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A regular meeting of the Board of Adjustment of the Township of Roxbury was held on the above date with Chairperson Gail Robortaccio presiding.  After a salute to the Flag, the Chairperson read the “Open Public Meetings Act”.


BOARD MEMBERS PRESENT:  Gail Robortaccio, Mark Crowley, Peter Giardina, Robert Kurtz, Joyce Dargel, Barbara Kinback, Edward Data, John Wetzel.


ABSENT:  Sebastian D’Amato.


PROFESSIONAL STAFF PRESENT:  Larry Wiener, Russell Stern, Paul Ferriero for John Hansen.


Also present:  Lorraine Mullen for Dolores DeMasi, Board Secretary






In the matter of Kelley & Dennis Hastie

Case No. ZBA-07-30







Approved: May 14, 2007

Memorialized: June 11, 2007



                WHEREAS, Kelley & Dennis Hastie have applied to the Board of Adjustment, Township of Roxbury for permission to construct an addition requiring dimensional variance relief for premises located at 2 Helen Street and known as Block 1605, Lot 3 on the Tax Map of the Township of Roxbury which premises are in a “R-3” Zone; said proposal required relief from Section 13-7.1301D5a, 13-7.1301D4 of the Roxbury Township Land Use Ordinance; and

                WHEREAS, the Board, after carefully considering the evidence presented by the applicant and having conducted a public hearing has made the following factual findings:

  1. The applicants are the owners and occupants of the single-family home on site.
  2. The applicants were proposing to construct a second floor addition.  The addition would be within the footprint of the first floor.
  3. Applicant received a letter of denial dated 3/16/07 from Tom Potere, the Zoning Officer.
  4. The proposed addition would result in the continuing nonconforming conditions:
    1. Rear yard – 20.99’ existing vs. 35’ required
    2. Front yard – 28.66’ existing vs. 35’ required
  5. The applicant submitted photos A-1 to A-7 in evidence.  Same depicted existing housing stock and a number of two story homes in the area.
  6. The applicant submitted a colorized plot plan depicting the limited building envelope on-site together with hand drawn elevations.

                WHEREAS, the Board has determined that the relief requested by the applicant can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance of the Township of Roxbury for the following reasons:

  1. The Board finds the location of the existing infrastructure (same being non-conforming) to be a hardship peculiar to the premises.   In addition, the premises are a corner lot and thus have two front yards, and as noted on the plot plan attached to the application, the conforming building envelope leaves little room to construct a reasonable home.
  2. There will be minimal impact on the zone plan and zone scheme.  The applicant is staying within the existing first floor footprint. 

                                NOW, THEREFORE, BE IT RESOLVED by the Board of Adjustment of the Township of Roxbury on the 14th day of May, 2007 that the approval of the within application be granted subject, however, to the following conditions:

  1. As testified to by the applicant, the second floor addition shall be on the same footprint as the first floor with the front yard setback to be no less than 20.99’ and rear yard setback to be no less than 28.66’.


Ms. Dargel made a motion to approve the resolution.  Ms. Kinback seconded.


Roll as follows:  Ms. Dargel, yes; Ms. Kinback, yes; Mr. Data, yes; Mr. Giardina, yes; Mr. Crowley, yes; Ms. Robortaccio, yes.




In the matter of Sandra Arminio/POE, LLC

Case No. BA-07-24







Denied: May 14, 2007

Memorialized: June 11, 2007



                WHEREAS, Sandra Arminio/POE, LLC has applied to the Board of Adjustment, Township of Roxbury to appeal a decision of the Zoning Code Enforcement Officer or alternatively, for an interpretation of a resolution granted by the Board of Adjustment 

affecting premises located at 150 Shippenport Road and known as Block 10101, Lot 32 on the Tax Map of the Township of Roxbury which premises are in a “PO/R” Zone; said proposal required relief from Section 13-7.2202A of the Roxbury Township Land Use Ordinance; and

                WHEREAS, the Board, after carefully considering the evidence presented by the applicant and having conducted a public hearing has made the following factual findings:

  1. Edward F. Dunne, Esquire represented the applicant.
  2. The applicant, POE, LLC, is the owner of the property.  Sandra Arminio is a principal of POE, LLC as well as the widow of the late developer of the subject premises.
  3. The instant application arises from a denial letter, dated 1/25/07 issued by Thomas Potere, the Zoning Officer.  Mr. Potere’s letter of denial is attached as Exhibit A to the within application.
  4. The applicant, Sandra Arminio, testified that the site presently had four (4) tenants using storage bays on-site.  One tenant was a catering business, another tenant, a well equipment business, a third tenant, Ryders Vending, was utilizing the site solely for storage, and the fourth tenant, NWJ Services, was using the site for storage of equipment as well.  Each of these tenants parked at least one vehicle on-site.  
  5. The friction between the applicant’s tenancies and the Zoning Ordinance arises because the multiple uses would not be permitted in the PO/R Zone as a matter of right.  Applicant’s counsel suggested that the 10/16/03 resolution granting a use variance to Arminio Landscape Maintenance, Inc. (the company owned by Sandra Arminio’s late husband) did not limit the use of the property by the multiple tenants that were presently occupying the property.  Applicant’s counsel suggested that the resolution should be interpreted to mean that other generic uses would all be within the penumbra of the use outlined in the resolution.  He opined that, if Arminio Landscape Maintenance had not utilized the entire space, Arminio Landscape Maintenance would have had a right to sublet the premises to the same core group of tenants that is presently before the Board.
  6. The applicant’s position as far as an appeal and interpretation are essentially tied into the same question.  The appeal would be successful if the Board interpreted the prior resolution in the manner suggested by the applicant. 
  7. It should also be noted that the applicant applied for an additional form of alternative relief, which would be in essence a modification of the 10/16/03 variance as to permit the tenancies described by the applicant and the location described by the applicant.
  8. After careful review of the applicant’s testimony and the prior resolution, the Board hereby denies the applicant’s appeal and affirms the decision of the Zoning Code Enforcement Officer finding:
    1. A fair reading of the 10/16/03 resolution as well as the site plan are all indicative of one integrated use as a landscaping company.  There is nothing in the record to indicate otherwise.  The resolution was specific in describing an approval for one use on site; i.e., a landscaping company and the application was processed in that manner.
  1. The prior application was approved as a use variance.  The use variance was specific to the use proposed by the applicant.  Had the prior applicant chosen to ask for a more expansive relief, they would have had the right to do so.  In fact, the applicant still would have that right as part of the “D” variance the applicant is seeking.  The Board specifically notes Paragraph 8 of the resolution “the present application is for a “D1” use variance and preliminary site plan with “C” variance and design waivers to develop the property for the operation of a landscape maintenance business”.
  2. The Board further notes Paragraph 13 of the resolution.  The Township Planner noted in reviewing the application that it was a “D1” use variance as a landscaping/contracting business is not a permitted use in the PO/R Zone.
  3. The Board further notes that the site plan was specifically crafted, amended, and reviewed to accommodate one integrated landscaping business.  The Board notes that certain facets of the design waivers that were granted for the site were granted based upon the site being utilized for a landscaping business particularly noting the testimony of the applicant’s engineer in Paragraphs 14 through 27 of the resolution.
  4. The Board also takes into account the testimony of the late Frank Arminio, which is articulated in Paragraphs 32 through 37 of the resolution.  All of the testimony of Mr. Arminio, which was presented to the Board, was for one integrated landscape/contracting business.  Mr. Arminio even went into detail to describe the idiosyncrasies of his particular business/operation.
  5. For the above reasons, the first two aspects of the application under the within case number are denied.  As noted, the decision of the Zoning Code Enforcement Officer is affirmed primarily based upon the foregoing interpretation of the resolution of approval.


Ms. Dargel made a motion to approve the resolution.  Mr. Crowley seconded.


Roll as follows:  Ms. Dargel, yes; Mr. Crowley, yes; Mr. Giardina, yes; Ms. Kinback, yes; Mr. Data, yes; Ms. Robortaccio, yes.













                WHEREAS, the Municipal Land Use Law, and in particular, NJSA 40:55D-70.1 requiring the Zoning Board of Adjustment to annually review its decisions on applications and appeals for variances; and



                WHEREAS, the Board has received a report, which is attached to this resolution, which report was dated April 20, 2007, and which was adopted by the Board on May 14, 2007 as its annual report; and



                IT IS, THEREFORE, RESOLVED that the attached report be designated as the Board’s annual report pursuant to the Municipal Land Use Law and that copy of same shall be forwarded to the Governing Body and the Planning Board.


Ms. Dargel made a motion to approve the report.  Mr. Giardina seconded.


Roll as follows:  Ms. Dargel, yes; Mr. Giardina, yes; Mr. Crowley, yes; Mr. Kurtz, yes; Ms. Robortaccio, yes.






Daniel and Kimberly Coe were sworn in.  Mr. Coe said they are asking for a variance for a 6’ stockade fence.  This is a corner property and requires a variance for fences over 4’.  We have a Labrador Retriever who has already gone over 4’ fences in our previous home and want to enclose the backyard for the animal and ourselves.  The dog was already hit once at this address.


Mr. Wetzel asked what other options were considered.


Mr. and Mrs. Coe said they tried electronic collars and she is not affected by it.  She was a rescue, and had quite a few behavior problems.  We have worked with her, but she does have bursts of energy. 


Mr. Wetzel asked how long they have been in the house.


Ms. Coe stated they have been there since October 2005.  The dog was hit about 6 weeks ago.  We bought the house with the impression we could put up a 4 ft. fence, and thought that would be o.k.


Mr. Data asked if there could be a buffer zone between there and the sidewalk.


Mr. Coe said there are 3 pine trees on the corner along Righter Road. Also there is a water access between the sidewalk and where we will put the fence.  My plan is to keep the fence back behind the water shutoff about 6”.


Mr. Data said he was thinking about a 20-foot buffer.


Ms. Coe said the pine trees have created a sound barrier and some privacy already.  The way the street curves, that area is always dark.  We did talk to all of our neighbors and they all seem to be in agreement.


Mr. Coe said if we come back about 20 feet, either the fence would be between the sidewalk and the trees, or in front of the trees toward the home  The trees are about 5 to 10 feet off the setback line.  If I bring it back, I would be eliminating essentially half of the back yard.  Eventually we want to install a deck off the rear of the home.


Ms. Robortaccio asked if they can come that close to the sidewalk without going into the right-of-way.


Mr. Stern said the way it is depicted on the plan it looks like it is about 1 foot off the right-of-way.  Where is the water line?


Mr. Coe stated it is currently on our property inside the sidewalk on Righter Road.


Mr. Stern said the Board needs to consider what a 6 foot high fence would look like right next to the sidewalk.


Ms. Robortaccio asked if they had considered a dog run.


Ms. Coe stated that would not give her enough room.  She is very active. There is another lot at the corner of Regina and Clearfield that has a 6-foot fence.  A dog run would not work for her.


Ms. Robortaccio said there is also a fence on Brookside that is set way back in and it is a 4 foot fence.  It is not near the property line.


Ms. Dargel asked how old the dog is.


Mr. Coe said about 7 years old, and still very active.


Ms. Dargel said you would be building a fence for a specific dog, and the variance would go with the land.  This fence would be there forever. 


Ms. Robortaccio said the applicant hasn’t proved a hardship.  A personal hardship doesn’t qualify.


Ms. Coe said it would also give us privacy.




No one stepped forward.




Ms. Dargel made a motion to deny the application because a 6 foot fence along Righter Road is too high for that road as it is a main thoroughfare.  We have to adjudicate based on the Township as a whole.  Mr. Crowley seconded.


Roll as follows:  Ms. Dargel, yes; Ms. Crowley, yes; Mr. Giardina, yes; Ms. Kinback, yes; Mr. Data, yes; Mr. Kurtz, yes.  Mr. Kurtz stated if it were set back about 20 feet, he would be more in favor of it.  Ms. Robortaccio, yes.  The applicant did not prove the hardship with the property.


Application denied.


Ms. Coe asked how the Board can make a decision without seeing the property.


Ms. Robortaccio said the ordinance speaks for itself.  We look at the plan.  Most of us know Righter Road.  Some members did visit the site.




Attorney Richard Keiling represented the applicant.  He said we were here at the last meeting and had gone through Mr. Stern’s report and had started on Mr. Hansen’s report.  The recommendation was for the professionals to meet before this hearing.


George Gloede, engineer for the applicant, was present and stated we received memos from Mr. Stern and Mr. Hansen regarding changes they wanted us to make.  We took care of the landscaping issues.  I met with Mr. Hansen and went over the drainage issues, some of which I was able to accomplish and some technical issues that I am working on.  Mr. Hansen requested that we reduce the slope of the driveway up to the garage.  We had to reduce the first floor elevation of the garage by one foot, and that changed all the grades.  We also removed the trench drains and put two hillside basins.  He also required grade changes.  We now have a sloped driveway.  There was also a request to do profiles of the curb line and a sight line profile at the intersection of Orben and Hillcrest.  We did that, as well as added several details to the plans.  There was a change to the tree removal plan in that we had to remove an additional tree. 


Mr. Keiling asked if new perk tests were done.


Mr. Gloede said the drywells were on the original plans, and Mr. Hansen wanted to make sure the drywells would work.  We did perk tests at the bottom of the pits, and found we have a perk rate well within the state guidelines.  We feel that is not an issue. 


Mr. Gloede said he has been working on the drainage calculations, but they are not complete yet.  I would like to discuss adding a third seepage pit with Mr. Hansen.   The drainage calculations should be done within days.


Mr. Ferriero stated the stormwater items are open because we haven’t seen the stormwater report.  Items 1 thru 17 will need to be addressed in the updated stormwater report. 


Ms. Dargel stated you say the seepage pits are designed for 20 year storms, and Mr. Hansen says they should be designed for a 100 year storm.  If the water is not contained, it will run down to Route 46.  I am concerned that the stormwater will not be retained on the site.


Mr. Ferriero said the overall stormwater management system will be designed for the 100 year storm.


Mr. Ferriero said the next section of the report deals with soil movement.  We need information relative to the route of travel.  It is my understanding it would go down Orben Drive to Rt. 46.  Any approval should be conditioned on that.  


Mr. Keiling stated there is a soil moving application dated 814/06. I would ask the Board that if there is any action on the application, the numbers would change.  We would amend the application.


Ms. Robortaccio said there are many engineering issues that remain open.  I don’t feel this is ready for tonight.


Mr. Gloede said all the additional items on page 1 have been addressed. 


Mr. Ferriero went trough the comments in the report.  Additional information needs to be provided on item 1. 


It was the feeling of the Board Mr. Ferriero or Mr. Hansen will determine what the open items are, and they will be addressed by the next hearing.


The application was carried to 8/13/07 with the applicant granting an extension to 8/31/07.


New plans will be submitted for the next hearing.


Mr. Ferriero suggested the applicant send him a set of plans when the stormwater calculations are done.




No one stepped forward.




Ms. Robortaccio announced Mountain Landscaping will not be heard and will be carried to 7/9/07 for scheduling only.




Ms. Robortaccio stated Mr. Kurtz listened to the recording of the previous hearing on this and is eligible to vote on the application.


Attorney Peter Wolfson represented the applicant.  He stated the plan we are asking you to consider is a ratio of 65% office and 35% flex space.  There is an inset on the plan that shows an alternative striping plan that would apply to a different ratio.  We have gone back and can testify we can run a range of 40% to 88% of office use with no physical changes on the site other than striping.  The plan before the Board is 65/35.  If the Board is comfortable with that scenario, it would be our wish to consider a range of 40% to 88% office.


Mr. Wiener said the Board can grant an application with parameters, but there has to be a clear understanding of what would have to happen.  The applicant doesn’t know who the tenant will be, and they don’t want to wait to return to the Board with the different percentages if needed.  They want to have the parameters approved, and the lot could be restriped to accommodate the tenants.


Ms. Robortaccio asked if they would have to go to the Zoning Officer for each tenant or to change anything within the parameters.


Mr. Wiener said yes.


Mr. Crowley asked if we have ever done this before.


Mr. Wiener said he doesn’t believe so.


Mr. Stern said there are other buildings within the industrial buildings where this type of building is permitted by the Zoning Officer, as long as the parking is sufficient.  If they come in to change the percentages, it is reviewed by the Zoning Officer.


Mr. Wolfson said in the OR-5 zone, flexible office warehouse is a permitted use with a maximum of 50% warehouse.  In the LI/OR zone there is a maximum of. 49% warehouse. In the PO-LI zone there is up to 60% maximum warehouse permitted.


Mr. Wiener said in this case it is a use variance. 


Mr. Stern said none of this could occur without a zoning permit.  A zoning permit is required for any change of tenancy or change of ownership.




Ms. Robortaccio stated one alternative that was proposed is 95% office/5% warehouse.  Is that still being requested?



Mr. Kieser stated it should be 88% office/12% warehouse.


Mr. Stern asked what the ratio is for the building shown on the plans.


Mr. Plante stated the main field shows 65% office.  Also on the plan is 79% office.  The inset shows the maximum striping we can do to redesignate loading areas as parking and still maintain one regulation-size loading zone.  The plan showing the 88% hasn’t been submitted.


Mr. Wolfson said the only difference between the 79% and the 88% is a waiver that has been discussed which would reduce one of the 60-foot long loading areas.


Mr. Plante referred to Exhibit A-8, Alternate Plan #2, showing 5 parking spaces in the northeast corner being eradicated.  It also shows the westerly loading zone shortened to 45 feet, and shows the striping of 15 additional spaces along the northerly property line facing Route 80.


Mr. Kieser said if we can’t accommodate the larger truck we won’t accommodate that tenancy.


Mr. Wolfson said that would be reviewed by the Zoning Officer.


Mr. Wiener said the maximum office space is 88%.  What is the minimum?


Mr. Kieser said 40%.


Ms. Dargel asked what the normal spread is in an approved zone.


Mr. Stern stated in an industrial district you could have 100% warehouse. 


Discussion.  It was determined by a poll of the Board the spread the Board will address is 40% to 79%.  Anything over 79% has to come back for use variance.


Mr. Wolfson said we have met with the professionals and have received updated review memos.  Most of the items are agreeable to the applicant. 


Mr. Stern went over his report dated 6/6/07 –


Item 1 – addressed 

Item 2 - addressed

Item 3 – documents need to be clarified  - applicant agrees to revise the drawings

Item 4 – plan will show two striping alternatives – one for 40%, one for 79% - (striping and a pad)

Item 5 -  addressed

Item 6 – addressed

Item 7 – variance relief requested from planting end islands along either side of the drive-in entryway. – to be discussed

Item 8 – agreed

Item 9 – circulation plan was submitted  - will be updated for the final plan submission

Item 10 -  agreed

Item 11 – agreed

12 – agreed

13 – agreed

14 – agreed

Applicant agrees to the remaining comments in the memo.


Mr. Stern went over his  updated 6/5/07 memo:


Item 1.1 – applicant has requested an extension of the ‘d’ variance if necessary – Mr. Wiener said this application keeps the ‘d’ variance in effect.

1.4 – addressed

1.6 - applicant agreed to add landscaping between Rt. 46 and the parking lot


Mr. Plante referred to Exhibit A-9, a plan showing the topography with the building superimposed on it.  It shows the viewpoint of a person standing in the eastbound lane of Rt. 46 just west of the site.


Ms. Kinback said it appears that a person in the end office would be underground.


Mr. Plante said it is about 6 feet from the sidewalk on the building side to the ground at the very highest point.  The windows are higher in that office.  The wall would be 27” above the pavement.


Albert Dattoli, architect for the applicant, stated at the top of the parapet is metal flashing.  The lower band is the same color as the brick itself. 


Exhibit A-10 was marked – view from a person standing in the westbound lane of Rt. 46 looking east at the building.


Mr. Wetzel asked if that is an accurate depiction of the setback from Rt. 46.


Mr. Plante stated yes, except for a perspective distortion.


Mr. Wetzel said it probably makes it look a little bit deeper because of the angle.


Mr. Plante said we provided landscaping in all the available areas.  The area between the parking lot and the Rt. 46 right-of-way line does have landscaping. 


Mr. Wetzel asked the height of the retaining walls.


Mr. Plante said from the surface of the pond to the highest point of the wall is about 19 feet for one wall.  From the street level the height of the wall would be about 16 feet.


Ms. Robortaccio asked what Mr. Stern’s suggestion is for enhancing the landscaping.


Mr. Stern said between Rt. 46 and the parking, and two more planting end islands along the row of parking along the face of the building.  That would result in the loss of 2 parking spaces.


Mr. Keiser said we are agreeable to the additional landscaping. That will be adjusted with different ratios.


Item 2.7 – applicant agreed to raised concrete island if permitted by DOT

Item 2.13 – Mr. Ferriero said there was a request that the sidewalk along Rt. 46 be presented separately to DEP.  I would recommend they be part of the same application.  If it becomes apparent the DEP will not allow it go forward in that manner, then make it a separate application.


Mr. Wolfson said we would be proposed that the sidewalk be considered by the DEP for consistency for the permit that has already been issued for the site.  We would submit our site improvements and would characterize the sidewalk as a request for consistency with the settlement.


Mr. Kieser said if the DEP declines the approval of the amended site plan as a result of the sidewalk, we are amenable to resubmitting it as a separate application, but we would request the granting of that ultimate approval by DEP not hold up our building permit or C.O.’s.


After discussion, it was determined the Board Engineer will be involved in the permit process to be an advocate for the township.   The sidewalks will be submitted as part of the application package, not separately.


Mr. Kieser agreed, and if it is not granted prior to construction, we will bond it.


Mr. Crowley said he would expect that the applicant will return to the Board at the time of final site plan, and prove to the Board that every effort was made to get the sidewalks.


Item 2.16 – addressed

Item 2.17 – banked parking scheme not appropriate

Item 2.22 – concept floor plan will be submitted

Item 2.23 – agreed

Item 2.24 – addressed


The application was carried to 7/9/07.


Mr. Stern said at the next meeting a main issue will be screening of rooftop mechanical equipment.


Mr. Wolfson said we will agree to raise the parapet wall 2 feet, and will provide a revised elevation drawing




No one stepped forward.




There was a 5-minute recess at 9:30 p.m.




Attorney Edward Dunne represented the applicant.  He stated at the prior hearing, the Board denied our appeal of the Zoning Officer’s interpretation.  We are here to seek a use variance to allow a clarification of the initial variance.  Ms. Arminio’s husband had passed away and she is selling the property.  We have a landscape contractor who will testify as to what he will use for his space.  There has been testimony on the current tenants.


Brian Sherence, was sworn in.  He stated he is in the landscaping business and is currently located in Flanders.  He has entered into a contract to purchase this building for his business and to lease the remaining space. 


Mr. Sherence referred to a floor plan of the lower level (marked A-1).  He stated his space is 1,800 sq. ft.  There is a caterer on that level as well that uses 1,000 sq. ft.  The other spaces on that floor are vacant.  If I were to purchase the building, I would want to use those spaces for the storage of equipment and supplies of other businesses.  The vacant spaces are 1,800 and 3,000 square feet.


Mr. Sherence referred to a floor plan of the upper level (marked A-2).


Ms. Robortaccio asked if Mr. Sherence is using the facility as well.


Mr. Dunne said Mr. Sherence has moved some of his equipment into this building.  He will move his business in there if he buys the building.


Mr. Sherence stated the upstairs space is current being used, with one vacant area.  Two of the occupied units are 1,000 sq. ft. each, and one is 800 sq. ft.  The vacant area is 1,860 sq. ft.  If I purchase the property the 1,860 sq. ft. would be leased as a single unit.  There are 4 units downstairs and 4 units upstairs.  The 3,000 sq. ft of offices upstairs would be used by my business and would be used as office for some of the other tenants who rent a space as well, if they want to, since the office space is so large.   I understand I would have to come in for zoning approval in there are additional tenants.


Mr. Wiener said what they are asking for now is to limit it to existing tenants with a bona fide lease in the building.


In answer to questions from Mr. Dunne, Mr. Sherence stated he has 10 employees.  They all come in one vehicle.  They arrive at 7:00 and are gone by 7:20.  They are back between 4:30 and 5 p.m.  We have one small backhoe and a skid steer.  They wouldn’t be at the site from 4/1/07 to 12/31/07.  We also do snow plowing, and those vehicles are the same ones we use for landscaping.  We also have 5 trucks, one of which is a dump truck and one that is a pickup truck.  The vehicles will be parked in the designated areas.


Ms. Dargel asked if the applicant is willing to maintain the historic easement from the original approval on this site.


Mr. Dunne stated that will be done.  We understand those conditions run with the property. 


Mr. Crowley asked why they can’t put a flex building here.


Mr. Stern said in about 2001 the property was rezoned from industrial to PO/R.  Because of that, by right they cannot put in a flex office/warehouse type building.   There was litigation and a settlement with the Township, and the landscaping business is what was approved by the Board.


Mr. Dunne said it never went to court.  The variance was approved by the Board.


Ms. Dargel asked Mr. Wiener to comment on what was previously approved.


Mr. Wiener said that was addressed at the last hearing.   We approved one integrated business on that site by way of a use variance.  The applicant is now in front of us seeking a modification of that prior approval so as to accommodate the users as described by Mr. Sherence.


Mr. Dunne said that is correct, and all the tenants would have to comply with all other conditions of the prior resolution. 


Mr. Wetzel said he went to the site, and it seems the drainage is still an issue. 


Mr. Wiener said that is a separate issue. 


Mr. Dunne said it is not completed.  The last level of macadam has not been set.


Ms. Robortaccio said we have been told all along that it had to be re-cut because it is too high. 


Mr. Dunne said he is looking at a list of incomplete items from Mr. Kobylarz, and that is not on the list.  We will satisfy the Township Engineer.


Mr. Stern said Condition #7 in the final site plan approval says the applicant shall provide a plan to correct the grading of the double A inlet #3 as depicted on the plan.  As noted at the public hearing, there was a discrepancy in the way this inlet was installed.  The applicant’s engineer has testified that he has reviewed the problem and determined it can be constructed in close conformance with the plan.  Condition #8 states the applicant shall install inspection ports.  There are a few issues related to that structure.


Sam Masone, who works on the site, was sworn in and stated the drainage issue was addressed with the engineer.  We cut the grate.  We put the two A grates on top of it and shot a line. After the final pavement is put on top, it will comply to the grade.


Mr. Stern stated adjacent to that there is a curb line, and there is an inlet there, and that inlet captures the water that comes off the pavement.  Is the double grate to catch water, or to provide access?


Mr. Masone said it is to supply access.


Mr. Dunne stated Mr. Kobylarz agreed to it as a field change.


Mr. Wiener said we can’t resolve this tonight.  It still has to be complied with.  The issue tonight is the use issue.


Mr. Stern said a bond is in place and that is supposed to assure compliance.  Could this be attached to use variance approval?


Mr. Wiener said if the uses are not in compliance with the site plan approval, and the noncompliance relates to a health and safety issue, there is no use of the premises until that issue is straightened out.


Ms. Robortaccio stated Ms. Arminio has the money in the escrow.  If she sells the property does the bond money go back to her?


Mr. Dunne said the bonding stays in place until the work gets done.


Mr. Wetzel asked what the incentive is to do the site properly?  The site plan hasn’t yet been properly addressed.  They should be linked.


Mr. Wiener said they are, when they are a matter of health and safety.


Ms. Robortaccio said it is questionable whether the building in the back is in the wetlands buffer. 


Mr. Dunne said it is going to be relocated so that it is not in the buffer, and the wall will be made the proper height. 


Mr. Crowley asked Mr. Dunne if there is currently sufficient parking for all the tenants to be on the site.


Mr. Dunne stated the parking comports with ordinance requirements for warehouse/office. 


Ms. Robortaccio asked if the amount of renters affects that requirement.  When I visited the site, there were already vehicles being parking where they weren’t supposed to be parked.


Mr. Stern said the requirement for this site is 16 spaces, and they provide 17.


Mr. Dunne stated some of the proposed tenants park their vehicles inside.


Mr. Stern said there is a gravel area to the left and there is a vehicle there.  That area was never to be for storage. 


Ms. Robortaccio said there is also parking along the driveway.  It’s supposed to be a turnaround for trucks.


Mr. Dunne said the owners will have to be tougher on the tenants.


Mr. Crowley suggested assigned parking spaces.


Ms. Dargel questioned Mr. Sherence about the number of employees and the number of parking spaces.


Mr. Sherence stated there are about 3 vehicles for his employees, plus his own.  The tenant spaces are not leased yet, but we wouldn’t exceed the permitted number of spaces.  It would probably be determined on the size of the tenant.  I would agree to assign spaces.


Ms. Dargel asked if there will be piles of mulch and other materials.


Mr. Sherence stated his company is substantially smaller than Mr. Arminio’s business.  I do intend to use the storage bins for things that we may not be able to store inside, such as drainage pipes.  There will be no salt products. 


Ms. Dargel asked if the tenants you have would be permitted to have outside storage.


Mr. Sherence stated since he doesn’t know who the tenants are going to be.  The outside storage may be part of the lease.  Currently, I am the only one who is using it.


Mr. Crowley asked if there is anything else we should understand that is different if you go from one tenant to multiple tenants.


Mr. Stern stated there is nothing in particular.


John McDonough, professional planner, was sworn in.  He stated he has read the prior resolution of approval dealing with a single use tenant.  I believe all the findings carry over for multi-use tenants as well – Several purposes of zoning are advanced, particularly purposes a, i, j, g, and m.  I see no substantial detriment and no substantial impairment on the zone plan and ordinance.  This is akin to a single tenant office building and the impact on parking will be none.  From a planning point I see a nexus between the two, and the approvals previously granted carry forth.




No one stepped forward.




Ms. Robortaccio stated if this is approved, there will be no zoning permits issued until the resolution items are complete, with the exception of the wetlands buffer intrusion and related issues, subject to Mr. Kobylarz signing off on the other open issues not being a hazard to health, safety and welfare and the site being safe for occupancy.   The DEP issues are to be resolved within one year.


Ms. Dargel made a motion to approve the application subject to the items discussed – specifically that there be no more than 8 total tenants; outstanding site plan issues must be completed pending a DEP determination within one year; all conditions of the resolution memorialized in 2006 still apply; no zoning permits be issued unless there is a certification by the Township Engineer that the site is safe for occupancy and that the infrastructure doesn’t constitute a hazard to the health, safety, and welfare to the use of the site, in particular, but not limited to, the drainage infrastructure.  The applicant shall immediately remediate the two drain inlets on either side of the driveway so that they are in compliance with the site plan as originally mandated.  If for some reason, these conditions are not remediated within one year, the applicant must come back to request an extension which may or may not be granted at that time.  Ms. Kinback seconded.




Roll as follows:  Ms. Dargel, yes; Ms. Kinback, yes;   Mr. Data, yes; Mr. Giardina, yes; Mr. Crowley, yes; Mr. Kurtz, yes; Ms. Robortaccio, yes.


Mr. Dunne stated the applicant is also requesting an extension of the soil bond.


Ms. Dargel made a motion to grant the extension for one year.  Mr. Crowley seconded.


A voice vote approved.




Attorney Bernd Hefele represented the applicant.  He said this property obtained original site plan approval in 1964.  (10/5/64 Resolution of Memorialization put into evidence and marked A-1).  The original approval was for a truck storage, equipment storage and repair facility.  That has been the use of this property all the way through a couple of owners.  In 2001 the zone changed from I-10 to OS.  The Board has the ability to certify that the use they propose is continuing and is the same use that was on there and that it represents a continuing nonconforming use.


Ms. Robortaccio asked what is proposed on the lot.


Mr. Hefele said we went to the Zoning Officer for a zoning permit, and he asked that I get the certification from the Board.


Mr. Wiener said the applicant has to demonstrate that there has been a continuing use by clear and convincing evidence, and that the proposed use is the same as the prior use.  


Doug Kelly was sworn in.  He stated he is the contract purchaser and is the sole owner of Owl Contracting.  We do paving, excavating and trucking.  We have trucks and construction equipment.  This property is currently used for truck storage, equipment storage, and material storage.  I have been to the site numerous times and took pictures of the site last week. 


Mr. Wiener asked if there will be testimony of the prior uses on the site.


Mr. Hefele stated we will not have any testimony, but have documents from the municipality’s files. 


Mr. Hefele stated the original approval was in 1964.  In 1977, Mr. Policastro came to the Board to continue the use as a truck repair and truck storage facility.  The Board at that time determined the application was not necessary.  The only other application was by Tree King to store firewood  and wood chipping and equipment storage.   


Mr. Hefele stated that is still going on there with Fullerton.  Policasto came to the town several times for a solid waste recycling facility and was turned down.  The only thing that is clear is the original approval has always been operating and has been allowed by this municipality.


Mr. Wiener asked what the proposed use is.


Mr. Hefele said it is the same thing.


Mr. Kelly showed a board of photos – (front side marked A-2, back side marked A-3) – and described the photos of the site. 


Mr. Hefele asked the number of pieces of equipment.


Mr. Hefele asked what Mr. Kelly will have on site.


Mr. Kelly stated there will be 9 dump trucks, 2 lowboy trailers, 6 paving rollers, 4 paving machines, 7 backhoes.  This site will be just for my equipment.  There will be no wood chipping operation.  I would return to the Board if I want to rent space out to others.  All the current tenants will be moved out. 


Mr. Crowley asked if there has been any gap in time when the site was not being used for storage.


Mr. Hefele said there was no gap. 


Mr. Wetzel asked if any of the waste material will be stored here.


Mr. Kelly said no.  The only thing that might be there is catch basin blocks, manhole risers, etc.


Ms. Dargel said there is no buffer between the parking lot and the pond.  What would you do to protect the pond?


Mr. Hefele said if we were to build there, we would have to apply for site plan approval.  All the use of the site predates the freshwater wetlands regulations, and we are exempt from those.  When Policastro was operating  the site, DEP came out and there was enforcement action.  That was a DEP enforcement action in the 1980s, and that has been taken care of.


Mr. Wiener said the Board needs to determine if this is a continuing nonconforming use. 




William Egbert, 25 Little Lane, was sworn in.  He said this property has been abused and needs proper management.  It has had multiple uses.  I am happy to see Mr. Kelly’s intent to make it a single-use operation.  The property is not seen from Berkshire Valley Road, and people do lots of things there.  The DEP has been in there, the Health Department has been in there.  During Mr. Policastro’s time there, they were functioning as a transfer station.  I had a tenant complain about the rats there.  I am optimistic that if this is granted, Mr. Kelly will keep those things in mind.  The pond is a sensitive water body, and that should be kept in mind.


No one else stepped forward.




Mr. Wiener said the 1964 Site Plan shows a paved parking lot and a building with two overhead doors.  That seems to be the area of the site that was to be used.  Exhibit A-4 shows some parameters.  Mr. Kelly has testified as to what his operation would be.  The Board has to determine whether it has been established by clear and convincing evidence what existed prior to the change in the zoning ordinance, that it was legal at the time that it existed, the general area where it existed, and that it was a continuous use until this day.  It also needs to be established that what Mr. Kelly is proposing is consistent, and that many of the uses on the site were never apparently approved. 


Mr. Stern said the use of storage trailers would not be permitted on the site.  You would be utilizing the garage for repairs.  What does it mean that it will be a “trucking operation”?


Mr. Kelly said he has 7 dump trucks that would be used to deliver asphalt and other materials.


Mr. Kurtz suggested that if there is a motion to approve, the site plan be delineated as to where the storage will occur.


Mr. Wiener stated Exhibit A-4 does make some delineation.  I think if the Board were to make a finding that the use described by Mr. Kelly would amount to a continuing nonconforming use, and that it be limited to that, and that many of the other uses described on the site clearly went beyond what was permitted, the Board could do that.


Mr. Hefele said the applicant would limit the storage to the area shown in brown on Exhibit A-4.  That is the gravel area.


Mr. Wiener said in making that finding, it would not provide the applicant or any user of  the property with immunity should any of those areas be in violation of any environmental constraints or anything else.


Mr. Data made a motion that what Mr. Kelly has described would be within the boundaries of the prior nonconforming use, and that the site would be limited to 55 vehicles/equipment  in the area shown in brown Exhibit A-4.  This approval does not grant the right to violate any environmental constraints or to do any activities beyond what is permitted.   All other pieces of equipment currently on site shall be removed.  Ms. Dargel seconded.


Roll as follows:  Mr. Data, yes; Ms. Dargel, yes; Ms. Kinback, yes; Mr. Giardina, yes; Mr. Kurtz, yes; Mr. Crowley, yes; Ms. Robortaccio, yes.


The meeting was adjourned by motion at 11:30 p.m.


                                                            Dolores A. DeMasi, Secretary