witnesses if they are uh your Witnesses are making their test their comment as testimony uh dur at basically tonight as opposed to maybe a month or so from now uh when it would be public comment uh it's one or the other that's the law the um oh yeah so the the third point is something that Mr Lair touched on uh at a number of hearings but I would just ask that the um Madam chair that any repetitive or relevant testimony be kept to a minimum as much as possible obviously signature wants to afford uh objectors their due process rights to have their their testimony heard however we want to ensure that our our due process is preserved in the sense that things are moving forward uh and without delay or at least not justifiable or unjustifiable delay um and there's case law as well as uh the Cox book uh affords you with the opportunity to limit uh repetitive testimony or irrelevant testimony and and legally that cuts both ways because for all Witnesses uh there's not supposed to be any repetition um but yes there is a body of case law uh uh the shim case and many others that we're familiar with uh that uh uh that give the board uh reasonable discretion uh so as to avoid uh uh repetition in public comment uh be it public comment uh or be a public comment as fact Witnesses on behalf of an objector or for that matter uh repetition by applicants uh uh the chair has that and the board have that discretion it's the same for everybody yep just thank you Mr Warner and I'm just asking that the that the The Madam chair and the board use that discretion um accordingly uh my last Point um before I sit down um so Mr bin included himself on his witness list and I would just like to preemptively object to this uh the board should not permit an objecting attorney to call himself as his own witness even if he is an interested party as a res resident of Fellowship Village um New Jersey and the ABA both having their rules of professional conduct and guidance on this exact issue that essentially state that a lawyer should not act as an advocate at a trial in which the lawyer is likely to be a necessary witness so if Mr Berlin feels as though he is a necessary witness for these proceedings he should not have represented himself and held him out held himself out to be an attorney um obviously there's exceptions to that rule but none of them are applicable this evening so I recognize we're not in a court in law court of law we're not in a formal trial this is a quasi judicial body and the same principles regarding professional conduct as well as uh same same principles regarding professional conduct that would take place in a court of law should apply here to ensure the Integrity of this proceeding is upheld so that's my thank you thank you madam chair and certainly Mr Berlin uh if he takes issue with any U of of these requests by applicants counsel uh or for that matter my legal advice to the board he's welcome to do so but uh candidly I noticed when I got the list that he was on the list uh the first person listed on the list as Witnesses and I am also familiar with the rpcs so I immediately pulled rule of professional conduct 31 colon 4 uh RPC 3 excuse me RPC 3.7 uh entitled lawyer as a witness and it does provide a lawyer shall not act as Advocate at a trial in which the lawyer is likely to be a necessary witness uh there are three exceptions I don't they relate to uh testimony regarding uncontested issues testif testimony relating to the nature and value of legal services rendered in the case uh and uh uh disqualification of the lawyer uh would work a substantial hardship to a client um but uh and those are very narrow exceptions uh under the law uh we do uh have some leway as we're quasi judicial uh we're not in court of law uh but by the same token the rpcs as I understand them apply uh uh as well as the court rules to a large extent for example uh as you know when we have entities as opposed to individuals appearing uh as applicants uh or as objectors uh they have to be represented by attorneys uh because there is a New Jersey Court rule that says if you don't do that that would constitute the unauthorized practice of law not unlike that uh I suspect uh well I'm concerned and I don't want to be the board uh or myself to be a party and I'm certain Mr belind doesn't want to be a party uh to uh violating the rules of professional conduct for attorneys uh by uh attempting to appear as both Advocate uh attorney on behalf of the app excuse me the objector or one objector group uh as well as a witness and there's a variety of reasons why that are listed uh in the uh case law relevant to that RPC that rule of professional conduct guiding attorneys as such uh an attorney's dual role is both Advocate and witness can deserve the client mislead the Trier of fact uh or Prejudice the opposing party uh in court issues uh and we are somewhat as board members not myself but you somewhat akin to jurors hearing the case you are rendering the fact finding a jury is likely to give little Credence to a party whose testimony is contradicted by his or her own a lawyer that could do a disservice to the uh client who's represented by the lawyer who is testifying the Restriction also seeks to prevent the triar of fact you board members from being confused over how much weight to ascribe to an attorney's testimony uh thus pre prevent the rule prevents the danger uh that the jury or board members May confuse what is testimony and what is argument by the attorney uh the jury the jury's confusion over statements made by an attorney serving as both Advocate and witness may also Prejudice the opposing party uh the primary danger being when a lawyer in the case offers testimony uh it could be given undue weight uh because it's statements made by an attorney as opposed to a fact witness it's the attorney in the case for the same reason opposing Council may have more difficulty attacking The credibility of a witness when that witness is also the advocate in the case the tri the attorney for one of the parties so that is just some of the reasoning behind the rule of professional conduct that prohibits lawyers from being both material fact Witnesses or fact Witnesses at all and uh Advocates and attorneys on behalf of a party in a legal proceeding which in my opinion carries forward uh to these quasi judicial proceedings as well the uh so I I have to say they're Fair points and and and with respect to the latter one I myself was concerned when I saw Mr blind's name on the list Mr blim want to give you a full and fair opportunity if you disagree with any of my advice to the board um but uh uh my advice at least preliminarily is you can't be both uh without violating the rpcs and I wouldn't want you to do that may I M yeah Mr Berlin do you want to come up thank you this is a little bit of a different situation I happen to be excuse me I have filed an appearance twofold I filed an appearance as the attorney for the resident Council of Fellowship Village but I have also filed an appearance on behalf of my myself as a resident of Fellowship Village my testimony tonight does not go to opinion or anything like that it only goes to facts that I have personal knowledge about as a resident at Fellowship Village does anybody else have any similar knowledge yes they have other witnesses that will give their experience but they cannot experience testify as to the experience at 7106 Fellowship Road no I understand that do do you have any other uh uh uh positions with respect to your belief that you would not be violating the rules of professional conduct specifically 3.7 if you were to both appear as an attorney and testify I do not okay except except someone who's been practicing over 50 years did did you ever testify in in a in a trial court case in which you were also the lawyer for one of the I've never had a situation excuse me sir don't interrupt I've never had a situation where I have also been the litigant right okay and and the court would never have allowed you to do so because I disagree of the rpcs what your familiar now let me just make a comment if I'm not allowed to testify tonight and the five witnesses that I have lined up who are members of the uh Council just for clarity one two well I'm not producing I'm not I'm not producing them all okay so they'll be five right and they are all uh uh uh uh officers of the entity that not offices members or members excuse me okay now thank you for that clarification I disagree with your ruling I ask for a short recess so I can discuss with those Witnesses rather they would rather testify tonight or whether they would rather uh be able to give comments at the end I suspect that they would like to give comments at the end which means we'll have no Witnesses tonight and I'm sorry I apologize to all of you for coming out on this um this evening well couple of things if I may Madam the uh first of all with respect to the uh rules of professional conduct 3.7 the fact that you filed an appearance as both an attorney for an ejector entity and as an attorney for yourself or your you know frankly you are yourself you're an individual to begin with uh you don't have to file an appearance to represent yourself but the fact that you are representing another entity uh is exactly what is covered under RPC 3.7 it is applicable so it would be a a a violation of the rules of professional conduct for an attorney to do that uh and the board in my my advice to the board is not to be a party to that that um the the uh I only advise the board I don't make rulings I can't give you advice you can decide to do what you will if you think it's a good idea to to to advocate for being both but candidly my advice to the board is don't do it and I hope the board doesn't put you in a position where you violate the rules of professional conduct in that way number one number number two the uh as far as uh whether or not individuals want to testify uh now or ler her uh they'd be testifying now with you direct examining them so to speak that would be their way of making public comment uh or they can do it later it's their choice um but you have indicated they can't do both correct they uh they can't do both because and that's consistent with the mun with the municipal land use law again my advice to the board board hasn't ruled yet uh on any of these issues well I've asked for a short recess so I can discuss with them and see what choices their choices defer to the chair yeah I just from on behalf of the board I mean I based upon what I've heard I have no reason not to take the advice uh of our lawyer so I I would um from a board perspective um not have you uh testify as a fact witness if you're acting as a lawyer second um I think it's completely reasonable for you to have a recess to talk to um your witnesses to see if you want to either walk the them through their testimony now I appreciate that they may want to comment and they may not be prepared tonight for that comment so is five minutes enough oh yeah okay so why don't we if I could just say one thing and and and because I didn't want there to be any confusion Mr belind as an attorney representing a client while you can't also testify as a fact witness as you know uh uh the uh you will be making summation so throughout you you can summarize the testimony of others you can make your arguments uh accordingly I know you will say it's not the same thing I'm not suggesting one equals the other Council I understand what you're saying if the uh chair backs up your ruling I have no choice at this point let's take the recess and see where we're going it may be that we're just going to adjourn okay let's take a choice let's take a f minute recess you can meet with your clients and maybe 10 but it won't be more try all right well on my list come on e e e okay we are uh back in session and I think all the members uh are present Mr Bruin um all of my Witnesses prefer to comment at the end okay so we have just so that we we have no testimony you will not be presenting any Witnesses is at this time right um and therefore I guess we're done so um just in terms of when that um next meeting will be for Signature uh we're going to cancel July 3rd correct and I believe it's going to be July 11 correct July 11 M chair if there's no Witnesses being right into that microphone please if there's no Witnesses being called does Mr B have any closing arguments he could make this S I can't hear you I said that if you don't have any witnesses that you want to call this evening do you have any closing arguments that you'd like to make to close your case you have no witnesses that you wish to call you misunder understand I have witnesses Mr bind you're you're gonna I I think it's Mr Belin should have the author uh the the opportunity to make his summation after uh uh the any other objectors case is Put on We believe we have one coming uh from fellowship Village and their attorney Jen Smith with an expert uh and certainly there'll be members of the public will be making comments some of whom are uh Mr Berlin's clients so In fairness to Mr Berlin he should be given an opportunity to make a summation after all that uh testimony uh is is completed that's after all of the public comments or correct at that at that point uh both objectors councel uh who main uh can make their summations and and then uh uh applicants Council can make its summation and then the board will deliberate and vote okay well keep in mind we still have U Jennifer Smith we know she will produce her witnesses witnesses in July that's who I was referring to so we um so we will carry this hearing until July 11th without uh without any further notice further notice we're going to carry this to July 11th so for members of the public July 11th uh and that's when we'll hear from uh Miss Philip Smith's uh Witnesses I have two questions is there going to be an August meeting um we didn't decide that yet but I'd like there to be part of me would like there to be an August meeting what is your inclination my inclination is there will be an August meeting I'm sorry my inclination is yes there will be an August meeting I think it will depend on how the July 11th um meeting goes but uh we do have a regular meeting scheduled for August 7th and then there's always the option for a special meeting we did not decide that yet and I think we will decide that on July 11th all right and one other question um we all received a letter from the attorney for the Board of Education today um I'm a little confused on your rule uh is the board accepting that letter or do they the board of I'm sorry please finish I know where you're going you know where just sure then you if you'll let me go then the the the uh yes we we did get that to I got that today um the uh and the attorney for the Board of Education was advised uh that as a uh the board of education is separate and independent not only from this board but from uh the township as well it's not part of the governing body it's not the environmental commission submitting a report what have you uh so it's my was my opinion that they be treated the same as other individuals who cannot make expart Communications without witness testimony they were advised as such and so it's possible that we'll be hearing from them possibly on July 11th that's exactly why I raised the question all right okay thank you thank you Mr berin um okay uh next on the agenda is comments for members Miss kefir I think um I think we had discussed at the last meeting that uh we were in favor of canceling the July 3rd meeting unless Mr Krauss has feels otherwise no so we're going to cancel the July 3rd meeting do we need to vote on that or we can just cancel um I'll take care of that okay aular meeting it's a regular meeting quick roll call on canceling the July 3rd meeting please thank you okay um Madam chair yes Mr Cambria yes wow yes Mr K yesam thank you um uh next is uh any comments from staff Mr Fish this was a very short meeting no no that's okay you missed everything actually um uh toour some move