Law & Justice

Belmar Sued by Food Vendor for Alleged Breach of Contract on Two Beachfront Leases

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The south side of Belmar's Rowland Pavilion remains empty as the owners of 10th Avenue Freeze Out, which was awarded the lease to operate there, is suing the borough for alleged breach of contract. Credits: Cathy Goetz
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FREEHOLD, NJ — Belmar is being sued for allegedly breaking the terms of two leases held by the same beachfront vendor.

Hilary and Trent Colanduoni, owners of 10th Avenue Freeze Out, have accused the borough of breach of contract on its new 10-year lease at the recently opened Rowland Pavilion at 10th Avenue and another lease they claim allows them to operate their ice cream concession from a beachfront trailer at 11th Avenue through at least 2020.

The Neptune residents are seeking an unspecific amount in damages for lost business at both locations and other relief, according to the civil lawsuit submitted on August 18 to New Jersey Superior Court, Monmouth County, by attorney Richard Shaklee of Wall.

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In addition to the borough, Mayor Matthew Doherty, Business Administrator Colleen Connolly and the Belmar Council are named in the lawsuit.

In the 10-count civil complaint, the Colanduonis claim that the borough terminated in “bad faith” a five-year extension they had on its lease for a food trailer on Ocean Avenue at 11th Avenue. They had been running the seasonal concession from that location since 2013, after Superstorm Sandy destroyed the 10th Avenue Pavilion, where the business had operated before the October 2012 epic storm.

Citing alleged emails between Hilary Colanduoni and Connelly and Doherty that they said did not dispute the existence of a lease extension through 2020, the owners claim they would not have purchased a $40,000 food trailer if they had known the lease would be terminated before the start of the 2017 season when the new 10th Avenue pavilion was to open. In addition, a resolution passed by the borough council in April 2016 establishing locations for all temporary beachfront concessions for that summer confirms December 31, 2020 as the lease term’s expiration date, they maintain.

However, the Colanduonis said the first time they received official notification they would not be able to operate the food trailer for the current season was in a letter it received from the borough attorney in May 2017, according to the lawsuit.

Beginning with the 2017 season, no food trucks are permitted along the boardwalk with the opening in May of the new Taylor Pavilion at Fifth Avenue and the opening more than two months later of the Rowland Pavilion at 10th Avenue. The Coluanduonis currently do not operate the food trailer at another location outside Belmar, according to attorney Shaklee.

In March 2017, Hilary Colanduoni was awarded the bid to operate an 800-square-foot food concession in the Rowland Pavilion, which also houses the borough’s beachfront public safety operations, including its lifeguard headquarters.

The complaint contends that the owners were instructed that the 10-year lease needed to be executed by May 1, 2017, including $30,555 in rent payments through the end of the year — an amount based on paying 50 percent of the $6,111 monthly rent for six months “in recognition of the tenant-paid fit-out of the premises” and the remaining two months of full rent.

 “Despite the fact that the lease commenced as of May 1 and rent was paid from May 1 forward, keys for the premise were not issued until on or about July 10 2017 — more than two months after the lease start date and well into the summer season,” according to the lawsuit.

In addition, the Coluanduonis claim they were beset by another three-week delay by the borough to issue permits to begin the fit-out construction. “As the result of the delays and inaction by the borough, it is probable the entire 2017 summer season will be lost and that 10th Avenue will not be able to utilize the premises for the purposes spelled out in the lease at all … despite having rent paid from May 1 through the remainder of the year,” the complaint says.

The Colanduonis also claim they have been treated “disparately and differently” from two other businesses that operate similarly along the beachfront — Exit 98, an apparel business that has continued to operate from a “non-pavilion” type of facility directly on the boardwalk since Superstorm Sandy, and Merri-Makers Caterers, which was awarded a 10-year lease for operating its Cruz Bay Café concession in the new Taylor Pavilion at Fifth Avenue.

Although the borough has not yet been served with the legal action, Borough Administrator Colleen Connolly said she was disappointed that the lawsuit was being filed. “I wish they were open right now. We want them to be open,” she said. “It should be a wonderful concession.”

However, she said, a delay by 10th Avenue Freeze Out to “pull their permits” for the fit-out work stalled completion of the concession’s interior space. She explained that “they could have worked parallel to us,” referring to work that was being performed on the municipal public safety portion of the 2,658-square-foot pavilion, before a temporary certificate of occupancy was needed. That portion of the building is now open.

Regarding the terms of the lease arrangement that allowed for a temporary food trailer along the boardwalk after Superstorm Sandy, Connolly said she would need to defer that matter to Borough Attorney Greg Cannon. The borough decided to allow a number of beachfront concessions to operate temporarily from trucks or trailers after the devastation — until the rebuilding effort was completed. “We didn’t want to see (any of the businesses) be crushed by Sandy, so this was a way to allow them to come back,” she said.

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