Borough Closes Business Down By Revoking C.O.
By Saul Qersdyn
Published: October 3, 2013 @ 5:00 PM EDT
The latest chapter in a matter that started exactly one day and a year ago in September of 2012 played itself out the Friday evening of September 27th as Regina “Jeannie” Mendes Doman – the namesake behind her business – along with her clients, helped her temporarily move out of “Easy Fitness With Jeannie”, located at 293 West Clay Avenue, and into her old location in Union Township in order to continue running her business while the matter works itself out. The reason for the move was that Jesse Atwell, Roselle Park’s current Code Construction Official, revoked the Certificate of Occupancy (C.O.) on September 18, 2013, which, in effect, closed the business; all this before Regina can have her day in court to address the charges for which she was shut down.
Now the talk about this ranges from a business owner being caught in the middle of a dispute between two property owners: Gilda DeIorio – who owns the business to the west of Easy Fitness With Jeanie – and George D’Agastino – the landlord of the property who has a lawsuit pending against the borough, to a flagrant abuse of zoning laws from Jeannie, to a conspiracy to stop businesses from coming into town. The history and back story will be published in the second of three series of articles.
But, going back to September 26, 2012, a Waiver Of A Site Plan for a change of tenancy was signed and certified by the Borough’s previous Code Construction Official, Richard Belluschio, as well as the municipality’s previous Zoning Officer, Sandy Capaldo. The waiver stated that the Change of Use application for Easy Fitness With Jeannie was reviewed and approved by both Borough employees and they certified that according to the standards set in Section 128-39C and Ordinance 2232, review by the Municipal Land Use Board (MLUB) for this application was not needed.
This is important because some years ago the municipality, in response to the criticism of not being business-friendly, established a waiver to allow businesses who would not radically change the use of a property to avoid the wait and financial expenses of going before the MLUB for a variance – which would then decide if a change of use would be approved.
On February 15, 2013, a summons was issued by the Municipality’s Code Enforcement Officer Carl Pluchino citing that the business was converted from “a filed nutritional counseling service to a fitness center without a Certificate of Occupancy”. Jennie has stated that her business falls under a nutritional counseling service which provides nutritional counseling, health workshops, dietician services, chiropractic care, massage therapy, as well as small-group fitness classes which includes use of weights, stationary bicycles, and treadmill, but they are part of the nutritional counseling as an all-encompassing program and it is not a gym where people can come in and simply work out whenever they want.
The Borough Code used for the summons, 40-3103(b), reads “No building structure, premises or lot, or part thereof, shall hereafter be constructed, erected, created, converted or enlarged, wholly or partly, in its use or structure, unless a certificate of occupancy, as hereinabove defined, has been issued by the Construction Code Official of the Borough.”
The allegation appears to be that the business was inspected and the C.O. was issued in October and that after that time, the use was changed to a fitness center. Jeannie claims that she never changed the use of the property and the construction was always to include an exercise area.
To offer background on the matter, the NAICS (North American Industry Classification System) needs to be explained. NAICS is the standard used in Roselle Park to classify where certain businesses can be located in the borough depending in what business zone they are located in. The major areas for businesses are B-1, B-2, and B-3. Easy Fitness With Jeannie is in what is listed in a B-1 zone. While both B-2 and B-3 have explicitly stated “Prohibited Uses” and clearly defined “Permitted Uses”, the B-1 has no section offering what is prohibited and only a subsection named “Principal Permitted Uses”. The NAICS codes permitted in B-1 are banks and financial institutions (5221); existing residential dwellings; dwellings located on the second floor of a mixed-use building; funeral homes excluding crematories (812210); institutional and public uses (6111, 71211, 8131 and 92), professional, business and administrative offices (6211, 6212 and 6213); restaurants excluding exotic and/or pornographic entertainment or activities and excluding drive-in restaurants (722110); hair, nail and skin care services (81211); retail services; building materials and garden supplies (444), convenience stores (445120.); miscellaneous store retailers excluding manufactured (mobile) home dealers (453); and accessory uses that are customarily incidental to a principal permitted use. Additionally, the purpose of the Neighborhood Business Zone (B-1) is to promote development in neighborhood business districts that complements the uses and scale of the surrounding residential neighborhoods. Easy Fitness With Jeannie was listed as 621399 (Offices of All Other Miscellaneous Health Practitioners), a listing which includes a nutritionists’ office or center as well as a dietician’s office or center.
The argument against the business is that a fitness center – NAICS Code 713940 – does not fall within the ‘principal permitted uses’ of the B-1 zone.
This bring Ralph Ortiz into the issue. Ralph is a resident of Roosevelt Avenue, a street that is directly perpendicular to Easy Fitness With Jeannie, who started a petition to stop the opening of the business “until such time as compliance with regulations” was determined. This petition was signed and received by the Borough Clerk’s office on November 16, 2012, 10 days before Jeannie ever opened for business.
Ralph Ortiz also happens to be, and was at that time, a member of the Roselle Park Municipal Land Use Board (MLUB); the board that would grant a variance if ever Easy Fitness With Jeannie would submit an application to be heard.
Although it is understood and it has been stated on the record that Ralph Ortiz would recuse himself from such hearings, in his petition to stop Easy Fitness With Jeannie from opening, Ralph never mentioned that he is, in fact, a government official in the capacity as a member of the MLUB; nor did he do so when speaking during the public comment portion of the Mayor & Council meeting in August. Additionally, Ralph, nor any other resident who signed the petition or commented for two articles published by “Union County LocalSource” on April 12, 2013 (link 1) and August 18, 2013 (link 2), were ever mentioned by name – with Ralph and others simply being referred to as the collective ‘residents’. That petition – which was signed by 43 residents – later turned into a 19-resident signed petition, reportedly after 24 people (55%) asked to have their names removed from it once subpoenas were issued by the municipality calling residents as witnesses for the prosecutor.
The problem became compounded when Ralph distributed a letter to his neighbors stating that “the borough Attorney Richard Huxford is on a fact finding mission in preparation of his case on our behalf.” and that the meeting, to be held on Monday, March 4th, would be held at Borough Hall. Borough Clerk Doreen Cali, Municipal Attorney and Prosecutor Richard Huxford, as well as Councilman Modesto Miranda and Code Enforcement Office Carl Pluchino all stated that they had no knowledge of such a letter. Once the correspondence was forwarded to them on Friday, March 1, 2013, the meeting was canceled as the letter sent by Ralph implied that the municipal attorney was working on behalf of a group of private residents as opposed to the municipality – and thereby the State of New Jersey. It was after this canceled meeting that subpoenas were issued.
Ralph has himself become frustrated by what he has seen as a lack of action from the municipality on his concerns and, in providing his reason for his petition and concern regarding Easy Fitness With Jeannie, stated it has been about the impact that any business with an active clientele, not particularly Easy Fitness With Jeannie, may have on the neighborhood. He said, “I just don’t want a bad situation becoming worse.”
As listed in his letter to his neighbors, Ralph stated that he had concerns about the increased parking and traffic brought about by the business, although Ralph has said he has neither checked parking as an issue after Jeannie was temporarily closed nor during the weekend evenings when Easy Fitness With Jeannie was not opened. Additionally, Ralph stated that he had not thought of creating his petition until he was notified by someone that a possible violation of the B-1 zone existed with the business.
Then there are the two articles by the Union LocalSource that contain numerous errors, ranging from the innocuous to the unsubstantiated which raise issues of providing all sides of the issue. A listing of such errors are listed below:
- Three references to Russel Street – no such street exists in Roselle Park and the presumption is that the article is referring to Roosevelt Street.
- The petition is cited as having been signed by 80 residents – there were only 43 signatures on the petition submitted to the Borough in November of 2012.
- It stated that the petitioners believed the applicant “falsified” her application in order to avoid going before the zoning board for a change of use – no such statement exists in the OPRA’d petition provided to Roselle Park News
- “The summons, though, was backdated to Nov. 30, 2012″ – the summons read that the infraction simply occurred on November 20, 2012 and was dated February 15, 2013.
- As residents noted, after requesting documentation through OPRA requests, borough attorney Richard Huxford did eventually address the issue in a letter to the owner of Easy Fitness with Jeannie on Dec. 7, 2012, following with additional letters Jan. 14 and Feb. 1″ – In an OPRA request filed by Roselle Park News for correspondences filed from November 2012 through September 2013, no letters were initially provided for any of the three (3) dates listed. A second clarification request from Roselle Park News to the Borough Clerk’s office on the matter resulted in receipt of the aforementioned dated letters although it cannot be determined if these letters were delivered to Jeannie as she stated that she had never seen them nor are the letters on file signed (correction link).
- “Adding insult to injury, said the West Clay Avenue resident, is Doman has now added to her business by bringing in a chiropractor and massage therapist.” – both uses noted in the article are actually in compliance with businesses allowed in the B-1 zone.
- “(Jeannie) Mendes Doman, did not return calls regarding seeking comment.” – according to Jeannie, she never received any phone calls asking for a comment.
And therein lies a big part of the problem. All along, Jeannie has been willing to provide her side of the matter – to Ralph Ortiz, to the municipal court, and even to the LocalSource, but Ralph stated he has never spoken with Jeannie and the court case has yet to be heard. The initial court date was scheduled for February 15, 2013 but had to be heard by another judge; then it was postponed until April 25, 2013; then again till May 21, 2013 once subpoenas were issued. On that date, Palumbo & Renaud, Jeannie’s attorneys, sent a letter to the judge asking to be heard in the matter as opposed to a recommendation to have the matter heard before the MLUB. Jeannie was afraid that with two pending summonses, anything testified to during a variance hearing, could be used in any pending case for either summons. Since then there has not been another court date set for either summons.
To continue with the timeline of events, during the first week of July, the municipal fire inspector showed up and performed an unscheduled site inspection. The business was not cited for any violation.
On August 12, 2013 that a letter was sent from Jesse Atwell stating that after performing an inspection, he found that the business was a gym and not a Health & Nutritional Counseling Center. In the letter, he requested that documents be sent to his attention so he could review the documents; if no documents were received, them he stated that he would revoke the C.O. for the business. Jeannie’s attorney responded on August 21st that they would be willing to meet with Mr. Atwell to review the matter but that there was a pending court case which had not been heard yet and that recalling the Certificate of Occupancy would, in effect, pass judgment before being heard in court.
The next correspondence from Jesse Atwell came on September 18,2013 revoking the Certificate of Occupancy for Easy Fitness With Jeannie. That is when the doors were closed with the threat of a $2,000 fine if it is re-opened.
A year later and no action has been taken by the municipality to help a business not just set up shop but remain open, when such action has been taken before. As a point of reference there are two instances when a business that was not zoned for a specific area simply had their type of business added to the business zone so they could open up without having to go through the bureaucracy of applying for a variance. The first one was “Roselle Bark” a pet grooming business which, right before opening and realizing that they were not zoned for such a business, had an ordinance voted by council and approved in November of 2012.
The second instance occurred when, curiously enough, fitness centers were added as permitted use in the B-2 business district in February of this year.
A curious twist to this matter (which delayed this very article before its announced press time of noon today) came in the news that the recently appointed Zoning Officer, Robert Herbert, who was hired just two months ago on August 15th abruptly resigned his position leaving the municipality, as of this morning, with no Zoning Officer. Sources state that the reason for the resignation had to do with “professional differences” that were related to the variance application submitted for Easy Fitness With Jeannie.
So now, the matter is moving along with Jeannie working on funding the expenses needed to go before the MLUB to have the matter heard through a variance hearing, Jeannie still asking when the next court date will be set, parking still being an issue after her business was closed down, and another business in danger of closing up shop permanently in Roselle Park with no special meeting having ever been called to help a business, as was the case with the hiring of Jesse Atwell earlier this year in order to help businesses open by having him sign C.O.s that the previous Code Construction Official refused to sign due to issues with the wording of an ordinance (link 3).
All the while, no forethought has been given that such administrative action of revoking a Certificate of Occupancy – something that has not been done in such a manner as far back as people can remember – has sent an unsettling message to potential business owners, entrepreneurs, and investors – with those thinking about setting up shop in the borough thinking twice, wondering if their C.O. will be revoked a year after being issued.
(Editor’s Note: This is the first of a three-part series of articles. The second article in the series will be published once OPRA requests for audio files and other relevant documents are provided.)