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A regular meeting of the Planning Board of the Township of Roxbury was held on the above date at 7:30 p.m. with Chairman Scott Meyer presiding.  After a salute to the Flag, the Chairman read the “Open Public Meetings Act”.


BOARD MEMBERS PRESENT:  Scott Meyer, Larry Sweeney, Jim Rilee, Michael Shadiack, Steven Alford, Charles Bautz, Gary Behrens, Lisa Voyce.  Teresa DeVincentis arrived at 7:35 p.m.


ABSENT: Richard Zoschak, Joseph Schwab.


PROFESSIONAL STAFF PRESENT:  Tom Germinario, Russell Stern, Tom Bodolsky.


Also present:  Dolores DeMasi, Board Secretary


Mr. Meyer announced application S-19-05 – Auto Zone will not be heard and is carried to 9/7/05.


Minutes of 7/6/05 and 7/6/05 executive


Mr. Rilee made a motion to approve the minutes.  Mr. Sweeney seconded.


Discussion.  Corrections noted and made.


Roll as follows:  Mr. Rilee, yes; Mr. Sweeney, yes; Mr. Alford, yes; Mr. Shadiack, yes; Mr. Behrens, yes; Ms. Voyce, yes; Mr. Bautz, abstain; Mr. Meyer, yes.






                                               ROXBURY TOWNSHIP PLANNING BOARD

                                                                   RESOLUTION OF MEMORIALIZATION


Approved:  July 20, 2005

 Memorialized:  August 3, 2005




BLOCK 6201, LOT 5



WHEREAS, American Renaissance Plaza Assoc. LLC (hereinafter known as the "Applicant") applied to the Roxbury Township Planning Board (hereinafter known as the "Planning Board") for final major subdivision approval on December 4, 2004; and


WHEREAS, the application was deemed complete on 7/20/05; and


WHEREAS, a public hearing was held on 7/20/05, notice being required, at which time the Planning Board rendered its decision on the application; and


WHEREAS, it being determined that the Applicant has complied with all of the rules, regulations and requirements of the Roxbury Township Land Development Ordinance and that all of the required provisions of the compliance have been filed with the Planning Board; and


WHEREAS, the Planning Board has made the following findings and conclusions based upon the testimony and documentary evidence produced by the Applicant and by the Planning Board staff:


1.  The subject property consists of a total of 6.337 acres divided between the AH-3A and AH-3B Districts.  The AH-3A Affordable Housing District contains 2.57 acres located adjacent to Lakeside Village and the AH-3B Affordable Housing District contains 3.76 acres located adjacent to the Dellamo tract.  Situated to the west is Drakes Brook and Emmans Road Park, to the north is the Dellamo tract, to the east is Ledgewood Mall and to the south is Lakeside Village and Willow Walk pond.


The property, now known as Willow Walk II/Renaissance Plaza, was previously approved for a three-story 69,768 square foot office building as a component of the original Willow Walk development.


By Resolution approved 10/24/01 (memorialized 1/9/02), the Applicant was granted a preliminary site plan and major subdivision approval.  A three-story, 35-unit low and moderate income Mt. Laurel rental building is to be constructed on 2.57 acres in the AHA District, and 42 market-rate units (12 townhomes and 30 manor homes) are to be constructed on 3.76 acres in the AH-3B District.


The Applicant is now before the Board seeking final major subdivision approval to divide the tract into the respective 2.57-acre and 3.76-acre parcels.


2.  In support of its application, the Applicant submitted preliminary site plan and final subdivision plans consisting of 13 sheets prepared by Schoor DePalma bearing a revision date of 7/1/05.  The Applicant also submitted final subdivision plat prepared by Schoor DePalma bearing a revision date of 7/1/05.  A report concerning the application were submitted by the Planning Board Engineer, Thomas Bodolsky, dated 7/15/05.


3.  At the public hearing of 7/20/05, the Applicant was represented by Steven J. Tripp, Esq.  Mr. Tripp noted that the Consent Order requires that the affordable housing obligations relating to this project will be binding on any subsequent owners of the subdivided parcels.  He stated that the Applicant was seeking final subdivision approval to facilitate DCA approval of the homeowners association documents and to enable Applicant to record the master deed.  Mr. Tripp referred to his letter of July 20, 2005, which details the status of the various easements depicted on the final plat.  It was agreed that the final plat would not be filed until the easements have been approved by the Township Board attorney and those easements running to the Township have been accepted by the Township Council.  The easements will be filed prior to or concurrently with the filing of the final plat.  Applicant also agreed to either pay under protest the off-tract contribution currently assessed by the Township Engineer or pay a mutually agreeable adjusted amount prior to filing the final plat.  The Applicant agreed that the previous preliminary site plan approval for the office complex would be abandoned.  Susan Berninger stated that the Applicant would make the revisions to the final plat indicated in Mr. Bodolsky’s report.


A motion was made to conditionally approve the application based on the recommendations contained in the report of Mr. Bodolsky, as modified and supplemented in the course of the hearings, which motion was duly seconded and favorably acted upon.


NOW, THEREFORE, BE IT RESOLVED, that the Planning Board does hereby approve the final major subdivision as described in the drawings referenced hereinabove.


This approval is subject to the following terms and conditions, which shall, unless otherwise stated, be satisfied prior to the Board=s signature of the final subdivision plat:


                                1.  The parcels created hereby, regardless of their ownership, shall remain subject to all requirements of the Consent Order between Wellfleet Developers, Inc. and the Township of Roxbury and the Planning Board of Roxbury, filed January 2, 1997, as modified and supplemented by subsequent Court Orders, and to all requirements of applicable developers agreements with the Township of Roxbury, as such agreements may subsequently be amended.


                                2.  All easements depicted on the final plat shall be recorded prior to or concurrently with the filing of the final plat, to the extent that they are not already recorded.  Prior to the Board’s signature of the final plat, all such easements shall be approved by the Planning Board attorney, to the extent that they have not been approved already.  The easements running to the Township shall be approved by the Township Attorney, to the extent that they have not been approved already, and be accepted by the Township Council.  Rights of access via the internal roadway network to the utility easements shall be provided for the benefit of the Township.


                                3.  All improvements depicted on the final site plan, shall be bonded by the Applicant, with the exception of the buildings.


                                4.  Applicant shall pay in full its off-tract contribution as determined by the Township Engineer.  The Applicant may pay the previously-determined amount under protest or make an unconditional payment of an adjusted amount mutually agreeable to Applicant and the Township Engineer.


5.  Except as expressly provided herein, all conditions of the preliminary site plan and major subdivision Resolution memorialized January 9, 2002, shall remain in full force and effect.


                                6.  Upon the filing of the final subdivision plat, the previous preliminary site plan approval for the office complex will become null and void.


                                7.  The Applicant shall make the following revisions to the final plat:


A.            The language of Section 13-3.508(5) regarding the notice of incomplete improvements shall be affixed to the Final Plat.


B.            The coordinate base shall be based precisely on NJSPCS.


C.            Outbound monuments shall be set as indicated in the Surveyor’s Certification.  The notation “to be set” shall be removed from the plat.  Certification from the surveyor regarding these set monuments shall be added to the plat thereafter.


D.            Bearings of offset monuments to corners shall be presented for clarity.


E.             All streets internal to this project shall be depicted on the Final Plat with names approved by the governing body.  The appropriate certification from the clerk regarding street approval shall then be added to the plat.


F.             Condition 68 of the Preliminary approval required the placement of concrete monuments along the wetland boundary prior to Final Approval.  They shall now be provided and the final plat modified accordingly to designate them as being set.


G.            Applicant shall comply with the Board Engineer’s requirements regarding mathematical closure of the final plat.





8.  This approval is subject to all outside agency review as may have jurisdiction over this matter.


9.  If the Soil Conservation District, Morris County Planning Board, or any other governmental body from which approval is necessary causes, through their examination of the plans as recited in this resolution, any revisions to said plans then, in that event, same shall be submitted to the Planning Board Engineer.  If the Planning Board Engineer deems said revisions to be significant, the Applicant shall return to the Planning Board for further review and approval.


10.  This approval is subject to the payment of all appropriate fees and taxes.


11.  Revised plans shall be submitted within 60 days and must be deemed complete to the satisfaction of the Board Engineer within 6 months of the date of memorialization.  Failure on the part of the Applicant to satisfy this or any other condition of this resolution will result in referral of this matter back to the Planning Board for purposes of deeming the approval null and void.


The undersigned does hereby certify that the foregoing is a true copy of the action taken by the Planning Board at its regular meeting of 7/20/05.


Mr. Rilee made a motion to approve the resolution.  Mr. Behrens seconded.


Mr. Germinario suggested an addition to Condition #2 to state rights of access via the internal roadway network to the utility easements shall be provided to the benefit of the township.


Mr. Rilee and Mr. Behrens agreed to amend the motion and second.


Roll as follows:  Mr. Rilee, yes; Mr. Behrens, yes; Mr. Shadiack, yes; Mr. Bautz, abstain; Ms. DeVincentis, yes; Mr. Meyer, yes.






Attorney Joel Kobert represented the applicant.  He said we have a color rendering regarding the landscaping plan and we will address the issue regarding the fencing.  I believe we have satisfied the two reports from Mr. Bodolsky and Mr. Stern.


Mr. Meyer said he was there today and there was a lot of planting, as well as the beginning of a board-on-board enclosure.


Thomas McGrath stepped forward.  He referred to exhibit A-1, Site Plan color rendering of the most recent supplemental landscaping plan, dated 8/3/05.  He said along the Route 206 corridor, we have added shade trees and plantings along the corner.  On the sides of the sign we have added more vertical plantings.  To the rear of the parking lot is the dumpster enclosure which had chain link fence, and the board-on-board enclosure has now been installed.  To the eastern side, there are numerous more plantings.  On the corner are boxwoods.  On either side of the doorway there are also boxwoods.  To the westerly portion along the front of the building is the fenced enclosure which is based on the second supplementary landscaping plan.  Previously, the plan showed PVC fencing completely encircling the septic facility.  We have taken that out.  The septic field has been made into a lawn area with plantings along the outside edge.  From the front of the building there is a white PVC fence that ends about 32 feet from the side of the building.  It is a 6’ high fence with a solid 4 foot board-on-board face with lattice work across the top. In front of the fence is a holly type bush that will shield the whiteness.  The fence runs back to the retaining wall and presently there is chain link fence there.  Our intention is to show that the white fence will continue along the wall adjacent to the property line.   Additionally, on either side of the driveway we have also supplemented some of the previous planting.   We have also removed the tree that was in between the last septic tank and the dosing tank.  We have removed that as per the requirement of the Health Department.  Another item that was addressed was a concern about the height and seepage along the wall in the back at the play area.  We have done a revised plan and submitted it to the Health Department.  As of this afternoon, they have approved the septic field the way it is.


Mr. Behrens said he has been to the site and there have been improvements.  Along the front on Route 206, there are about 12 plantings that are dead and have not been removed.  Also, on the north side there are some dead plantings.


Bill Hotz said any of the plantings that have died will be replaced.


Mr. Behrens said the fenced in playground is not finished yet, correct?


Mr. McGrath said there is material in there that has to be removed, and it will be cleaned up.  The playground area is not entirely completed.  There is a portion of fence that needs to be replaced as well.


Mr. Stern said it is his understanding what the applicant seeks tonight is a sign-off on the landscape plan, and they will meet all conditions as a condition of Certificate of Occupancy.


Mr. Kobert said that is correct.


Ms. Voyce said she doesn’t know if replacing the plantings is practical in this 90 degree weather, prior to C.O.


Mr. Stern said the code requires at least a one-year maintenance guarantee.


Mr. Hotz said we are watering every day.  The plants that have died will be replaced prior to C.O. 


Mr. Kobert said we agree to replace any dead or dying plants by the end of October.


Mr. Meyer said since the last meeting, are there any items that you are still asking for relief from?


Mr. Kobert said the front fence is not as it was in the plan, but I think we have provided good security protection, and the experts are satisfied with it.  Initially, there was discussion of just chain link in front.  That is not what we are doing.


Mr. Stern went over the items in his report dated 6/27/05 and said generally, with all the errors and deviations, the end product is better than what the Board originally approved:


Item 1 – Addressed.  Tree removal permit will be revised.  There has been a great deal of additional plants.


Item 2 – Applicant will amend permit


Item 3 – Landscaping is underway – will be installed as a condition of approval.


Item 4 – Instead of black chain link, they have pushed the fence behind the building and it is white, about 4 feet high, with lattice on top.  It is attractive, and they are providing landscaping along the base of the fence.


Mr. Rilee said he currently agrees with the fence, but might have an issue with the sign.


Item 5 – addressed


Item 6 – Mr. Stern said the applicant has put in a slightly smaller sign with a bronze base and framework.  It has landscaping in front and the side.  The appearance is somewhat muted.  To be determined by the Board.


Mr. Rilee questioned the longevity of the sign itself.


Mr. Stern said it is metal framework and base.  In terms of durability, it is standard construction material.


Mr. Meyer said he prefers the sign today vs. the one originally proposed.


Ms. DeVincentis asked what happened with the septic.


Mr. Stern said the fence originally enclosed the whole septic area and became a playground.  That is gone now.  The fence is pushed back behind the front face of the building wall.  Activity is not occurring on the septic field any more. 


Mr. Germinario asked for clarification on whether the sign that was installed is acceptable.


The majority of the Board members felt the sign is acceptable.


Item 7 – chain link fence has been corrected

Item 8 – Board-on-board fence enclosure installed

Item 9 – addressed

Item 10 – applicant feels the lights are necessary for safety.  They will be replaced with shoebox type lights as a condition of approval.

Item 11 – floodlights are for emergency purposes

Item 12 – agreed

Item 13 – additional landscaping provided

Item 14 – addressed

Item 15 – done

Item 16 – done

Item 17 – done

Item 18 – will complete all fencing

Item 19 – condition of approval

Item 20 – done

Item 21 – agreed


Mr. Kobert submitted a conservation easement which has been recorded.


Mr. Rilee asked Mr. Kobert to verify that all these items will be conditions and items agreed upon where discussion has taken place.


Mr. Kobert said that is correct, and an amended landscape plan will be submitted.


Mr. Bodolsky went over the open items in his report dated 6/27/05:


Item 4 – Applicant will show on the plan where the toe of the fill is on the north side of the building, and if it extends beyond the property line they will pull it back – soil will be pulled away from the trees.


Mr. Hotz said we have tied into existing grade where the trees exist.  If there is something that needs to be addressed, we would agree.


Item 5 – agreed to show details of storage tank

Item 7 – agreed

Item 13 – shield will be installed as condition




No one stepped forward.




Ms. DeMasi suggested the Board consider memorializing the approval tonight


Mr. Kobert stated we would request that and we do appreciate the Board’s patience.


Mr. Rilee made a motion to approve the application subject to all items agreed to.  Mr. Sweeney seconded.


Mr. Rilee said the applicant has now put a best effort forward to try to correct the problems.  However, the applicant should have built it the way they said they would at preliminary.


Roll as follows:  Mr. Rilee, yes; Mr. Sweeney, yes; Mr. Alford, yes; Mr. Shadiack, yes; Mr. Behrens, yes; Ms. Voyce, yes; Mr. Bautz, abstain; Ms. DeVincentis, yes; Mr. Meyer, yes.




Attorney Michael Roland represented the applicant.  He stated regarding the issue associated with the adjoining property owner of Lot 13, after the last meeting, we met with our engineer and redesigned a prospective plan so as to meet the sight line requirements of ASHTO and the township.  We were able to come up with a conceptual design moving the entrance further to the north, which creates a reserved strip that would be attached to Lot 12.05.  I met with the adjoining property owner’s attorney and gave him information from the traffic expert.  Last Wednesday, representatives of my client met with the property owner.  We had some degree of encouragement regarding proceeding on the original plan.  I have now been advised Mr. Tourney is not interested in cooperating with the applicant.  Secondly, we took the conceptual plan that we developed and brought it to a greater level of completion, adding details regarding drainage and other improvements.  On that basis, I would like to introduce the application change to the Board’s attention.  We have not been able to provide copies of the revised plan in advance, but have copies of the plans for the Board members with us this evening.


Mr. Roland distributed ledger size copies of the plan to Board members (marked A-3, concept plan dated 8/3/05).


Mr. Murphy, engineer for the applicant, described the revised concept plan for the Board.  He stated we looked at the site to see how we could get the 30 x 100 foot sight triangle easement required by the township and still get the yield of 5 lots.  We shifted the road about 80 feet to the north, which provides us with a 100 x 30 foot sight triangle easement to the south and north.   We have extended the roads back into the rear of the cul-de-sac.  The easements are fully controlled by our development.  It exceeds the ASHTO requirement and the more stringent Roxbury requirements.   We designed the road to go back farther into the site.  There is now a strip of land that will be left as natural vegetation or part of the landscape plan for trees.  The first lot on the left, 12.05, is 56,000 square feet in size, a lot of which is that strip of land and the water quality treatment area. 


Mr. Murphy showed the areas of undisturbed vegetation.  The first part would the strip just described.  The two lots on the cul-de-sac are more conforming.  Behind those lots are areas that would be left in a vegetative state.  Lot 12.02 has a large side yard, and could be left natural as well.  As you come along the road, we would be extending the storm sewer and sanitary sewer.  The storm sewer would then connect into the detention basin and would discharge in to the storm sewer.  The sand filter would have an underdrain out to the storm sewer and could overflow into the detention basin area.   These two features of the stormwater control system are located on lots 12.01 and 12.05.  A homeowners association would maintain the features.  We have not incorporated curbstones and sidewalks.  We have shown that there would be grass swales along the side of the road to limit impervious area.  There are two inlets midway into the road and another set to get the water into the sand filter and then into the detention basin.  The 5 proposed lots would be sewered. 


Mr. Murphy said neighbors were concerned about the proximity to the drywells.  We have shown that the drywells that would be constructed for Lot 1 would be in the front of the lot.  The drywells for the lot with the detention basin would be on the side of the house.  There would be nothing close to the property lines as far as underground stormwater management.


Mr. Stern asked why Lot 12.01 wouldn’t be maintaining the detention basin?


Mr. Murphy said they would maintain it as far as mowing the lawn, etc.


Mr. Stern said there are lots in the township where the homeowner maintains the basin on their lot. 


Mr. Murphy said his understanding of the stormwater regulations is that it can’t be the burden of one property owner.


Mr. Germinario said you wouldn’t put the entire obligation on the property owner, but requiring them to do ordinary maintenance is ok, as long as the homeowner’s association does the major extraordinary maintenance obligations.   That is the way it will be framed in the resolution.


Mr. Rilee asked if there would be any variances required with the new lot design.


Mr. Murphy said no.  The appendages to the lots add to the area, so there are no area variances. 


Mr. Rilee asked if the lot with the long appendage would be consistent with the ordinance if the appendage was not there.


Mr. Murphy said no.


Mr. Behrens said with the elimination of sidewalks, it would require children to walk along the roadway.


Mr. Murphy said that is the conflict between the RSIS requirements and the stormwater regulations. One agency says to limit the amount if impervious coverage, and the other is saying provide sidewalks, etc.


Ms. Voyce suggested the lack of sidewalks may not be an issue with the small cul-de-sac.  Drainage is more of an issue here.  Are there any setback variances required?


Mr. Murphy said no.


Mr. Stern said on my initial inspection, there are a lot of things on the property. There is a lot of mature vegetation that never was shown on the survey, including some along Carey Road.  While there are benefits to getting the sight easement, practically all those trees will be obliterated.  That is my concern with the design.


Mr. Murphy said we could reduce it if we went to the ASHTO standard. 


Mr. Roland said the applicant will re-plant over 150 trees on the property.


Mr. Stern said the existing trees should be located on the plans.  That was mentioned in my original report.  The engineer mentioned the ASHTO standard.  Maybe we should look at that and see if anything of significance is preserved.


Mr. Roland said the indication we got at the previous hearing was that the Board wanted us to go with the township standards.


Ms. Voyce said the Board needs to see both scenarios.  We need to have the information to determine what would be the best compromise.


Mr. Bodolsky said relative to the sight easement, our standard calls for 30 x 100, but that is an approach for a sight triangle that doesn’t have practical merit for this application.  What is important is for someone pulling out of this street onto Carey Road not colliding with people coming up Carey Road or causing them any inconvenience.  That is addressed by the ASHTO standards.  I would suggest that the applicant needs to be cognizant of the safety issue first.  I would steer the applicant toward the ASHTO standard.  


Mr. Roland said the applicant will provide an alternate design showing the ASHTO standard and the impact it has.


Mr. Bodolsky said some things about this layout could be visually undesirable.  The neck to the left of the first reserve is designated as a conservation easement.  If it is not, you could have a fence along the road and the adjoining property line and it would be visually bad and would look like a dog run.  Conservation easement is the only way of handling that area in an acceptable fashion.  Another concern is along lot 2.04, there is a string of mature trees.  If you were to shorten the cul-de-sac, it would eliminate a certain number of feet of roadway and would get rid of the neck on the right hand side, and it would preserve those trees.  It may require a frontage variance.


Ms. Voyce said the applicant still hasn’t addressed the concerns raised in discussions at the concept meetings.  It may result in a 100 to 150 foot reduction to the cul-de-sac.  


Mr. Murphy said the way the property is set up, the area you would want to cluster is in the back, not the front.


Mr. Roland asked what that discussion was about.


Mr. Murphy said there was discussion on having some open areas on the property.


Ms. Voyce said there is critical habitat in the back of the property.  That will have to be addressed before the changes are made to the plans.


Mr. Murphy said he does not believe there is critical habitat there.  We will address that.  It was a typo.


Ms. Voyce said the Board needs to hear why the applicant ignored the discussions at concept, and why you think you don’t have critical habitat, when your EIS states that you do.


Mr. Murphy stated he misread the database.


Mr. Roland said the applicant intends no disrespect.  We have reviewed the property from the standpoint of locating 5 residences at or closer to Carey Road.  I see no way you can put 5 lots on the property and still save the rear of the property.


Mr. Meyer said most members of the Board were not at the concept.  If there is something Ms. Voyce would like to see, she should tell the applicant that.


Ms. Voyce said they understood and said they would consider it.  They can address the concerns in writing.


Mr. Germinario said many issues have been raised by Ms. Voyce in her memorandum and in the hearings.  It may be beneficial for us to schedule a staff meeting before the next meeting, with Ms. Voyce present.  Such a meeting would require noticing.


Mr. Bodolsky said what Ms. Voyce is promoting is a concept that would have zoning variances involved.  If we were to elect to go with that concept, that doesn’t necessarily mean the Board would agree to those variances.


Mr. Rilee said we have not seen a plan that has safety measures involved for the turning radius, or that they can come up with 5 conforming lots.  I know you can get 4 lots, and then the clustering may be possible.  I don’t think clustering is an option with 5 lots.


Ms. Voyce said there have also been a number of technical questions that I brought up that also need to be addressed.


Mr. Stern said because of the new stormwater regulations, we are seeing things we haven’t seen before.  We are dealing with a proposal for no sidewalks and no curbs, and a sand basin. I do have a concern about the dog run area and it would be problematic in terms of maintenance.


Mr. Murphy said we had that on the original plan as a wider roadway dedication.  Some Board members felt it would be better if it was attached to one of the properties.


Mr. Rilee also had concerns about the reserve area.


Ms. Voyce asked if the staff could represent her position on this, rather than her attending.


Mr. Stern said it is his understanding Ms. Voyce wants to see a concept of how clustering could occur closer to Carey Road to save the trees in the rear and reduce impervious coverage, and the comments contained in her memo.


Mr. Meyer said the applicant will have to meet with the staff and to also look at the roadway and that strip of land. 




John Grapes, 16 Carey Road, was sworn in.  He asked if the storm basin is typical.


Mr. Murphy said it has a 3/1 slope, vegetation on top, grass on bottom.


Mr. Grapes said he is concerned about it being right outside his front door.  Also, giving approval to fit as many houses as you can on a property is a concern.




The application was carried to 9/21/05.  Extension granted to that date.


There was a 5 minute recess at 9:00 p.m.







Attorney Lawrence Berger represented the applicant.  He stated we received a report dated 8/2/05 from Mr. Bodolsky.  We agree to all items in the report, except for one.  There are issues to be resolved in the township regarding off site improvements.  In the interim we would like to begin moving soil.  We would put up all bonds required to be able to move the soil.   


Mr. Bodolsky said in general, we make a preliminary site plan approval conditioned on the soil moving application and vise versa.  The philosophy of not permitting this would be not to encourage soil moving without a project affiliated with it.  Clearly, you have that here.  My concern would be that we have an erosion and sediment control plan approved for a development, and if they were to start soil moving today and still be in discussions over administrative issues three months from now, that should be stabilized in the interim.


Mr. Rilee suggested the possibility that if the building doesn’t take place within a certain time, they could provide stabilization to Mr. Bodolsky’s satisfaction.


Mr. Berger said Mr. Petillo has an approval from Morris County Soil Conservation.


Mr. Bodolsky said that is for putting up a building, graveled area, etc.  There are provisions in any soil approval that say if the site is inactive for 90 days it has to be temporarily stabilized. 


Ronald Petillo was sworn in.  He stated the plan is already approved as part of building plans.  We are willing to do whatever that plan requires, with stabilization if it is after the 90 days.


Mr. Petillo said there are some administrative issues that have to be resolved.  We just recently got the compliance reviews from Mr. Bodolsky and Mr. Stern.  We can’t get the time tables moved up.


Mr. Berger said we have made a proposal for the off-site contribution, and have not yet heard back from the Township Engineer.


Ms. Voyce said she would rather the administrative issues be resolved, rather than have an open site for months. 


Mr. Rilee said if it is stabilized, he has no problem with it.


Mr. Germinario said there is a provision that the applicant may commence soil moving prior to fulfilling all conditions of preliminary site plan resolution provided that if construction of site plan improvements have not commenced within 90 days of the approval, the applicant will implement interim stabilization measures to the satisfaction of the Board Engineer.


Mr. Petillo suggested a time period of 120 days.


The Board agreed to 120 days.


Mr. Stern said before soil moving activity occurs, a tree removal permit will have to be obtained, and the bond has to be submitted.


Mr. Petillo agreed.


There was discussion on the route of travel.  It was determined the route of travel will be optional for both sites.  It will be either on Dell Ave, out to Rt. 46 to the McNear site or down to Main Street in Wharton and out of the township.  Hours of operation will be the standard hours as per the ordinance.




No one stepped forward.




Mr. Rilee made a motion to approve the application.  Mr. Behrens seconded.


Roll as follows:  Mr. Rilee, yes; Mr. Behrens, yes; Mr. Alford, yes; Mr. Shadiack, yes; Ms. Voyce, yes; Mr. Bautz, yes; Ms. DeVincentis, yes; Mr. Sweeney, yes; Mr. Meyer, yes.




Attorney Paul Nusbaum represented the applicant.  He stated we are here for an amendment to the soil moving permit and the preliminary major site plan approval in order to continue the construction of the stormwater infrastructure, retaining wall, landscaping and gabion baskets, which is an erosion control measure.  Also, we want to submit the footing and foundation drawings to the Building Department for review.  We have been working under the soil moving permit for a period of time, and were told in an attempt to put in the stormwater infrastructure we were exceeding the bounds of the soil moving permit and that there were open issues of the preliminary approval that had to be dealt with before construction.  Additional plans were file with the board and reviewed, and we had a meeting this past Friday.  As a conclusion, it was agreed we were in compliance with all the requirements of the resolution with the plans to be amended and sent in, but that there were 4 particular items to be addressed by the Board.  


Grayson Murray, engineer for the applicant, was sworn in.


Mr. Nusbaum said regarding Condition A, two areas of conservation easement were not covered.  These are two easements that affect our own by the rear property.  One of them is for ingress and egress, and on the easterly side is for utilities.  The reason they were not included is that we don’t have the power to cut off someone else’s rights for access and utilities.  The fact is they can’t use it anyway because it goes to wetland.  We are asking for a waiver from that provision of the resolution so that we are in strict compliance.


Mr. Bodolsky read the provision which states, “This variance is granted subject to the dedication to the township of a conservation easement covering the areas beyond the limits of disturbance depicted on the site plan, except the access road right-of-way”.  Essentially, everything that is not being disturbed on the site is subject to a conservation easement.


Mr. Germinario said the applicant can still give a conservation easement with the proviso the land is already encumbered by the easement rights of a third party.


Mr. Nusbaum agreed, as long as it doesn’t hold up the site work.


The Board determined this will become a condition of final.


Mr. Nusbaum said #78 in Mr. Bodolsky’s report states there was a condition that Mr. Bodolsky was to review the maintenance manual relating to the drainage.  The maintenance manual was sent to DEP, reviewed, and approved by them.  We are of the understanding that they pre-empt the field and it isn’t open to municipal interpretation.


After discussion it was determined Mr. Bodolsky will review the manual to ensure the items required are contained in the manual, and that if they are not, the township conditions will be added to the manual.  It is not necessary to submit the addition to DEP.


Regarding Item #106, Mr. Nusbaum stated we are waiting for a response from the Township Engineer regarding the off-site contribution.   After discussion, it was determined this will be a condition of final approval.  The applicant will acknowledge they are taking the risk with their eyes open.


Item 114 – Mr. Bodolsky is to review the approvals from other agencies.  Mr. Nusbaum stated as yet, we don’t have the NJDOT major access permit.  Mr. Nusbaum submitted a letter dated 8/1/05 (marked A-1) from DOT which states, “The department issued comments for the above street permit application in May and June 2005 which the applicant responded to on July 14, 2005.  We concur with the design of the new Phillips Way intersection with Route 46 which will include only a left turn egress restriction and have no outstanding comments with respect to this new public street design.  Our ongoing review should be completed within the next 30 days and only relates to traffic impacts at off-site Route 46 intersections that were studied by the applicant.  As soon as the traffic review has been completed, the department anticipates issuing the street permits to the township for signature”. We are willing to undertake the risk of construction while awaiting that permit.


Mr. Bodolsky said normally speaking, site improvements don’t start until all outside approvals are obtained.


Discussion.  It was determined the applicant can go forward with the work


Mr. Nusbaum said the remaining items discussed at the meeting on Friday will be addressed in revised plans.


Mr. Germinario said you are only asking to amend preliminary site plan approval on these 4 items.


Mr. Nusbaum said that is correct, and on submission of revised plans as per the compliance reports from Mr. Stern and Mr. Bodolsky, that they will be signed off on.


Mr. Stern said the applicant wants to move forward while the machines are there and not wait for our review.  They want to move ahead with soil activities, landscape the area where there is the final grade, do some piping, retaining wall, etc. 


Mr. Germinario said then the soil permit will also be amended to say they are permitted to do the activities that are outlined in Mr. Murray’s letter of 7/6/05 – modular block retaining wall with gabion lined baskets, construction of additional storm piping between the locations enumerated, associated landscaping, submit footing and foundation drawings to obtain a permit from the appropriate municipal department.  Once this specific work is done, all other activities stop until there is full resolution compliance.


Mr. Rilee said there may be some concern about the retaining walls.


Mr. Bodolsky said we still had outstanding questions on the wall calculations.  Before they are constructed, there needs to be a plan approved.


The applicant agreed.


Mr. Germinario said any motion to approve would include approval to amend the site plan approval to defer compliance with conditions a, 78, 106, 114 until final approval and to permit the applicant to move forward with submission of permits for footing and foundation prior to resolution compliance.  Secondly, to amend the soil permit to allow the activities outlined in Mr. Murray’s letter of 7/6/05 prior to resolution compliance.


Mr. Bodolsky said the DOT permit should not be a condition of final.




No one stepped forward.




Mr. Rilee made a motion to approve the application as outlined, and to make the approval effective tonight.  Mr. Sweeney seconded.


Roll as follows:  Mr. Rilee, yes; Mr. Sweeney, yes; Mr. Alford, yes; Mr. Shadiack, yes; Mr. Behrens, yes; Ms. Voyce, yes; Mr. Bautz, yes; Ms. DeVincentis, yes; Mr. Meyer, yes.




Attorney Peter Wolfson represented the applicant. 


Mr. Germinario said you are here asking to amend preliminary site plan approval by modifying a particular condition.  There is no information to the effect that the original applicant and owner consent to the applicant.


Mr. Wolfson stated Mr. Riback signed the application.


Mr. Wolfson stated the applicant is developing a space in the mall consisting of 3,506 square feet for a Dunkin Donuts franchise.  The resolution was approved 4/7/04, and memorialized on 5/19/04.  Condition 30 said all signage shall consist of red lettering on a white background except for White Castle.  We are seeking relief from the condition to our client, who is a Dunkin Donuts franchisee to utilize the nationally advertised and trademark logo on the signage for their use. That includes façade signage and placement on three pylon directory signs on the site.  In the application, we set forth a rider on background on a Federal Act, the Lanham Act which seeks to protect federally protected trademarks so that businesses who spend millions of dollars on advertising can be protected.  The act prevents the requirements that might seek to amend that trademark as to content and color.  My client respects the intent behind the condition and the attempt to get uniformity, however, we submit we don’t offend the intent of the condition.


Mr. Alford asked if it is correct the whole front of the mall will be red lettering except for Dunkin Donuts.


Mr. Wolfson said that is not correct.  There is a Dominos Pizza that has their own logo.  There is also white on a red background. 


Mr. Stern said this introduces orange and purple.


Mr. Wolfson said the colors are actually pumpkin and plum.  The project architect will show that the tones here are practically indiscernible from some of the shades of red that have been placed there.


Mr. Rilee said when there was discussion during the original application, it was mentioned we should address the whole sign package for this mall.  I don’t want to have to go down the path of seeing every single sign having an application on this.  I think it is incumbent on the mall owners to put together an application for a signage package for this mall.  If some of the Board members feel strongly about the two-colored signage, it could be a moot issue.  But, I don’t think it’s appropriate of going over one sign at a time.


Mr. Behrens asked if this is just for the sign on the building.


Mr. Wolfson said no, it is for the façade sign, and 3 pylon signs.


Mr. Stern said, at this point, there is no other tenant identified on all 3 pylons?


Mr. Wolfson said that will be addressed.


Ms. Voyce asked if we allow directional pylon signs in the middle of the mall.


Mr. Stern said they are just 4 square feet in area.  The proposal is to take the three freestanding signs, one on Rt. 46 and one on Howard Blvd.  All those pylons are all red on white, including White Castle.


Ms. Voyce said that would provide them with a certain advantage over other tenants.  I agree with Mr. Rilee that there should be complete sign package for the mall.


Mr. Stern stated agreed it should be dealt with in a comprehensive fashion with both mall owners to set criteria on how to handle this.


Mr. Germinario said what the Board may want to still hear the testimony tonight, and it will still be relevant as to where this sign will fit into the comprehensive package.  The Board could hear the testimony and then require the submission of a comprehensive plan of the entire mall for their review. 


Mr. Alford asked why we gave Dominos approval for their sign.


Mr. Germinario said only the existing tenants, with leasehold rights, would be allowed to maintain those, and new applicants would have to comply with the approved colors.


Ms. DeVincentis said she personally feels name recognition and site recognition is a factor, and restricting them is not what I would have done if I was on the Board at the time of approval.


Kevin Maybury, principal in the business, was sworn in.  He said he has been a franchisee for 15 years.  He owns 12 Dunkin Donut shops – in Ledgewood, Chester, Berkeley Heights, Denville and various others.  We propose to operate in this mall.  As part of the agreement, we are required to use the logo.  I also desire to for a safety factor, and the majority of our customers are impulse buyers, and the sign can be seen from a distance on the highway.  Color is critical.  The safety relates to the ability to recognize the fact that there is a Dunkin Donuts there in time to make the maneuver off the highway. Pursuant to the franchise agreement, 5.9% of the 10.9% weekly fees are for marketing and signage.  We use the logo at all my other franchises.  This has never come up before.   We also have the logo on several state highways, such as Rt. 78 and Rt. 80.  We are already on Rt. 46 and will be on Rt. 80 with proper colors.


Mr. Rilee asked if the lease has been signed and if Mr. Maybury was informed by the owner of the sign agreement.


Mr. Maybury said he did sign the lease and is not aware if he was informed.


Mr. Behrens suggested considering the signs on the road as the signs with proper colors, and keep the sign on the façade consistent with the red and white.


Mr. Wolfson said the condition we are seeking relief from excepts out White Castle as to their store signage.  


Ms. Voyce said they are not in the strip.


Mr. Meyer asked if all Dunkin Donuts have the logo.


Mr. Maybury said he is not sure.


Mr. Stern said there are similar situations in Washington Township and Mercer County.


Mr. Stern asked if the landlord notified you the restriction of red letterings on a white background


Mr. Maybury said that may have come up after the lease was signed, but I felt strong about the ability to attempt to get our colors, and I was familiar with the Lanham Act.


Mr. Germinario said the franchise agreement requires you to use the logo.  Does it say you have to use it on every single sign to advertise the business?  You are using it on the highway signs, on the accessories such as cups, etc.


Mr. Maybury said he is not sure if it is a violation of the franchise agreement, but what brings in the customer is the sign.


Mr. Bautz asked, if their lease expires, would we be going through the same thing?


Mr. Germinario said potentially, yes.  I agree doing this on a case-by-case basis will leave it open to have every one of the tenants come in for a sign.


Mr. Wolfson said this is a national trademark retailer and is entitled to the protection of the Lanham Act.  In other towns where it appears there was a similar attempt to get as uniform signs as possible, we understand that, but in each of those cases, the national trademarks are respected and they exist.  The fact that in one particular town that particular operator chose not to spend the money and effort to pursue this is irrelevant to my client under this federal protection act.  We did an extensive brief and had discussions with the Board Attorney.  It is our  position we are entitled to use the logo.  We wanted to be sensitive to the concerns, and feel this is a reasonable request.


Mr. Meyer suggested the Board hear the witnesses.  The feeling is that the Board will want to hear testimony on a comprehensive sign package from the owners of the shopping center.


Ms. Voyce said in the 3rd paragraph of the applicant’s statement it states “some courts have concluded . . . .”.  That statement would indicate some courts have not concluded that.


Mr. Germinario stated he will answer that question at a later date.


An exhibit of drawing SP1 was marked A-1.


Frank Truillo, architect for the applicant, was sworn in and gave his educational and professional background.  He referred to the exhibit A-1 and showed the space to be occupied by the applicant and the three freestanding signs on the site.  A second exhibit board, marked A-2, showed 7 photos.  The four photos at the bottom are accurate, except for the computer enhanced one of Dunkin Donuts.  The other three photos were of the freestanding signs showing where the Dunkin Donuts logo signs are proposed.


Mr. Truillo described the photos of the proposed signs.


Mr. Shadiack asked if the two existing signs would be combined into one sign.


Mr. Truillo said yes.  The current signs over the existing two spaces were 2’6” x 8’ each for a total of 16’ in length.  We are reducing it slightly to 15’6” to comply with the ordinance.


Mr. Stern said the code says a façade sign can’t exceed 60% of a tenant space.  Is the height consistent with the other signs?


Mr. Truillo said they will comply with the 60% and the height is consistent.


Mr. Stern asked why the applicant didn’t use the full width on two of the freestanding signs.


Mr. Maybury said that is all that was available.


Adrian Humbert, professional planner for the applicant, was sworn in.  He stated he reviewed the application and the condition we seek relief from, and the ordinance.  The conclusion I have reached is that from a planning perspective, the signage is national brand signage.  That is the only signage protected under the Act.  I believe the proposal is reasonable and that the signage is properly located.  Looking at the photos, the part of the sign pertaining to Dunkin Donuts, it is my view the two colors blend very well with the reds that predominate on the present signs. 


Mr. Humbert referred to a photo board marked A-3, and stated the present signs are predominantly red.  On exhibit A-2, the areas shown for the Dunkin Donuts are in the standard Dunkin Donuts colors, pumpkin (orange) and plum which is in the red family.  From that perspective, I think the signs with the additions proposed will fall within what the ordinance calls for.  The ordinance calls for a consistent design theme using similar elements such as material, size, background, letter coloring, letter style, illumination and borders.  The colors, based on the size of the signs, take on the ambiance of the overall sign.  A consistent design theme is followed.  Similar elements are not the same as identical ones.  From the perspective of the franchisee, the three prime areas of concern are brand identification, brand consistency, customer recognition.  I find what the franchisee is proposing is similar to what a number of the studies say about signage: 


-        Message should be clear and unambiguous – this is

-        Sign must be distinguishable from the other signs –

-        Sign must be readable as to copy of symbols – it is recognizable by the colors

-        What the person expects to see on the sign – familiar brands identified in a familiar manner

-        Emphasis of the sign – nationally recognized color systems do this well

-        Sign must be kept up to the standards of the use being identified – the brand is the most important factor, and those types of signs will be maintained in a credible fashion.


This sign is consistent with the general design theme comments, but is not consistent with the red on a white background.  From the photos, you can see there is a variety of the reds used on the signs.  There is some variability.  Specifically the façade sign for Auto Zone, to my eye it appears to be on the orange side of the red spectrum, very similar to the orange of Dunkin Donuts.  TGIFridays has black letters on a candy-stripe background.  There are other anomalies in the signage already present.  There are many other national brands identified on the roadsides in Roxbury.  This proposal blends well with the center.  This change in signage that would not comply with the ordinance only pertains to the national brands.  The Act only refers to national brands and trademarks.  A basis exists for granting a design waiver for the sign in terms of its compatibility.  The ordinance says, except for the bulk regulations, if the Board determines the signs are not within the intent and spirit and intent of the resolution, the applicant request design waivers. 


In answer to questions from Mr. Wolfson, Mr. Humber said the appropriate relief relative to this condition is a design waiver, not a variance.  In terms of the proofs and concerns of the Board, the standard for the granting of a design is to find the relief being requested is reasonable.  I believe it is, given the placement, context and location of the signs.  Also, it must be proved if the relief is not granted, there would be impracticalities and/or hardship worked upon the applicant.  Impracticalities are a lower standard than a hardship.


Mr. Alford asked what color the White Castle sign is. 


Mr. Humbert said it is a faded red.


Mr. Alford asked if you knew the lease said you could only have a red sign, would you have still gone there?


Mr. Maybury said he is not sure.


Mr. Germinario asked if the lease stipulate the landlord would have to approve any sign you put up?


Mr. Maybury said he is not sure.


Mr. Wolfson urged the Board not to let the consideration of this narrow request for one tenant be about what the client knew or did not know.  The request is a good faith, straightforward request.  The consideration has to be about the simple request to modify the condition and grant a design standard waiver.


Mr. Stern stated considering all the existing signs are red or shades of red, doesn’t it take things out of proportion to have the Dunkin Donuts sign?


Mr. Humbert said the bottom half of the sign is a different pattern than the rest of the sign.  That is the spacing that must have been approved by the Board as part of the site plan.  I believe those spaces are allocated by the amount of square footage.  As a national franchise


Mr. Rilee said this is not just a minor one-time thing.  This site hasn’t gotten its final approval.  I am very disappointed in the landlords.  I agree with the applicant in concept.  I think we need a full sign package from the two landlords.  Auto Zone is not in compliance and they don’t have their final yet.  That sign was supposed to be red.  The landlords should be aware of the Board’s concerns.


The application was carried to 9/21/05.  The applicant granted an extension to that date.


The meeting was adjourned by motion at 11:00 p.m.


                                                            Dolores DeMasi, Secretary