Morristown board rejects objector request to subpoena parking official for Powerball winner restaurant plan

The former Orchard Glass, site of a proposed soul food restaurant in Morristown. Photo courtesy of Jack McDonald.
The former Orchard Glass, site of a proposed soul food restaurant in Morristown. Photo courtesy of Jack McDonald.

The Morristown planning board unanimously has declined to subpoena the town’s top parking official to testify at a hearing involving a Powerball winner’s proposed restaurant.

An objector contends testimony from Morristown Parking Authority Executive Director Michael Fabrizio is necessary to clarify whether there is enough off-site parking for Sandi’s SoulBites, the soul food restaurant pitched by 2010 Powerball jackpot winner Sandra McNeil Rogers for the former Orchard Glass repair shop at 51 Bank St.

Board officials contend a letter from Fabrizio is sufficient.  They say they cannot recall any precedent for subpoenaing witnesses, and they do not intend to set one.

“I’m perfectly comfortable with our practice” of accepting letters from the parking authority, board Chairman Joe Stanley said on Monday. 

Rogers seeks a zoning variance to operate without providing any parking; she has indicated she intends to cater largely to a weekday lunchtime business crowd. Based on the 84 seats proposed for the eatery, the town requires 42 parking spaces on-site.

Rogers’ attorney, the former Mayor Jay DeLaney Jr., has submitted a May 2017 letter from Fabrizio stating that public parking should accommodate patrons of Sandi’s SoulBites.

Some 180 on-street spaces are within 1,000 feet of the site, along with limited spaces in the Ann-Bank and DeHart street garages and “substantial” availability in the Dalton garage on Cattano Avenue, Fabrizio wrote.

“Overall, we anticipate that given the capacity, limited hours of operations, the absence of a liquor license and that many lunchtime patrons are already in town there will be adequate parking in the area…to serve the needs of the project,” Fabrizio concluded.

But Heather Suarez, attorney for objector Jack McDonald, wants to cross-examine Fabrizio about his calculations. McDonald owns a nearby building leased by RevHealth, and has expressed concerns about restaurant patrons using his parking lot, and about cooking odors.

Suarez this month asked the planning board to subpoena Fabrizio. The parking authority’s lawyer, Robert Goldsmith, asked the board to deny the request.

For approximately 30 years, MPA letters have conveyed “accurate information… routine analysis” of parking data, Goldsmith wrote to the board last week.

“This should be more than sufficient for the Planning Board to exercise its
judgment. Requiring the Authority’s Executive Director to testify and be subject to cross examination through issuance of a subpoena would be an unnecessary burden to Mr. Fabrizio and would set an unwise precedent,” Goldsmith wrote.

Terming that argument “weak,” Suarez suggested some people might be offended that a government official would consider testifying as “an unnecessary burden.” 

“The subpoenaed individual…serves the citizens of the Town of Morristown. Our firm is simply seeking to have a government official for the Town of Morristown provide information to the Planning Board,” Suarez wrote to the board last week.

Fabrizio told Morristown Green he stands by his letter, and referred further questions to Goldsmith.

Suarez said Readington Township’s planning board does not consider letters as admissible evidence. Morristown’s denial could be considered “arbitrary, capricious and unreasonable” if her client challenges it in court, Suarez asserted.

But after conferring in closed session with board Attorney John Inglesino, Morristown’s board on Thursday decided against subpoenaing Fabrizio.

“There is no reason to doubt what what was in the letter,” said board Chairman Joe Stanley, who has served on the board since 2002, during a period of intense development in Morristown.

Stanley said he cannot remember anyone asking the board to subpoena information.

“I don’t know what would be gained by subpoenaing someone to come and disrupting their schedule. We’ve had a good relationship with the parking authority and there is no reason to doubt what they say,” he said.

The board will weigh all evidence for the variance request, Inglesino said. The burden is on Rogers, the applicant, to prove why she needs the relief, he said.

“My case will speak for itself,” said her lawyer, Jay DeLaney Jr. “We think we can justify why she doesn’t need any parking on-site.”

He intends to present testimony from planner Charles Heydt when the hearing resumes on Sept. 28, 2017.

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