Minutes: December 3, 2020*
Call to Order
The special workshop meeting of the Township Council of the Township of Vernon was convened at 10:00 a.m. on December 3, 2020 in the Vernon Municipal Center, 21 Church Street, Vernon, New Jersey with Council President Harry Shortway presiding.
Statement of Compliance
Adequate notice of this meeting had been provided to the public and the press on November 30, 2020 and was posted on the bulletin board in the Municipal Building in accordance with the Open Public Meetings Act, N.J.S.A. 10:4-7. The purpose of this meeting is to discuss Open Space Committee, Restructure of the Building/Zoning Departments and Setting Salary Procedures and any other business that may come before the Council. Action May Be Taken.
Present were Council Members Jean Murphy, Andrew Pitsker, Kelly Weller and Council President Shortway. Also present were Mayor Howard Burrell, Business Administrator Charles Voelker and Township Attorney Marlin Townes. Council Member John Auberger was not present.
Salute to the Flag
Council President Shortway led the assemblage in the salute to the flag.
Council President Shortway asked for a motion to move the public comment to the end of the meeting.
Motion: Jean Murphy
Second: Kelly Weller
All members were in favor.
Council President Shortway asked for a motion to amend the agenda to discuss first the Restructure of the Building/Zoning Departments, second Open Space Committee and third Setting Salary Procedures.
Motion: Jean Murphy
Second: Kelly Weller
All members were in favor.
Restructure of the Building/Zoning Department
Mayor Burrell said the Council stressed upon him some key and important questions that they wanted answered in reference to the reconstruction of the Building Department. Mayor Burrell explained that about five months ago we hired Robert Westenberger as the Construction Official and he has answers to some of the questions the Council has asked.
Council President Shortway commented that during my tenure as Mayor the “Building Department” was the continual target of complaints by residents, councilmembers and contractors.
Although the complaints were addressed and disciplinary measures were taken to improve service the complaints continue to persist.
It is clear to me that there has been a lack of supervision within the (proper title) Division of Building. There is no specific chain of command within the Department of Planning and Development (DPD). The DPD consists of three divisions.
Township Code; See ARTICLE XI Department of Planning and Development
Department of Planning and Development there shall be the following divisions:
A. Division of Planning and Zoning.
B. Division of Building.
C. Zoning Officer
No person was appointed to direct the Department of Planning and Development although three divisions exist within this department. Listed in Ordinance 11-21, An ordinance of the Township of Vernon, County of Sussex, State of New Jersey amending the code of the Township of Vernon adopted September 26, 2011.
ARTICLE III General Administration
§5-12. Departments and offices.
C. Each department shall be headed by a director, who shall be appointed by the Mayor with the advice and consent of the Council
G. Departments and offices established within the Township are as follows:
1. Department of Administration;
2. Office of the Clerk;
3. Department of Finance;
4. Department of Public Works;
5. Department of Planning and Development;
6. Department of Public Safety; and
7. Department of Recreation and Community Development
Note: A Building Department is not listed.
See ARTICLE XI Department of Planning and Development
It appears that three divisions under the Department of Planning and Development are without a Department Head or Director that was approved by the Council.
2016 & 2019 Employee Census list the LUB secretary as the Department Head of Planning and Development. Both census is absent of a Land Use Administrator that existed in 2011. Minutes from 2015 to present do not reflect that the LUB secretary was ever approved by the governing body to be a department head.
In addition, it appears on July 2015 Mayor Marotta announced Tom Pinand, was the Head of the Building Department upon his retirement. Mayor Marotta explained that the Township had appointed David Condon, the Township Inspector at that time, to Mr. Pinand’s position. Township code does not list a Building Department. It is the Department of Planning and Development.
Further investigation is required to determine if Tom Pinand and Dave Condon were ever approved by Council to be a department head.
Construction fee revenue has declined during the last four years except for 2017. Further analysis is required to determine the cause. However, the decrease is reason for concern since I was constantly advised that the Division of Building was “busy,” leading to complaints.
Compounding my concerns is my recent discovery of the 2008 Construction Official Commentary endorsed by Governor Murphy during my initial investigation. It is a lengthy document and I will only cite in part the following:
“The hardest part of managing a building department deals with the control of the funding of the department and the funds that are collected in the issuance of permits. The construction official must be cognizant of the budgetary laws which govern ordering products, accepting bids, and controlling spending. For example, all monies collected must be processed within 48 hours of receipt by technical assistants.
REVENUES; the functioning of the enforcing agency is not like most municipal departments funded by taxes assessed by the municipality. Building Department costs are paid for by the fees generated when permits are issued. These fees should be sufficient to insure that costs described above are covered. The department should be self-sufficient.
The Construction Official is responsible for submitting monthly reports, an annual report to the municipality and an activity report to the State. The formats to follow for these reports are to be found in NJAC 5:23-4.17(b) of the regulations.
ENFORCING AGENCY REPORTS; Monthly reports prompt accurate reporting and are important to the successful operation of the municipal enforcing agency. In accordance with NJAC 5:23-4.5(d)1, the municipal enforcing agency must complete two standardized monthly report forms and must transmit them to the Department by the tenth business day following the end of each calendar month. The Department requires that all agencies that issue more than 200 permits per year must transmit their monthly reports electronically.”
I do not recall seeing or evidence of any monthly reports being submitted.
The above leads to the following questions:
- How many building permits were issued in 2019?
- How many building permits were issued in 2020?
- How many building inspections were conducted in 2019?
- How many building inspections were conducted in 2020?
- How many Temporary Certificate of Occupancy exist in the Township?
- What is the average age of the TCOs at this time?
- Who oversees the issuing of TCOs?
- What are the total fees collected from construction permits in 2020?
- Who collects funds for permits administered by the building division?
- Who is responsible for deposit a funds received by the building division?
- Are collections and deposits listed in a ledger by date?
- Are funds deposited the same day of collection or within 48 hours as required by 40A:5-15?
- Who is responsible for the above listed financial duties?
Due to my initial investigation of the Department of Planning and Development and the three divisions within the Department; I believe an investigation by our attorney’s law office is warranted to determine the following:
- Supervision, to create a functional chain of command within our Township Code with recommendations on whose authority sets salaries regarding division heads.
- Determine if Division Heads are the same as Department Heads or Directors.
- Determine if violations exist under 40A:5-15 and if so, identify the responsible party(s) and a course of action to take including disciplinary proceedings if warranted.
- Recommendations for instituting polices and/or directives to prevent any further violations if found to exist, and to improve the effectiveness and efficiency of the Department of Planning and Development specifically the Division of Building.
- A full accounting of monies collected correlated with the respective permits issued.
Council President Shortway said he knows that Mr. Westenberger is new and has had some task and the Mayor speaks very highly of him.
Mayor Burrell explained that because of issues that Council President Shortway spoke about had led to an extensive search for a new head of our building department. Mr. Westenberger holds all five of the licenses that are required in the building department which are fire, electrical, building, plumbing and mechanical. This is important because of inspections that need to be done as well as being present for people who come to the counter for help.
Mr. Westenberger feels that a very big problem in the building department in the past was that the former building inspector was out most of the day doing inspections. He also explained that since this municipality is so busy it needs a Construction Official to be in the building running the department at least three quarters of the day.
Mayor Burrell said that Mr. Westenberger has been here an average of eight o’clock to nine o’clock at night trying to clean things up.
Mr. Westenberger explained that people need to talk to the Construction Official in person and on the phone and there is a lot of administrative work that need to be done throughout the day. Mr. Westenberger said he has had to focus all of his efforts on not only the present day situations but also what has been going on the past year in the Construction Department. He explained that there are tons of permits that have never been closed or closed out in the files. He explained that there are many buildings in town that do not have certificates of occupancy, or they have temporary certificates of occupancy. Mr. Westenberger said many do not even have temporary certificates of occupancy. Also some have temporary certificate of occupancy which are long expired and this is a liability for the town, for the construction department and for the building owner.
The number of building permits issued in 2019 was 2,662 and so far in 2020 2,561 building permits were issued. Mr. Westenberger explained that this is an unusual year because the Governor stopped all non-essential construction by Executive Order in March. Building inspection in 2019 were 4,838 and in 2020 4,186 building inspections have been done so far. For a while inspectors were not allowed to go into houses with the Executive Order.
Council President Shortway would like a copy of these reports sent to the Council.
Council Member Murphy commented that a few years ago the town started using Spatial Data Logic so people could go onto the portal to look up information. It was supposed to be expanded and more information was going to be available and if someone wanted to schedule an inspection they could go online and do this. Council Member Murphy said if we have the capabilities to allow people more access especially during Covid, she would think we would be trying to influence this. Council Member Murphy said she recommended that it be alternated that the Building Department open early so that permits could be dropped off without people having to take a day off to drop them off or prior to going to work. She said that other things have been tried but not to the fullest extent. The Building Department is there to serve the residents of the town and anything we can do to make that easier for everyone is a benefit.
Mr. Westenberger agrees with Council Member Murphy that there is terrible communication in his office. He has tried to make some changes and some of it is coming around now but it is not good. He has a problem with people not answering phones and people leave voicemails and nobody gets back to them. This is a problem and if personnel changes have to be made they will be. The biggest problem is communication.
Township Administrator Charles Voelker explained that when Mr. Westenberger took the job as the Construction Official, it was explained to him that we need to be more proactive in educating residents on how to take advantage of the Spatial Logic portal. Mr. Voelker said Mr. Westenberger has weighed in tremendously and has made a lot of progress but being proactive we would like to put some frequently asked question on the website. Mr. Westenberger has implemented a phone log system for all of the people that call and the department has to follow up within a certain time.
Mr. Westenberger feels that the portal is great but there are a lot of senior citizens that cannot use it. He said that spending an extra few minutes on the phone with someone make a big difference. He said it is great to have the portal and voicemail but nothing works like a one on one interface. Mr. Westenberger said he thinks it is wrong that a Construction Official was not present for the residents the last three to five years. He feels he has made some improvements but it is not perfect.
Council Member Pitsker asked if it is on the radar to improve organizational change to improve the work flow within the department.
Mr. Westenberger answered yes.
Council Member Pitsker agrees that having a quarterly report and every six months having a face to face to bring the Council and public up to date.
Mr. Westenberger said he plans on giving a year-end report in January.
Council Member Pitsker said we have to figure out how we can improve the workflow process and connectivity between Zoning, Land Use, building and permitting so that there is an understandable flow for the public and for the organization.
Mr. Westenberger said he feels he has a good relationship with the Zoning Department and Land Use. His biggest obstacle right now is the County Board of Health and the fact that they are not in the building. He said waiting for prior approvals from them is hard. Mr. Westenberger said that the biggest road to getting a permit in Vernon is his office. He feels the construction office is not turning around permits quickly enough and they are being handled too much.
Council Member Murphy said we have to establish that Mr. Westenberger is the department head in the department and the department is his responsibility.
Council President Shortway asked if we should have the Township Attorney look into this because of the way our code is worded. We may have to have the ordinance reworded He feels that another workshop meeting in January is needed to discuss this further.
Council Member Murphy feels that what also has to be established in January is how the Land Use Board secretary and the Zoning Officer should be categorized.
Open Space Committee
Council Member Murphy feels that when you bring someone in to the Open Space Committee it would be nice to have someone new with different ideas. Whether they are for or again open space they can still bring some new ideas to the public.
Council President Shortway said this is the reason he suggested having two citizens on the committee to get different ideas.
Council Member Pitsker commented that no matter if we have an Open Space Committee or an ad hoc committee we should have list of current inventory of what open space. parcels or easement are available. This should include how the expenses are set up between the 30% and the 70%. In those documents should be their location, the cost of the purchase and what is the current function or activity of the uses before we even bring it to an ad hoc committee so that we know what we have for inventory. Council Member Pitsker said he does not know the inventory.
Council President Shortway said that would be the Open Space Committee’s job.
Council Member Murphy agrees with Council President Shortway because which employee in the municipality will be doing this because it is a tedious task. She feels it is best left to an Open Space Committee.
Council President Shortway said an Open Space Committee is presenting the Council, Governing Body and Mayor with an inventory. He does not think the Council would have enough time to do this when there are so many advocates of open space that would relish this kind of responsibility. Council President Shortway feels this should be included in the Master Plan
Council Member Pitsker commented that if you have a Council Member on this committee you have to be very careful that they have to abstain from any votes at the Township Council level.
Council President Shortway said an ad hoc committee is only there to advise.
Council Member Pitsker feels the term of the members needs to be changed.
Council Member Murphy feels that the Council Member’s term should be changed to a one-year term.
Administrator Voelker reminded the Council that our current Open Space plan has expired and to have the ability to obtain any grant money for open space we have to update our open space plan.
Setting Salary Procedures
Council Member Murphy does not agree with a memo that the Township Attorney sent the Council in reference to who sets salaries. She spoke about the Chief of Police saying that any contract that was made for his salary would have to be approved by the Council and set by ordinance. She commented on the Zoning Officer and she feel that the way it is structured now, they are Division Heads and they will always be Division Heads even if we split the department. Council Member Murphy does not agree that the Construction Officials salary falls under the authority of the Mayor. Council Member Murphy said the only other employees in Administrative Departments that do not fall under Division Head or the Union could be the Confidential Assistant to the Mayor, the Payroll Clerk and the Land Use Board Secretary.
Council Member Murphy said she goes back to the law suit Rinker vs Vernon Township page 11of the summary judgement order, “the amendment to N.J.S.A. 40A:9-165 reflects that the requirement that officers’ and employees’ salaries be fixed by the council by ordinance is applicable except; as to the compensation of employees of administrative departments which are to be fixed by the mayor, pursuant to: N.J.S.A. 40:69A-43a.”
Council President Shortway said there are specific statutes for the Police Chief. He also asked if a Division Head considered the same as a Department Head or a Director of a department. He also does not understand what term lower level means.
Council Member Murphy also mentioned that the Mayor negotiates all of the Union contracts. She feels that the DCA should be involved in determining who sets salaries. Council Member Murphy feels that the way our code is structured has some things to be desired. She feels in the past certain Mayors did not do some of the appointments correctly.
Administrator Voelker pointed out that anything the Council would like to change within the ordinances they have the ability to do as long as it does not violate the law. The restructure that has already been discussed particularly for building, Land Use and zoning is within the purview to decide exactly how that is going to work, who is going to be a Department Head or a Division Head. Mr. Voelker explained that the statute in reference to the Chief of Police read the appropriate authority and that varies depending on the type of Government. He believes in our form of Government it is the Mayor.
Council Member Murphy feels that resolutions should be voted on for salary increases to show the public and to be forthcoming. She said every other year the attorneys had no problem with this and this year all of a sudden it is not on the agenda.
Public Comments (For Current Agenda Items Only, Limited to 3 minutes per person)
Council President Shortway asked for a motion to open the meeting for public comment.
Motion: Jean Murphy
Second: Andrew Pitsker
All members were in favor.
Seeing no members of the public wishing to speak, Council President Shortway asked for a motion to close the meeting for public comments.
Motion: Jean Murphy
Second: Andrew Pitsker
All members were in favor.
There being no further items of business to be conducted on the agenda, a motion for Adjournment was made by Council Member Pitsker seconded by Council Member Murphy with all members voting in favor.
The Meeting of the Township Council of the Township of Vernon was adjourned at 11:34 a.m.
Marcy Gianattasio, RMC, CMR
Minutes Approved: January 11, 2021