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MINUTES
MENDHAM
TOWNSHIP
PLANNING BOARD
REGULAR MEETING
DECEMBER 15, 2004
Chairman Giordano called the
meeting of the Mendham Township Planning Board to order at
7:43 p.m.
He noted Mrs. Warrington’s
absence from the meeting, for the record, and stated that Mr. Mountain would act
as Secretary.
ROLL
CALL:
Present:
Mr. Giordano, Mr. Tolley, Mayor Pierson, Mr. Mountain, Mrs. Link
Absent:
Mr. Majorossy and Mr.
D’Emidio
SALUTE TO THE FLAG
ADEQUATE
NOTICE of this meeting
of the Mendham Township Planning Board was given as follows:
Notice was sent to the DAILY RECORD and the OBSERVER
TRIBUNE on
January 8, 2004
. Notice
was posted on the Bulletin Board in the Township Hall in
Brookside
,
New Jersey
on
January 8, 2004
, and Notice was filed with the
Township Clerk on
January 8, 2004
.
MINUTES
–
November
1, 2004
,
vote
all aye,
with minor correction
September 7, 2004
, vote all aye
MASEFIELD
PRELIMINARY MAJOR SUBDIVISION – APPLICATION 04-04
Chairman
Giordano stated for the record that several letters have been received from area
residents, and pursuant to the advice of counsel, they have not been entered as
evidence, the Board has not read them, and while they have been placed in the
file, they are not part of the record. He
stated that there would be a public session which will give an opportunity for
any person present to make statements, comments or ask questions.
Because this is a quasi-judicial proceeding, the applicant must be able
to have an opportunity to cross-examine any person wishing to place testimony
into the record. Chairman Giordano
further said that neither the Board nor anyone connected with these proceedings
had actually read the letters, with the exception of the Board Secretary who
placed the letters in the file.
Mr. Falcon explained that
the reason for the advice given is that there are opinions which have been
rendered by the courts of the state that say a Planning Board or Board of
Adjustment, when considering an application, cannot consider petitions filed by
citizens, for or against the applicant, and may also not consider letters.
Planning Boards and Boards of Adjustment are acting in a quasi-judicial
function and have to do what a court would do and judges do not read letters
about a matter before the court. He
said anyone who has written such a letter is free to come to the proceeding and
state their concerns or what they said in their letter, which would become a
part of the record. He further said,
as to the letter itself, the Board is not entitled to consider that kind of
thing in this proceeding as such will not become part of the information upon
which the Board relies in coming to a determination in the case.
Mr.
Peter Henry from Dillon, Bitar & Luther in
Morristown
, introduced himself as counsel for the
applicants, Mr. and Mrs. John Masefield, who have a pending application before
this Board for a major subdivision. Mr.
Henry thanked Mr. Falcon for addressing the issue and raised another legal issue
that has come to his attention regarding a fax received by Mr. Falcon.
He said the fax raised an objection with respect to notice of this
application, and as he understands it, since their plan shows the potential
extension of Wright Lane across lot 51, the objection is that notice should have
been given to all owners within 200 feet of lot 51, not simply the owners of lot
52. Mr. Henry said he does not agree
with the proposition that lot 51 is part of the subdivision application, and the
road, to the extent that it may be extended across lot 51, cannot be extended as
it is not the applicant’s property, they don’t own it, they cannot submit it
to the jurisdiction of this Board, as the owner of that property (e.g., lot 51)
has not consented. Mr. Henry stated
that they have said to the Township, since the Township thought it would be
worthwhile to have that road extended to connect Carriage Hill and Saddle Hill,
they would bear the expense of extending the road, if, as, and when the Township
acquires title to that portion of lot 51 which is necessary for the extension.
Mr. Henry said their subdivision could be completed whether or not that
ever happens, and they assume it will happen.
He further said the Township has indicated a desire to do that and enter
into the appropriate appraisal and negotiation process, and it is for the
Township’s own purposes – the Master Plan circulation element and emergency
services.
Mr.
Henry said we are discussing a potential event that could happen, if certain
conditions are satisfied in the future, which would affect the property; he
believes that distinguishes this case from the case cited by the opponent to
this application going forward. Mr.
Henry said he believes they have given notice to people within 200 feet of where
the proposed road is to be extended, albeit by indirection, but given where the
lots are, the notices to people within 200 feet of lot 52 satisfied the
requirement for notice to people within 200 feet of the road extension between
the edge of lot 52 and Carriage Hill Drive.
He said he believes, for either or both of these reasons, the applicant
should be permitted to go forward as they have done what needs to be done to
bring this properly before the jurisdiction of the Planning Board.
Mr.
Henry proceeded to say that given what he understands to be the expressed
opinion of the many people in the audience, and not wanting to waste time,
effort or money, he has discussed the matter with Mr. Masefield.
Mr. Henry then requested that the Planning Board carry this matter to the
January meeting, and they will notice residents within 200 feet of lot 51, to
the extent they haven’t been noticed to date.
He said it is simply a matter of removing that potential issue from any
further action that this Board might take.
Chairman Giordano responded
that it is best to simply satisfy that issue by so giving notice, and from an
administrative standpoint, he saw no problem extending the matter to the January
meeting.
Mr.
Falcon indicated that he had received a letter late this afternoon from Richard
Trainor of Porzio, Bromberg & Newman raising this notice issue and citing
the Brower case. Mr. Falcon
said he is not sure he agrees entirely with the necessity to provide notice for
the corner of a lot that a roadway traverses.
He noted that the applicant has now indicated they will adhere to that
standard and notice the additional individuals.
Mr. Falcon addressed Mr. Trainor in the audience and asked him if the
notice issue would be satisfied, in his view and under his interpretation of the
meaning of the case, and Mr. Trainor indicated yes.
Mr. Falcon discussed the matter of giving notice midway in a case and the
necessity for revisiting or recapping the testimony given at the first hearing.
Mr. Henry said he understood the concept of that and had no problem with
saying they would revisit various issues, but he believes it is unnecessary and
inappropriate to pretend that they are going to literally repeat every word that
was said. Mr. Henry said that, so no
one is left behind who might be interested, they could provide in summary
fashion the substance of the first hearing and then move on to where the
application is now before the Board with the revised plans.
Mr. Falcon said to the extent to what is recapped is in Mr. Henry’s
discretion and is what should happen.
Mr.
Tolley asked about the population of the group to be notified, and Mr. Henry
said he knew of at least one additional owner, but was not sure how many
exactly.
Chairman
Giordano asked Mr. Henry if the
January 19, 2005
, meeting date was suitable, and Mr.
Henry said it was fine. Chairman
Giordano confirmed for the record that the Masefield matter is continued to the
January 19, 2005
, Regular Meeting.
Chairman
Giordano stated that Mr. Tolley had pointed that the public session portion of
the meeting was not included on the agenda, and suggested amending the normal
order of business.
PUBLIC SESSION
Upon
motion duly made and seconded, the meeting was opened to the public for comment.
Mr.
Russ McCabe, 16 Carriage Hill, asked for clarification that everyone will be
renoticed so there is a concise, completed list of appropriate notification.
Chairman Giordano responded by stating that Mr. Henry is going to simply
notify those additional people with respect to the fact that this application
has begun.
Mr.
McCabe asked if it was possible to get the revisions that have been to the
application, and Mr. Balut stated that revised plans were filed.
Chairman Giordano suggested contacting Mrs. Warrington, the Planning
Board Secretary, for revised plans and any other documents or transcripts of the
first meeting, and noted they are also available for review.
Mr. Mountain stated that copies could be made at an expense.
Mr.
Harold Borden, 20 Saddle Hill Road, said he understood the counsel for the
applicant was stating that the town apparently has a desire to put the extension
of Wright Lane through to Carriage Hill and asked if there was testimony that
went into the record in November on behalf of the town that supports the
rationale or basis for doing that. Mr.
Falcon said there was not testimony offered on behalf of the town, but the
applicant offered testimony interpreting the Township’s Master Plan
requirements, which call for the connection of this road.
Mr. Kimball stated that he reported in his original report dated
November 9, 2004
, that the circulation plan called for
the connection of
Wright Lane
to Saddle Hill.
Mr. Borden asked if a copy of the report was available in the Planning
Board Office, and Chairman Giordano said that all of the records are kept in the
Planning Board Office and available for review, and Mrs. Warrington can provide
copies of whatever is needed.
Upon
motion duly made and seconded, the meeting was closed to the public.
ACCESSORY STRUCTURES
Mr. Falcon stated that the
Planning Board had asked him to revisit the definition of accessory structure,
and he referred to a copy of the suggested language that had been provided to
all. A full discussion then ensued
regarding the proposed definition provided by Mr. Falcon, and as a result, it
was suggested that Mr. Falcon and Mr. Kimball discuss this further and come back
to the Planning Board with a definition that is mutually agreeable.
Mayor Pierson provided an
update on the draft Historic Preservation Ordinance and noted that the Township
Committee had received the Planning Board resolution stating that the ordinance
was in conformance with the Master Plan. He
further said that the four items that accompanied the resolution received a
considerable amount of discussion, there were a couple of unresolved issues, and
the Township Committee said they would start a new first reading in January.
Mr. Balut introduced Mr. Tom
Lemanowicz as the professional engineer who would be replacing him, and Chairman
Giordano welcomed Mr. Lemanowicz on behalf of the Planning Board.
RESOLUTION OF APPRECIATION
FOR CHARLIE BALUT
Chairman Giordano read aloud, for the record, the
Resolution of Appreciation for Charlie Balut.
A motion was duly made and seconded to adopt the Resolution of
Appreciation for Charlie Balut; vote all aye.
Mr. Balut thanked the Planning Board and said he really
enjoyed his time with
Mendham
Township
.
ADOURN
There
being no further business, a motion was made to adjourn the meeting.
The motion was seconded, all aye, and the meeting was adjourned at
8:43 p.m.
Respectfully
submitted,
Hope
Warrington
Planning
Board Secretary
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