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Avon Mayor: Pavilion Lease Is Illegal

Avon Mayor Robert Mahon says the lease is illegal and Hurricane Sandy gave the town the cover it needed to terminate it

The lease between the borough of Avon and the owners of the Avon Pavilion was illegal, and Hurricane Sandy provided the town the impetus it needed to finally terminate it, Avon Mayor Robert Mahon said Monday.

At an afternoon workshop session of the Avon Board of Commissioners attended by an audience of about 70 mainly supporters of Rob Fishman, Avon Pavilion owner, Mahon interjected into a public comment period his reasons for making the controversial move a week ago.

But at Monday’s meeting, Mahon provided a different explanation on why the lease was terminated: It was simply illegal to have what he called a 25-year lease. State law, he said, allowed only 10 years.

“My problem with the lease is that it’s illegal,’’ he said. “We have been advised by more than one attorney that you can’t have a 25-year lease.”

Commissioner Frank Gorman emphatically agreed.

“I couldn’t have said it better myself,” Gorman said. “I am in lock-step with you sir.’’

The lease between the borough and Fishman has a term of five years, with two 10-year options thereafter. Fishman had three years left in his first option when the commissioners revoked it.

Numerous audience members — both Pavilion supporters and employees — called out the mayor and Gorman for revoking the Pavilion’s lease. Commissioner Robert McGovern cast the lone vote against.

“I am stunned by your remarks Mr. Mayor,’’ said Roger Domal, of Woodland Avenue. “I have no idea why you are terminating this lease, at this time. If you do not reverse this decision I’m pounding a ‘For Sale’ sign right out front and I’m getting out of town. This is terribly wrong.’’

About a dozen people spoke at the meeting during the public comment portion. Only one supported the Mahon and Gorman votes.

While some audience members questioned the timing of the lease termination, Mahon said the timing was “opportune, since the business cannot operate this summer.’’

Earlier in the meeting, the Commissioners discussed what, if any, amenities would be available on the boardwalk for the summertime crowds come Memorial Day. There was some lengthy discussion, but no clear direction, on what would be available, especially on the north end of the boardwalk where the Pavilion once stood.

Dennis Collins, Wall Township-based attorney for Fishman, said Mahon’s comments comprised “intellectually dishonest” discussion.

Collins said that the borough in a lawsuit brought by a third party just shy of two years ago defended Fishman’s lease as valid.

“And to stand here today, after superstorm Sandy and suggest that this is a good time for someone to tell you whether the lease is good or not – that ship sailed quite some time ago,’’ Collins said.

Collins last week notified the borough of his intent to sue if the commissioners did not reverse their decision to revoke the lease in a strongly worded letter. He reiterated that threat at Monday’s meeting.

The termination of the lease prompted swift action from legions of Pavilion supporters. An online petition was set up aimed at urging the Commissioners to reverse their decision. One week after setting up, the petition had more than 1,600 signatures.

Fishman, who attended Monday’s meeting, said he was still reeling from the Commissoners’ decision.

“I’m stunned,’’ Fishman said. “Just stunned.’’

jerseyswamps February 05, 2013 at 11:18 AM
It seems Patch is following this story. How about an explanation why you erased comments and a link from someone who alleged all kinds of shady behavior by those involved with the lease of the Pavilion? Locking in a 25 year lease does seem to be a sweet deal for the operator and may not be in the best interest of Avon taxpayers.
Beryl Cusic February 05, 2013 at 11:46 AM
really? the running of a profitable business is not in the best interest of Avon? What would you sugggest would be? The two councilman need to realize that you cannot be in agreement with something "Illegal" , profit from it and then call "illegal" to suit your own needs. These clowns will not be re-elected.
Guntoter66 February 05, 2013 at 12:00 PM
I have known Mayor Mahon for many years, and I am both shocked & sorely disappointed at his decision. I guess whoever said "Politics make strange bedfellows" was right. Hey Frank! "Lock Step" sounds a lot like "Goose Step" doesn't it?
jerseyswamps February 05, 2013 at 12:45 PM
Running a profitable business on the backs of Avon taxpayers? Is that what was going on all these years? Why can't he run a profitable business AND pay fair market value for the location? A 25 year year lease with very "favorable" terms warrants a closer look.
Beryl Cusic February 05, 2013 at 02:13 PM
First of all, the lease , I am quite sure, was read by borough attorneys thoroughly before it was signed. Please, on the backs of Avon taxpayers?? Nice try. That lease was negotiated and signed by the borough. How will it effect the "taxpayers" backs when the borough has to pay damages in the lawsuit that will surely come of this?
Michael Ferrell February 05, 2013 at 02:19 PM
Not a bit surprising that the story is changing, and will probably change again. So if the lease was illegal to begin with, who was responsible for that? Also wouldn't it be fair to work with the current business owner and give them a chance to renegotiate for the "legal" 10 year term? And why didn't the commission take action to remedy the illegality earlier? Sandy is a cover for sure... a cover for mismanagement, and also for what looks like an opportunistic move to open the lease to a wider audience at higher prices. It begs to quesiton what the real motivation is in the termination.
Begonias February 05, 2013 at 03:03 PM
According to my calculations this lease is on its 13th year. i would love to be paying rent based on market rates from 2000! Maybe the board made an unpopular yet courageous and fiscally-responsible move?
jerseyswamps February 05, 2013 at 05:11 PM
Borough attorneys are appointed. There is always some wiggle room with contracts so the attorney better interpret things the way borough officials want them to go. A contract is legal only if someone doesn't challenge it. That's why we have lawyers and courts. Ocean front location? 25 year lease? What was the fair market value of that location? It isn't like Avon was a disaster zone after the riots and this place brought Avon back. Avon was always a desirable location. Why the sweetheart deal?
jerry moore February 05, 2013 at 05:16 PM
I see some people making assumptions about this lease being a 'sweet deal' etc. Unless you've read the lease you don't know the details, just because it is a long term lease, don't mean it's at a static rate. Anyone in business knows that most longer term business leases contain provisions for increasing the lease payments over time. They can be linked to Cost of living, or raises in property taxes. What I find interesting is Mayor Mahon's explanation as to the lease being 'illegal', What new legal findings did Sandy wash onto Avon's shores? Prior to Sandy, Avon was accepting the 'Illegal' lease money every month, according to the Mayor's comments if Sandy hadn't came along they'd still be gladly participating in this 'Illegal' lease. So did Sandy wash up a new Legal sense in Avon council? Did she wash up on Avon's shores a new morality that precludes them from immorally participating in an 'Illegal' lease? Or did Sandy merely uncover corruption in Avon borough council?
jerseyswamps February 05, 2013 at 05:32 PM
The copy of the lease I see here on Patch was signed 12 years ago. Did Avon have the same Mayor, Borough attorney and Council members 12 years ago? Do all new Borough officials review all old but existing contracts when they come into office? Probably not if it's business as usual, no problems, no one making noise. But then when a mega storm comes along and washes things away and a lease holder says "here's my plans to rebuild and you have to pay for it" I think the responsible thing to do is to examine that lease. So yes, Sandy was a game changer.
jerry moore February 05, 2013 at 06:42 PM
After skimming over the lease I do not agree with Mayor Mahon on this being an Illegal 25 year lease, the initial lease was for a period of 5 years, renewable after that term for 10 years, providing the leasee abidided by all terms & paid all payments. This sounds like seperate lease terms laying the groundwork as to the legal reasons the borough might refuse a re-signing of the lease. As for those of you thinking the leasee is getting a 'sweetheart deal' on this lease, it states in the lease that it will increase annually to 105%, meaning 5% increase compounded annually. At that rate the lease payment would almost DOUBLE in 15 years. NOT so 'Sweetheart' HUH? I did not see any thing that makes me think this is a 25 year 'Illegal' lease as the Mayor said, it seems it is 5 Year, renewable for 10 years twice, actually three seperate leases & is binding for renewal only as long as leasee abides by terms & prompt payments. Now the Mayor did not cite wrong doing or breech as the reason the borough is terminating the lease. He said 'Illegal contract', I don't see that, & once again up to this point the borough, & the council was accepting the payments, meaning they were participating in this illegality, until it becomes convenient for them to thumb their nose at the contract. Which once again begs the question...Why Now? I smell a rat, whose pockets are getting lined by the new future arrangments? I'll bet it's NOT THE AVON TAXPAYERS!
J February 05, 2013 at 06:59 PM
I suspect the editors were concerned about exposure to libel claims.
jerseyswamps February 05, 2013 at 08:24 PM
Five year lease with two 10 year options. He locks the place up for 25 years. That's pretty much a one sided 25 year lease. He can walk after the first 5 years or after the second option. 25 years ago the then Mayor and Borough attorney had a fiduciary responsibility to negotiate contracts and leases that were in the Borough's best interest. If the current Mayor and attorney believes the old lease is flawed then they have the same responsibility to try to set it right. That might be an old rat you are smelling.
k enneth samuels February 05, 2013 at 10:06 PM
I only wish you could have seen the premises when the deal was made!!!! You only see the end product and think of the Avon Pavilion how it is now!! Why didn't you or anyone else think it was a sweet deal when the building was a horrible wreck and it had garage doors and holes in the floor. Now after they put in hundreds of thousands of dollars and countless amounts of sweat equity and build a PHENOMENAL business now it's a sweet deal. It seems to me that when he got the deal maybe the mayor and commissioners were looking out for the best interest of the town by making a deal that would keep a top notch operator that's a perfect fit for the community at the location. A long term Win WIN situation!!!!!!! Think about it!!!!!
jerseyswamps February 05, 2013 at 10:37 PM
I know this place. I've lived in the area my whole life. I go there probably 2-3 times a month for breakfast when it is open. Very nice. "They put in hundreds of thousands of dollars"? Where? Most of the place is a tent, the floor is part of the boardwalk. No restroom. You have to exit the place and go around to the back of the place and use an attached public rest room. That's OK. Charming, I suppose. But $100,000's ? I don't think so. I bet his plans for a new place he expected the taxpayers to pay for was worth many $100,000.
florence ray February 05, 2013 at 10:51 PM
i cant believe what avon politics is doing to the avon pavillion they are a wonderful bunch of people and think of the college kids that worked there and now have no jobs how many people do u think will su pport the avon beach now with no facilities or a place to eat it was nice to walk up there in the evening for a ice cream and listen to the music kudos to the belmar mayor for helping his vendors BRING BACK THE FISHMAN FAMILY AND THE AVON PAVILLION they built that place up with his late parents they must be turning in their graves dont any of u have a conscience to see the good they bought to this town
jerry moore February 06, 2013 at 04:29 AM
If they're going to 'Set it Right' the currant lease term ends in 3 years, they're in the middle of a legal obligation now. What vendor or business is going to want to sign ANYTHING with Avon now, knowing they don't honor their obligations. What are they 'setting right' anyway? There is no mention of any fault by Mr. Fishman to honor any agreements, The Mayor & Councilman Gorman just decided to do what they want, for no viable reason, if there is such a reason they should make it known, Taxpayers are paying the bills & have every right to know what is being 'Set Right'. Mr. Gorman is in 'Lock Step' with the Mayor...'Lock Step' isn't that a term that was used in Nazi Germany...Just Saying... Karma will punish they're shenanigans.
jerseyswamps February 06, 2013 at 08:15 AM
Do you really expect the town to try this thing in the press? If Mr. Fishman was so wronged he'll do very well with the town paying for a new place built to HIS plans, attorney's fees, loss of business, etc.
Beach Bum February 11, 2013 at 12:15 AM
I have been going to the Avon beach with my family for 45 yrs. Each year the fees go up but we still return to Avon. If there is no Pavillion I am certain we will strongly consider another beach. By the way, if you do rebuild, you may want to consider adding on a few more bathrooms.
Mary Jo Alburtus May 19, 2013 at 06:17 PM
What goes around, comes around Avon needs to watch not to get too big for its britches.Whatever the ins and outs of the prior leases, the bottom line is that the Avon Pavilion brought many people to the boardwalk and the Fishmans became an integral part of summers in Avon. This all could have been handled in a more professional and respectful way between the parties but it sounds like a decision was made behind closed doors. .I,for one, may rethink the beach I sit on. For those of us who remember Skopas's in the 50's and 60's and the original and very ragtag building and business that it inhabited, I daresay, in contrast to the "swamp" guy who seems to think he knows so much, there is no doubt that the Fishman's additiions were clearly an asset.There are, in fact, restrooms, in the building along with a lovely boutique run by a family member.Perhaps there can be some improvements but why throw the baby out with the bathwater? And why is it that two politicians get to pronounce on something that the public is clearly telling them it feels differently about? One more sign of the hubris in politics these days.

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