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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
BA-07-30 – DENNIS & KELLEY HASTIE – VARIANCE FOR
ADDITION LOCATED ON HELEN ST. , BLOCK 1605, LOT 3 IN R-3 ZONE
In the matter of Kelley &
Case No. ZBA-07-30
RESOLUTION OF FINDINGS AND CONCLUSIONS
BOARD OF ADJUSTMENT
TOWNSHIP OF ROXBURY
Memorialized: June 11, 2007
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
the Board, after carefully considering the evidence presented by the applicant
and having conducted a public hearing has made the following factual findings:
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:
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:
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.
BA-07-24 – SANDRA ARMINIO – INTERPRETATION OF THE
ORDINANCE/APPEAL OF THE DECISION OF THE ADMINISTRATIVE OFFICER
In the matter of Sandra
Case No. BA-07-24
RESOLUTION OF DENIAL
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
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
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.
RESOLUTION ADOPTING ANNUAL
REPORT FOR 2006
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
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
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.
BA-07-34- DANIEL &
KIMBERLY COE – VARIANCE FOR 6 FT. FENCE IN FRONT YARD LOCATED ON NORMAN
LANE/RIGHTER RD. BLOCK 1702, LOT 1 IN R-2 ZONE
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
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
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
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
PUBLIC PORTION OPENED
No one stepped forward.
PUBLIC PORTION CLOSED
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.
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
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
Ms. Robortaccio said there are
many engineering issues that remain open. I don’t feel this is ready for
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
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.
Ms. Robortaccio announced Mountain
Landscaping will not be heard and will be carried to 7/9/07 for
BA-7-07 - WOODMONT REALTY – SITE PLAN FOR WAREHOUSE/OFFICE
LOCATED ON RT. 46, BLOCK 9603, LOT 3 & 4 IN OB ZONE
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
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
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
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
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
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
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
Item 2.22 – concept floor plan
will be submitted
Item 2.23 – agreed
Item 2.24 – addressed
The application was carried to
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
There was a 5-minute recess at 9:30 p.m.
BA-07-23 – SANDRA ARMINIO –
USE VARIANCE FOR CHANGE OF TENANCY LOCATED ON SHIPPENPORT RD. BLOCK 10101, LOT
32 IN PO/R ZONE
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
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
Ms. Dargel asked if the applicant
is willing to maintain the historic easement from the original approval on this
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
Mr. Wetzel said he went to the site, and it seems the
drainage is still an issue.
Mr. Wiener said that is a
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
Mr. Masone said it is to supply
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
Mr. Stern said a bond is in place
and that is supposed to assure compliance. Could this be attached to use
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
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
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
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
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
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
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.
PUBLIC PORTION OPEND
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.
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
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
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
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
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
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
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.
A. DeMasi, Secretary