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MINUTES
MENDHAM
TOWNSHIP
PLANNING BOARD
REGULAR MEETING
DECEMBER 17, 2003
Chairman Giordano called the meeting of the Mendham
Township Planning Board to order at
7:35 p.m.
ROLL
CALL:
Present:
Mr. Giordano, Mayor Pierson, Mrs. Kinsel, Mr. Mountain, and Mr. Timpson
SALUTE TO THE FLAG
ADEQUATE
NOTICE OF MEETING of the Mendham Township Planning Board was given as
follows: Notice was sent to the Daily
Record and the Observer Tribune on
January 9, 2003
.
Notice was posted on the bulletin board in the Township Hall in
Brookside
,
New
Jersey
, on
January 9, 2003
, and Notice was filed with
the Township Clerk on
January
9, 2003
.
STATEMENT
OF EMERGENCY EVACUATION PROCEDURE: “In
case of an emergency requiring the evacuation of this room there are two
emergency exit doors along the side that you entered.
In the foyer you may then either exit down the open stairwell to the
exterior or enter the enclosed stairwell and exit to the exterior at the bottom.
Then please move away from the building until instructed that it is safe
to re-enter.”
MINUTES
FOR APPROVAL --
December 1, 2003
, vote all aye.
BANKO – Minor Subdivision
Mr. Michael Rodgers of Uffelman Rodgers & Kleinle
introduced himself as counsel for the applicants, Jim and Nancy Banko.
He also introduced Mr. Dave Fantina of Fantina Engineering as the
engineer for the applicant. Mr.
Rodgers stated that they would begin with Mr. Fantina presenting an overview of
the application followed by a review of the reports from each of the
professionals.
Chairman Giordano confirmed with Mr. Rodgers and the Board
Secretary that adequate notification had been provided and found the notice
requirements to have been satisfied.
Mr. Falcon swore in the witnesses and the experts.
Mr. Fantina stated that the Banko's presently own 20.8
acres, known as Block 113,
Lot
2, with frontage on
Old Mill Road
in a 10-acre residential zone. He
said they are proposing the creation of one new lot (
Lot
2.01), and they will then have 2 10-acre lots in accordance with the zoning
ordinance. Mr. Fantina further
stated there is insufficient footage on
Old Mill Road
and they will need to request footage variances for both the existing and new
lot. He also said they will need to
request variances for the locations of the lot geometry circles because while
they can meet the circles required by the Township Ordinance, they cannot meet
the requirement that the circles be adjacent to the road.
He noted that the Banko house, as part of a pre-existing condition, would
require a variance from the requirement for an 80-foot side yard setback (which
is presently at 52 feet notwithstanding that it was conforming when it was
built). Mr. Fantina stated that the
property is on the border of
Chester
Township
and Burnett Brook and the back portion of the property is steep and slopes down
to the Brook and the majority of the property is heavily wooded with the
exception of the area around Mr. Banko’s house and the small pond behind Mr.
Banko’s house. He said they are
proposing to build a driveway extension to the back of the lot, with an entrance
from
Old Mill Road
, and they will be tying into the most southerly of the two entrances from Old
Mill onto the Banko property. It
will not be a new entrance but they will instead utilize the existing entrance
with reshaping to some extent. Mr.
Rogers noted that, at the Board’s request, a plan of the driveway has been
prepared that shows the location of the trees and the cartway.
Chairman Giordano welcomed questions for Mr. Fantina from
the Board members.
Mayor Pierson asked about the width of the driveway, and
Mr. Fantina stated that it is 30 feet wide.
Mayor Pierson also asked if the house shown on the second lot was
theoretical at this point, and Mr. Fantina said yes.
Mr. Rodgers started with the report from Kimball &
Kimball dated
December 9, 2003
, and referred to the third bullet under the “Regulatory Requirements” on
page 2 where Mr. Kimball asked that the diameter of the proposed lot geometry
circle on the new lot 2.01 be shown on the plan.
Mr. Rodgers stated that he wasn’t sure this information was critical
and noted that they are asking for a variance for the lot geometry circle if
located at the street. Mr. Kimball
said it would be helpful to know the extent of the violation and it is usual for
him to request the extent of the variance.
Chairman Giordano referred to the italicized paragraph on
the first page of the Kimball & Kimball report and asked Mr. Fantina, for
the record, to explain further the uncontested 1.8 acre area mentioned for the
purposes of this subdivision. Mr.
Fantina pointed to the area on the plan and in response to Chairman Giordano’s
questions, he stated that if this piece was found to belong to the Banko’s, it
would not change the location of the driveway, and it would not change the
location of the lot geometry circle. Mr.
Rodgers stated that the location of the driveway and the location of the house
would be approximately the same whether the Banko’s owned the piece of land or
not.
Mr. Rodgers explained that the next point is to discuss the
planning aspects of the variances and the planning criteria that must be met and
is clearly spelled out in Mr. Kimball’s report.
He said that they do not have a planning witness but would like to have
Mr. Fantina explain this further in factual manner.
Mr. Falcon questioned whether Mr. Rodgers was going to have testimony
offered from a planner or someone qualified to make an opinion as to the
criteria. Mr. Rodgers stated
that the planning criteria in this application is straightforward and can be
explained factually, and if the Board feels insecure with the planning
objectives being met, they are happy to adjourn and bring in a planning expert.
Mr. Rodgers then proceeded with questioning Mr. Fantina in his capacity
as an engineer regarding the planning criteria.
In response to Mr. Rodgers’ questions, Mr. Fantina
stated:
1)
the lot has unusual features --
unique narrowness in the front; unique topographical features; steeply
sloped down to the Brook and too steep to be developed
-- creating a hardship.
2)
that 20+ acres with 100 feet of frontage is unique.
3)
that this lot cannot be subdivided without variances; it has been
looked at several times;
4)
that this subdivision has a positive influence on the zoning plan
and the neighborhood and preserves the 10-acre zone scheme – positive
criteria.
5)
that the streetscape will be unaffected with virtually no visual
impact and the 10-acre zone will be preserved
6)
there will not be any negative impact on the zone plan or
neighborhood as the location of the house will be essentially invisible to any
houses and the new construction house will be 400 feet or so away.
7)
that the rural streetscape will not be affected as there is not a
new driveway; it is completely unchanged.
8)
that the moving of the lot geometry circle back onto the property
provides enough room for a full size lot geometry circle, and there will be
sufficient contiguous land use that the lots will be susceptible to easy usage
and easy proper development.
9)
that there are no aspects of either the existing house or new
house that will make use and maintenance different.
10)
that the lot frontage is 70+ on the existing lot and 30+ on the
new lot and has provided safe, adequate and reasonable access for over 70 years
and that will not change with two houses accessing it instead of one.
Chairman Giordano requested, for the record, a brief
description of Mr. Fantina’s credentials for the benefit of the public and an
explanation as to why Mr. Fantina signed four of five sheets of the plans and
not the first page from which he appeared to be testifying.
Mr. Fantina stated that he is not a surveyor and a surveyor needs to sign
the first sheet, and he said Jim Mantz, who is an independent contractor working
for Fantina Engineering for the purposes of this project, signed the first page.
Mr. Fantina stated he has a Bachelor’s and Masters in civil engineering
from Rutgers University; has been a licensed professional engineer since 1987;
has 20 years of experience as an engineer; has been proprietor of Fantina
Engineering for 2-1/2 years; and, has testified in front of dozens of boards in
New Jersey on hundreds of occasions.
Chairman Giordano asked if there were any questions from
the Board or members of the public regarding Mr. Fantina’s qualifications, and
since there were none, Mr. Fantina was qualified as an expert.
Chairman Giordano then asked Mr. Kimball to comment on the testimony
provided.
Mr. Kimball said that Mr. Rodgers has addressed the
criteria as set forth in his report and noted that it is up to the Board to make
its own judgment as to whether the criteria has been met.
He reiterated that the overriding goal of the Master Plan is to preserve
the traditional, rural and historic nature of the Township and that bears on
this application in the sense that the layout of this application does
inherently promote that. He said
that the development will almost be invisible except for the driveway and noted
that it is to everyone’s advantage, the Banko’s, the future owner, and the
Township, to ensure the driveway entrance is as attractive as possible.
Mr. Kimball also questioned whether the oak trees in the 30
foot area for the driveway would have to come down, and suggested seeking
flexibility to allow for wiggling the driveway in those specific areas to
prevent removal of those trees.
Chairman Giordano asked the Board if there were any
questions of Mr. Fantina and Mr. Kimball, and discussion ensued regarding the
driveway and the piece of property that is unclear as to ownership.
Mrs. Kinsel questioned if the Township was comfortable with leaving the
lot lines in limbo and proceeding with the application.
Mr. Falcon stated that the applicant has presented a configuration that
assumes that it is owned by the Township and proceeds on the basis of what they
claim to own and is of no disadvantage to the Township.
Mr. Mountain stated that he was comfortable on the question
of variance criteria after hearing Mr. Fantina’s presentation and Mr.
Kimball’s remarks. He asked Mr.
Kimball if, in his professional opinion, there was any value to the Board, based
on what has been heard, to ask the applicant to bring in a planner to further
the testimony or is the presentation that has been made substantial enough to
make a judgment. Mr. Kimball stated
that Mr. Rodgers has addressed the criteria but the Board should make the
finding as to whether or not the arguments are credible, and he does not want to
prejudice the record or the Board’s judgment.
Mr. Falcon stated that the applicant has the obligation to put on a case
that would justify the Board granting the relief requested and wants to be sure
to create a record that would be sustained if scrutinized later. He said he has
observed times when an applicant, for whatever reason, elects not to engage the
services of a planner where the variances are so self evident that laying the
facts before the Board probably creates enough for the Board to go ahead and
make a determination. He said it is
fair to say here that the fact that Mr. Kimball has stated that the goals of the
Township Ordinance have been advanced goes a long way.
Mr. Falcon further stated that he thinks he would have brought a planner,
but if the Board finds that the number of variances that have been requested are
relatively minor in number and the rationale has been set up in a way that
allows the Board to exercise their discretion, they are free to do that.
Mr. Kimball emphasized that another important aspect of judging whether
there is a substantial negative impact is when the public hearing is open and
anyone who has an adverse impact or perceives an adverse impact can bring this
to the Board’s attention.
Chairman Giordano raised a concern about the proposed
driveway for the new lot 2.01 appearing to be extremely close to the southerly
property line and referred to the Township Ordinance that requires that
driveways be a certain number of feet from the property line.
Mr. Balut said it is really not applicable to this type of development
because it cannot be placed anywhere else. Chairman
Giordano suggested that, for the record, Mr. Fantina should testify that, in his
professional opinion, it is the only place for the driveway, considering that
the owners of Block 113, Lot 3, may be concerned with the violation of the 40
foot side yard setback. Chairman
Giordano instructed Mr. Fantina to note this on the plan and Mr. Falcon to add
this to the list of variances requested. Mr.
Banko said that he had personally discussed his subdivision application and the
location of the house with Mr. Bilinkas, the property owner of Block 113, Lot 2.
Mr. Rodgers referred to the report from Connolly
Environmental dated December 10, 2003, and reviewed page 2 as follows:
1.
He asked Mr. Fantina if it was necessary to address the
limitations of the onsite soils. Mr.
Fantina said the comment comes from the information from Morris County Soil
Conservation and explained there is a moderate hazard for construction of homes
and septic systems and states that it is moderate because of the slopes.
He said they are staying out of the slopes and these conditions are easy
to deal with. He said the septic and
basement will not be deep and a lot of homes in the Township are built on these
kinds of soil. He pointed to another
area towards Old Mill Road that is indicated with severe limitations for
foundations with basements, and Mr. Fantina said they are not putting any
dwellings in that area. He also said
it shows the seasonal high water table is at a depth of
6” to 4’, and he doesn’t believe there is any area on the property
that has water tables that shallow and could be an error on the soil survey.
2.
Mr. Fantina said that the potential and expected soil losses can
be done as a simple calculation and he will do that.
3.
Mr. Fantina said that the number and specimen of mature trees that
will be destroyed has been stated on page 3 and 5 of the subdivision plan and
will provide a table or chart.
4.
Mr. Fantina said that the area and relative portion of the site
disturbance that is proposed to occur in steep slopes has been shown on sheet 3
and can be added to the EIS, if appropriate.
5.
Mr. Fantina said the location for the septic was chosen below the
house and behind the house because it seemed to be the best location for gravity
at the house’s proposed location.
Mayor Pierson asked about the septic tank distance to the
property line, and Mr. Balut said the disposal field has to be 25 feet and the
tank normally doesn’t get that close because it has to be near the house.
Mr. Fantina indicated that sheet 2 shows the septic system, and it is 45
feet from the property line. Mrs.
Kinsel inquired about the applicant’s Board of Health application, and Mr.
Fantina said they are on the January agenda.
Mrs. Kinsel expressed her concern about the downhill
disturbance, given the Master Plan goal of zero disturbance, and urged the
applicant to consider other location options in order to protect the
environment. Mr. Rodgers stated they
have considered the various locations, and they feel this location is the best
location to lay out the lot and make it a nicely designed lot with a minimal
amount of invasion to steep slopes. Mr.
Rodgers said they could be flexible if the Board feels strongly about it and
wants a discussion of other possible locations.
Mr. Rodgers then referred to the “Recommendations”
portion on page 2 of Mr. Aubin’s letter and stated that:
1.
this has already been addressed.
2.
alternative septic system locations has already been addressed,
and if the Board wants a discussion, they can do this either now or later.
3.
this has already been done.
4.
the Environmental Commission’s recommendations, also addressed
in Mr. Balut’s report, will be incorporated.
5.
the applicant hired a wetlands expert to do soil and vegetation
review and delineate the wetlands and a surveyor to study the flags marking the
wetlands and incorporate the wetland line on the map.
Mr. Rodgers said the LOI interpretation simply means that a DEP wetlands
professional would look at this and see if he agrees with it, but this will
likely result in a delay of six to nine months.
Mr. Rodgers said this does not accomplish anything and they are
requesting a waiver of the LOI.
Mr. Aubin stated that they have addressed the question
about limitations for community development, and noted they will provide the
soil losses and trees to be destroyed. He
noted his concern about the steep slope disturbance and given the 25 percent
slopes that are being discussed, the alternative is using a system that pumps up
to a more level portion of the site and should be considered.
This is a very serious consideration on the site and an alternative
analysis should be put forth and presented to the Board.
Mr. Aubin explained that the field location proposed driveway entrance
means an actual on-site meeting with the engineer and field locate where the
driveway will be located. He also
feels strongly that all of the Environmental Commission recommendations be
included and also noted that what DEP may come back with is not necessarily what
a wetlands expert finds and stands by his recommendation that the applicant get
an LOI and that any approvals should be conditioned upon receipt of an LOI.
Chairman Giordano called for questions from the Board, and
a full discussion ensued regarding the septic system location.
Mr. Rodgers then referred to the 11 items under
“Background” in the report from Maser Consulting dated December 9, 2003,
from Mr. Balut, and it was presented that:
1.
that this recites the requested variances that have already been
reviewed.
2.
that any approval be conditioned upon receipt of an LOI has
already been discussed and is up to the Board.
3.
that this has already been discussed and noted that they can look
for alternative locations if the Board requests it.
Chairman Giordano then stated that it is a serious request from the Board
that additional details for an alternative location be investigated and
presented to the Board. Mr. Rodger
said they will be investigated.
4.
the location of the proposed new wood lines after site disturbance
will be shown on the plans.
5.
the location of site utilities will be shown on the plans.
6.
the soil log data will be shown on the plans.
7.
the typical driveway cross-section will be included.
8.
a storm water analysis has not been submitted but the drywells are
shown and in response to the comments from the DPW regarding water running onto
Old Mill Road, notes were added on sheet 5 to pitch the driveway.
Mr. Fantina also said that he will be happy to work out whatever Mr.
Balut would like done. Mr. Balut
indicated that these issues, such as the location of the driveway, the passing
area mentioned in item #11, and the location of the drywells for storm water
management, could be decided in the lot development stage.
9.
conservation easements will be discussed later on.
10.
the site distance measurements will be shown.
11.
the passing area will be included in the driveway design.
Mr. Rodgers then commented on the suggestion that
consideration be given to lot size averaging, and he stated that the applicant
prefers not to do that. Mr. Fantina
explained that they had three variations and if the goal is to get better area
for slopes and trees, the applicant prefers this plan.
Mr. Rodgers said that in keeping the lot line where it is, they have 2
ten acre lots that conform to the ordinance and each one allows for a viable
forest management program and will later discuss the forest management plan that
is in place.
Mr. Rodgers then raised the conservation issue and stated
that Mr. Banko feels very deeply that the conservation easement is not necessary
in light of the existing ordinances. He
explained that the tree removal section of the ordinance prohibits any tree
removal without approval of the appropriate body and makes an exception for a
forest management plan. He then
noted the steep slope ordinance, which prohibits any development beyond 5
percent and NJ State and municipal regulation that imposes 150-foot buffers
around the stream and the wetlands. Mr.
Rodgers said they feel strongly that an easement that gives the Township rights
to this land that go beyond the existing ordinance is not necessary and
requested that the Board consider not requiring a conservation easement.
If the Board does require an easement, he asked that the contents of the
easement be addressed for a couple of changes that would be needed, otherwise
the easement would destroy this property. In
particular, Mr. Banko has a forest management plan promulgated by the Morris
County Soil Conservation District by a forester approved by them and the plan is
approved by the State Forestry Service as being designed to enhance the quality
of the forest and sustain a low yield of timber, which qualifies the land for
the farmland assessment. Mr. Rodgers
briefly explained the forest management program in place, asked the Board to
consider not imposing a conservation easement on this property, and suggested
that Mr. Banko’s views be heard. Mr.
Banko stated they have had a forestry management program since 1988 and the
program itself is designed from MCSCD and the forester, Mr. Tom Doty, visits the
site at least once a year. At Mrs.
Kinsel’s request, Mr. Banko provided Mr. Aubin with a copy of his forestry
management plan. Mr. Banko also said
the state forester comes out periodically and was on the site today.
He further said they don’t like to cut trees and noted that he
doesn’t make a lot of money on a harvest because most of the trees that are
harvested are trees that are twisted from fighting to get light or are half
dead. Mrs. Kinsel asked Mr. Banko if
he was harvesting on greater than 25 percent slopes, and he said the plan is set
up to do slopes that are in areas less than 25 percent but that some of the
trees in the last harvest could have been on the 25 percent slope.
Mrs. Kinsel stated for the record that protecting tax assessments on a
lot is not listed as a priority in the MLUL as one thing we should consider.
She understands that Mr. Banko has a forestry management plan and has a
great respect for trees and managing his land, but the Board has to consider the
lot and not the owner because Mr. Banko could move tomorrow.
A discussion then ensued regarding the forestry management
plan, the ordinance and similar situations in previous applications.
Mr. Falcon noted that the Board encountered the same situation in a
recent application where the applicant also had a forestry management plan and
in the resolution of approval we were able to harmonize the requirements of the
conservation easement with the practices employed in the forest management plan.
Mr. Rodgers presented the “Forest Stewardship Plan”
designed by MCSCD as Exhibit 1” dated December 17, 2003, for the record.
Mr. Rodgers then referred to the comments from the
Environmental Commission and referred to the following items:
1.
Wetland and transition area delineations have been done.
2.
The conservation easement is being discussed.
3.
The steep slope easement is being discussed.
4.
The septic system location has been discussed.
5.
Lot size averaging has been considered.
Mr. Rodgers noted that there were no comments from the
Police Department and then referred to the comments from the Department of
Public Works regarding drainage and/or catch basins.
Mr. Fantina stated that with the addition of drywells to the driveway and
cross-sloping, minimal water will reach Old Mill Road.
Upon motion duly made and seconded, the meeting was opened
to the public.
Mrs. Sarah Dean Link introduced herself as representing the
Environmental Commission and stated that the conservation easement on Burnett
Brook is a stream conservation easement that is required under the Township
Ordinances and is not the same as the conservation easement on the slopes – it
is two different sections in the ordinance.
She then referred to the slopes over 25 percent and the forest management
plan and the fact that the Tree Protection Committee has no jurisdiction over a
forest management plan. Mrs. Link
said that this is an opportunity to protect these slopes that drain to the trout
production stream. She also said
logging had been done on these slopes a couple of years ago, and she believes
that some accommodation can be reached with Mr. Banko to protect those slopes.
Mr. Phil Eberhardt of 34 South Road, Block 26, Lot 66.02,
in Chester Township introduced himself and said that when his subdivision was
done, they were required to comply with the conservation easement, and it
doesn’t affect his land use and/or farm assessment.
He questioned whether the Mendham Township ordinance was similar to the
Chester ordinance and if any site improvement could be done within his
conservation easement. Mr. Falcon
responded that he is not familiar with Chester’s ordinance but believes that
the general drift of what he described is similar.
Upon motion duly made and seconded, the meeting was closed
to the public.
Chairman Giordano stated that since there is further work
to be done, this application was added to the agenda for the January 21, 2004,
meeting. Mr. Rodgers also authorized
an extension of time to February 19, 2004.
BILL-PAT, INC. –Memorializing Resolution 03-26
Mr. Falcon stated that this resolution memorializes
the approval the Board granted at the last meeting for the applicant to locate
construction trailers on the property at 75 Old Mill Road subject to the
conditions they be removed prior to the issuance of a certificate of occupancy.
Mr. Mountain made a motion to approve Memorializing Resolution PB03-26;
Mr. Timpson seconded the motion, vote all aye.
FOLLOW UP TO BOARD OF ADJUSTMENT ANNUAL REPORT
Discussion
– Mr. Falcon
Due to time
constraints, Chairman Giordano stated that this discussion will be placed on the
agenda for the January 21, 2004, Regular Meeting.
Mayor
Pierson requested Mr. Falcon’s thoughts and comments regarding the legality
and practicality of a taxpayer in Mendham Township providing a conservation
easement on his property to a non-profit corporation versus the Township of
Mendham. After discussion, Mr.
Falcon stated that he will review the matter and provide his input to the
Planning Board.
Chairman Giordano acknowledged Mrs. Kinsel for her
commitment and services to the Township of Mendham Planning Board since 1999.
Given that three Board members are absent from the meeting this evening,
Chairman Giordano made a motion, with memorialization at a later time, to
formally acknowledge and gratefully thank Mrs. Kinsel for her insightfulness and
many hours of service to the Planning Board; Mayor Pierson seconded the motion, vote
all aye.
Mrs. Kinsel expressed her pleasure at having had the
opportunity to serve on the Board. Mayor
Pierson also thanked Mrs. Kinsel for her efforts and announced that Mrs. Sarah
Dean Link will replace Mrs. Kinsel on the Planning Board.
RESOLUTION PB-03-27
CLOSED SESSION
Mayor Pierson made a motion to adopt Resolution PB-03-27
Authorizing Closed Session; Mrs. Kinsel seconded the motion, vote all aye.
Upon motion duly made and seconded, the Planning Board
returned to open session at 10:31 p.m.
CORRESPONDENCE
Chairman Giordano referred to an e-mail from Russ Heiney,
Construction Official, dated December 15, 2003, requesting guidance regarding
fire tanks for municipal use. Mr.
Mountain said this question arose with the fire cistern that is being installed
at the St. John the Baptist site at the corner of Carriage Hill and Hunters Glen
to provide water service in areas that don’t have public water.
He had suggested that Mr. Heiney bring this matter to the Planning
Board’s attention to see if they want to hear this type of application, which
is similar to the trailer application heard last month.
After discussion, the Planning Board agreed with
establishing a guideline that does not require Planning Board approval for
installation of a municipal fire tank, and if there are any particular problems
or situation that may arise, the Planning Board will revisit the matter.
Chairman Giordano asked the Board Secretary to prepare a memo for Mr.
Heiney advising them of their findings.
ADJOURN
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 10:35 p.m.
Respectfully submitted,
Hope Warrington, Secretary
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