LITTLE SILVER – With a preliminary agreement in hand from NJ Transit, the aspiring developer of the borough’s first licensed pub returned to the planning board Thursday.

Kelly 29, LLC had complied with the board’s deadline to return with a letter of intent from NJ Transit to help address the board’s traffic and parking concerns.

According to testimony by developer attorney Jennifer S. Krimko, the agreement with NJ Transit stipulated conditions for one-way traffic flow from the tavern parking lot to the commuter lot, as well as a pedestrian walkway and other safety measures.

“They are basically granting us access (to the lot), subject to us working out whatever terms we need to with the borough,” Krimko said to the board. “This letter is more than just an intention to sit and talk. This is significant. This is a letter of intent outlining the terms that they are willing to enter into an agreement with.”

Krimko added that after meeting with NJ Transit representatives, her impression was that NJ Transit “does not care how the lot is used,” and is willing to turn the negotiation over to the borough, as the only impact will be to the town itself and its citizens.

NJ Transit leases the commuter lot from Little Silver and, according to Krimko, the lease states that NJ Transit is permitted to sublet the lot to another user. However, an agreement could only be reached if the borough is willing to alter the lease agreement and expand the permissions of what the lot could be used for; in this case overflow parking for bar and restaurant patrons.

The developers plan to build a 11,480-square-foot, two-story tavern on a 0.63-acre plot with two bars on the first level and a third bar and outdoor balcony seating on the second floor.

In total, the facility will house seating for 250 patrons and, by ordinance, is required to have 230 parking spaces. The plan calls for just 36 parking spaces on the 51 Oceanport Ave. property, a site that used to hold Pix Shoes. Seventeen of those spaces require a planning board waiver.

This shortfall of 194 spaces is proposed to be balanced by the approximately 550 spaces in the commuter lot of the adjacent Little Silver train station.

The developer’s traffic engineer John Rea said the requirement seemed excessive.

To back his claim, Rea compared the seating of the proposed development with other Brickwall Tavern locations and similar restaurant operations in the area.

Rea said the Brickwall Tavern in Burlington has a seating capacity of 150 and uses 95 parking spaces at peak hours of operation. Additionally, the Brick House Tavern + Tap in Neptune has seating for 250 with only 150 parking stalls.

“I understand that the size of the restaurant, in looking at your ordinance, requires 230 parking spaces, but quite frankly I just think that’s substantially on the high side,” said Rea, of McDonough and Rea Associates.

Rea said he made this determination over 49 observations of the commuter lot traffic over 10 days in 2017. He noted that on three occasions, NJ Transit required his team to complete those commuter lot parking counts during “gridlock alert days,” or days that NJ Transit deems to have overwhelming vehicular traffic, and urges commuters to use mass transportation.

According to Rea, the analysis showed that peak commuter parking in the lot occurs on weekdays, but volume is substantially lower on weekends, when the tavern would be at its busiest.

“I can tell you that (Brickwall’s) peak demand on both weekdays and weekends will be between 7 p.m. and 8 p.m. And at those times there will be at least 300 parking spaces in the train station parking lot that can be utilized,” Rea said.

Project engineer James Kennedy, who last offered testimony in July, was recalled Thursday to revisit the site plan’s parking element and, like Rea, stressed that the commuter parking lot is “an underutilized asset.”

Kennedy also said the proposed two-story structure should not be viewed as a “major development.”

“We’re not generating more than a quarter-acre of new impervious surface. We’re not disturbing more than an acre of property. So this project does not trigger major development criteria of the NJDEP or borough ordinances,” Kennedy said.

Jeffrey B. Gale of Gale & Laughlin, an attorney who represents 15 townhouse owners residing in the Townhomes of Little Silver development located off Oceanport and Sycamore avenues, made a case that not only should the development be considered major, but oversized.

Gale showed that, based upon borough ordinance, a construction in need of 230 parking spaces is only permitted to be 8,182 square feet. The proposed construction is more than 3,000 square feet beyond that permitted size, hence the variance being sought.

In addition, Gale also noted that if parking were to be contained on site and limited to those 36 proposed spaces, the developers would be limited to building a structure no more than 2,286 square feet.

The proposed site of the tavern and the Townhomes of Little Silver are separated by a retail store (Brave New World Surf and Snow) and a series of trees.

Gale’s clients have expressed concern that patrons of the tavern will use their private community as a thoroughfare to backtrack toward Sycamore Avenue via Essex Drive and Eastbourne Drive.

The community members have requested that the developers implement signage discouraging patrons from turning into the community from Oceanport Avenue.

Kelly 29, LLC attorney Jennifer Krimko said such signage could be provided.

According to Kennedy, the tavern would open at 11 a.m. and serve its last drink at 1 a.m., before closing at 2 a.m. He said the last of the cleanup crew and managerial staff would be exiting the building at 3 a.m.

The operation times and potential noise pollution are also a concern for the nearby townhome residents.

The Little Silver Borough Council said it will take no formal action until the planning board does. The hearing is expected to continue next month.