Planet Princeton Wins Public Records Case Against NJ Division of Alcoholic Beverage Control
A Mercer County Superior Court Judge ruled last week that the New Jersey Division of Alcoholic Beverage Control must pay the legal fees in a public records lawsuit Planet Princeton filed against the agency in January.
Planet Princeton requested public records last October related to a potential liquor license for the former Dinky train station buildings on University Place in downtown Princeton. The Terra Momo Group was selected last year to run a cafe and restaurant in the historic station buildings that will be part of the school’s arts and transit neighborhood, and was seeking a liquor license to sell beer and wine in both eateries.
Each town in the state is allotted a set number of liquor licenses based on the municipality’s population. In Princeton, all of the regular liquor licenses are taken and the last one sold on the open market for more than $1 million. The Terra Momo Group, which operates Teresa Caffe, Mediterra, Eno Terra and the Terra Momo Bread Company, was hoping alcohol could be served at the new eateries by obtaining a special concessionaire’s permit that costs $2,000 a year and is usually limited to concession stands on state property. The state’s Division of Alcoholic Beverage Control would need to approve such a permit.
Princeton Mayor Liz Lempert, whose husband is a professor at Princeton University, wrote a letter to the commissioner of Alcoholic Beverage Control in September in support of awarding a special permit to the Terra Momo Restaurant Group. Planet Princeton received a copy of the letter through the state’s Open Public Records Act (OPRA). Lempert told The Daily Princetonian that she did not see any reason not to intervene, because the University did not ask her to write a letter on behalf of the business, and therefore there was no conflict of interest.
Planet Princeton filed a second public records request with the agency seeking each email, correspondence, and document related to a liquor license at the former Dinky train station buildings.
The Division of Alcoholic Beverage Control denied the request in October, saying the information it had was confidential, proprietary financial information. Agency representatives did not say what specific documents they had in their possession. The agency had a “pre-application” meeting with the Terra Momo Group and the documents were not part of an official application and were therefore not government records, a representative for the agency argued. Planet Princeton objected to the denial but could not reach a compromise with the agency.
Attorney Walter Luers, head of the New Jersey Foundation for Open Government, agreed to represent Planet Princeton and informed the agency of Planet Princeton’s intent to file a lawsuit regarding the records denial. A lawyer for the agency asked Planet Princeton to try to voluntarily get the consent of the Terra Momo Group to release the documents, and claimed the agency had the documents by accident.
In January, Planet Princeton moved forward with the lawsuit. The Division of Alcoholic Beverage Control finally provided the documents in March after getting the consent of the Terra Momo Group and Princeton University, but refused to pay Planet Princeton’s legal fees in the case, arguing that Planet Princeton did not try hard enough to voluntarily get consent from Terra Momo and Princeton University for the documents to be released.
In her ruling Friday in favor of Planet Princeton, Jacobson noted that the burden is on the public agency to fill a requester’s public records request under the state’s Open Public Records Act.
“Nothing in OPRA requires the plaintiff to get the consent of a third party,” Jacobson said. “The burden rests on the agency.”
Jacobson noted that while the Division of Alcoholic Beverage Control staff eventually made efforts to get the consent to release the documents, the staff did so only after the lawsuit was filed. The staff did not make any effort themselves to get the consent before the lawsuit was filed. “The litigation was the catalyst for a change in attitude,” Jacobson said.
She also questioned whether the documents meet OPRA rules limiting the release of trade secrets. One of the documents included a confidentiality clause between Terra Momo and Princeton University. Jacobson noted that the document was shared with the Division of Alcoholic Beverage Control and a copy was left with the agency.
A deputy attorney general said the agency had the documents by accident because the commissioner is “a packrat” and keeps everything. She also argued it is unrealistic for a government agency to consider every document that comes through its doors a public record. She said doing so “would change the way the agency does business.”
But Jacobson pointed out that OPRA is broad, and covers not only each document that is created by an agency, but also documents and correspondence an agency receives in the normal course of business.
The two documents obtained by Planet Princeton as a result of the lawsuit were the Terra Momo’s response to Princeton University’s request for proposals for the arts and transit project eateries, and the letter of intent from Princeton University to the Terra Momo Group to enter into commercial lease negotiations for the restaurant and cafe at the old station.
The letter of intent calls for the University to deliver the cafe to Terra Momo by mid 2014 for construction improvements and the restaurant building by spring 2016. The tenant is responsible for all improvements, utilities and taxes. The exterior of the buildings cannot be modified.
The initial lease term is four five-year terms, for a total of 20 years. The base rent to be paid to Princeton University is five percent of gross sales.
The request for proposal calls for the tenant to use “its reasonable best efforts to obtain and pay for a liquor license at its own expense.”
According to the request for proposal, McCarter Theatre and Berlind Theatre average 150,000 to 175,000 patrons annually. Princeton University estimates in the request for proposal that the Lewis Center for the Arts will host approximately 50 evening performances per year with an average of 150 to 250 patrons per performance.
The 1,000 daily transit riders, 500 residents living within half a mile of the site, 6,050 Princeton University faculty and staff, and 7,750 students are listed as potential customers for the eateries.
“There are also future plans for a residential mixed-use district along the south area of Alexander Street with a 160-290 housing unit capacity,” the request for proposal reads. “The Arts and Transit neighborhood will be activated throughout all day, starting with the first commuters arriving at 5 a.m. to the patrons leaving McCarter at 11 p.m. In addition, late night student traffic can be meaningful.”
The north building, which is 1,814 square feet, will be the cafe location.
“There will be space for interior seating along with exterior seating seasonally. The selection committee is interested in retaining the original character of the interiors and utilizing the existing ticket windows for the service counter,” the request for proposal reads.
The south building will be expanded to 4,735 square feet and will be the site of the restaurant. It will seat 90 to 125 people, with additional seating for 40 to 60 people outdoors.
“The selection committee is seeking an upscale, moderate price point table service outlet for the restaurant and a lower price point self service or hybrid service for the cafe,” the request for proposal reads. “One of the goals of the Arts and Transit project is to activate the neighborhood parts. In keeping with that goal it is Princeton University’s expectation that the eateries be open for lunch and dinner seven days a week.”
There are 730 parking spots in the Princeton University garage nearby called Lot 7. The garage is available after 5 p.m. on weekdays and on weekends to the general public at no charge. Princeton University will provide up to 5 spots in the garage on a daily basis for staff of the restaurant and cafe, according to the request for proposal.
“We anticipate valet parking and deliveries can be accommodated via the designated loading/valet zone on University Place which will have a curb cut’,” the request for proposal reads.
The cafe will serve breakfast, lunch and dinner. Breakfast will include croissants, brioche, focaccia, breads and frittata. A barista will serve assorted Italian coffee drinks. Lunch will feature a Neopolitan style pizza menu, calzones, panini, frittata, and desserts. The dinner menu will be an expansion of the lunch menu. The cafe will include a “sizable” bar that serves mostly wine and beer. The restaurant will serve pasta, meats, salads, sides, and desserts, and include a bread bakery.
Terra Momo states its intention to acquire a liquor license in the request for proposal submission, noting: “If the Princeton University Arts and Transit complex project was able to obtain a smart growth project designation and obtain a liquor license, as awarded to the Teterboro Landing Project, we would negotiate a purchase of that license.”
Is it normal to charge a percentage of sales as rent? Does that not place the University in the position of having a vested interest in an establishment that sells alcoholic beverages?
Yes, it’s called a “percentage lease,” and the percentage of sales usually starts being paid only after a minimum return has been realized. That minimum may be calculated based on the square footage of a commercial property: the lower the size, the lower the threshold? Momo Terra may also pay “triple net” rent: in other words, they would also pay commercial real estate taxes, repairs to the building, and maintenance around it.
Correct me if I’m wrong.
The University owns the property tax free, but Momo Terra pays Commercial Real Estate Tax to operate a business there. They maintain the building according to preservation standards, and maintain the surroundings.
The University remains tax free while essentially operating a profit making enterprise (by proxy of Momo Terra if you will).
They must be expecting an enormous profit to cover those expenses, plus the University’s cut, and they went in knowing there were no liquor licenses available.
Either this was a foolish business decision (out of character for Momo Terra) or there is more going on than meets the eye (in character for the University)
I’m sorry, Blake. I only said that Momo Terra (it may be Terra Momo — I forget) MAY also pay “triple net” rent. The University does keep its commercial property on the tax rolls. They’re legally obligated to do that, of course. There’s currently a lawsuit claiming that they should leave more on the tax rolls than they do, however — also that they’re not really a nonprofit.
Thank you Anne, I did pick up the “may” and I can never be certain about the name of the restuarnt group, most just call it “Momo” but Krystal would have better information on whether it’s a person or a corporation.
The more we talk about the two ton gorilla in Princeton, the more difficult it will be for it to remain invisible.
According to the documents Planet Princeton was awarded, “7,750 students are listed as potential customers for the eateries. . . . In addition, late night student traffic can be meaningful.” So — another place for undergraduates to drink illegally, and another place the municipality will have to pay to police!
Undergrads drink for free at the clubs. I can’t see too many of them drinking at the cafe, which will no doubt be vigilant in checking IDs and overcharge for drinks. I could see them buying coffee or late night snacks though, since Wawa is really the only game in town on that side of campus.
Thanks Krystal, for the intriguing story. Glad you prevailed.
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