MINUTES

MENDHAM TOWNSHIP PLANNING BOARD

REGULAR MEETING

FEBRUARY 19, 2003

Mr. Giordano called the meeting of the Mendham Township Planning Board to order at 7:35 p.m.

ROLL CALL:

Present: Mr. Giordano, Mr. Tolley, Mr. D’Emidio, Mr. Majorossy, Mrs. Kinsel,

Mr. Mountain, Mr. Timpson

Absent: Mayor Pierson

Also Present: Mr. Falcon, Attorney; Mr. Kimball, Planner; Mr. Balut, Engineer; and

Mr. Aubin, Environmentalist

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 .

SAJ ASSOCIATES, LLC

Chairman Giordano announced that SAJ Associates, LLC, has requested an adjournment and will not be heard this evening. Chairman Giordano stated that this matter will be carried to the March 19, 2003 , Regular Meeting.

MINUTES FOR APPROVAL – None

MEMORIALIZING RESOLUTION PB 03-06

Mr. Falcon described this as a capital review under Section 31 of the Zoning Law, which provides the Planning Board with an opportunity to review and comment upon a capital project of the Township, which in this instance is the addition of the public works garage. This is a memorializing resolution to confirm the action taken and recommendations made by the Planning Board at its meeting on February 3, 2003 . The three recommendations are as follows: 1) trees and foliage be reviewed so as to provide for maximum coverage and screening; 2) lighting should be shielded or redirected to the maximum extent possible to avoid light spillage to area properties; and 3) the color of the garage should be reviewed so as to provide for compatibility with the natural surroundings.

Mr. Majorossy moved to adopt Memorializing Resolution PB 03-06; Mr. Tolley seconded the motion, vote all aye, with Messrs. D’Emidio and Mountain abstaining.

VON POELNITZ

Application 02-07

Mr. Barry Osmun introduced himself as counsel appearing on behalf of Michael and Audrey Von Poelnitz.

Mr. Falcon swore in the witnesses and experts.

Mr. Osmun described the application before the board as a backlands subdivision, Block 116, Lot 46, on the Township Tax Map, and located at 235 Mountainside Road . The property is proposed to be divided into two parts – the first part with the main existing dwelling and tennis courts on 8.14 acres and the second part as six acres -- thereby meeting the ordinance requirements in terms of lot area. This lot would contain an existing smaller dwelling, existing pool and a portion of the common driveway. The third parcel is a 1.24 acre, 50-foot wide private road right way of way containing the existing driveway in the cul-de-sac. A number of variances for existing structures are being sought. Mr. Osmun also stated that they are seeking a diminimus exception to the residential site improvement standards that require that improvements be made to the existing driveway. There is no proposal to make any improvements. The proposal would be to leave it in its existing state. Mr. Osmun then asked Mr. Ferriero to comment on the subdivision.

Chairman Giordano asked Mr. Osmun if the witness, Paul Ferriero, would be testifying as an expert in any capacity. Mr. Osmun stated that Mr. Ferriero would be testifying from both an engineering and zoning standpoint given he is a certified engineer and planner. Chairman Giordano requested that Mr. Ferriero provide a short voir dire in order to provide the public with the opportunity to present any questions pertaining to Mr. Ferriero’s qualifications. Mr. Ferriero stated he is employed by Ferriero Engineering and is a licensed professional engineer (since 1988), and is a professional planner (since 1989) in the state of New Jersey . He has provided testimony at numerous meetings of Adjustment Boards and Planning Boards. Since there were no questions from the Board or the public, Mr. Ferriero was qualified as an expert.

Referring to the major subdivision preliminary plat, Exhibit A1, Revision 2 dated11/25/02, Mr. Ferriero presented a description of the plan.

Mrs. Kinsel raised the issue of future development and improvements.

Mr. Majorossy inquired about the driveway width and the safety of emergency vehicles accessing this road.

Mr. Ferriero then moved on with a review of the report submitted by Mr. Balut.

Chairman Giordano asks for comments and questions from the Board and Mr. Balut.

Mr. Tolley raised the issue of reserved septic fields, and Mr. Ferriero indicated that testing had been done for reserved septic fields.

Mr. Balut states that there is an issue with the fire tank location, which he has discussed with Mr. Jeff Betz.

Ms. Osmun suggests the possibility of recording condition of improvements in a development agreement or some other type of memorializing agreement.

Discussion ensued regarding future development, location of the fire tank, road improvements and RSIS requirements.

Mr. Falcon clarified the discussion by stating that the Board’s inclination is that, at the end of these proceedings, the plans will indicate where the fire tank will be installed, the road details, and improvement details. He further stated that it would only be left to a later date when the actual development of the lots would occur and the requirements and timing for the improvements. These proceedings will determine where they are and what they look like.

Mr. Osmun states that private road maintenance will be shared and he will provide documentation stating such.

Mr. Osmun refers to the environmental report from Mr. Aubin and refers to Mr. Aubin’s report relating to the conservation easement. Mr. Osmun states that the objective here is to create a good, healthy forestry management plan, and the provisions stated in the Goodenough Associates plan are really the best management plan to achieve this.

Mr. Falcon affirmed that this plan has been prepared by a forestry consultant, and advises that there has been a lot of discussion about conservation easements recently between the Environmental Commission and the Township Committee. Mr. Falcon states that the issue around the removal of the dead limbs and diseased trees is one that runs contrary to the purpose of a conservation easement, and indicates that the Board’s concern is if this forest management plan, developed by the owners with this consultant, provided for the removal of live trees, then there would be little purpose in obtaining a conservation easement from the property owner if it was subject to a plan that allows removal of live trees. Mr. Falcon further states that based on the testimony heard this evening, this is not contemplated, but rather the removal of dead and diseased trees, which is in fact the same kind of condition included in the Bradbury subdivision that allows them to remove dead trees.

Chairman Giordano confirmed with Mr. Aubin that he did receive a copy of the Goodenough report in August 2001, and Mr. Aubin stated that he sees no foresting conflict in the plan.

Mrs. Kinsel recalls from her experience as a member of the Environmental Commission that the Morris County Soil Conservation specifically said not to remove any kind of dead, dying diseases trees – that it is a steep slope issue. Mrs. Kinsel advises caution around equipment and tree removal on steep slopes that run down to one of our natural areas.

Mr. Von Poelnitz replied that the cost of renting the machinery to do that would costs thousands of dollars, and further states that any removal of trees on his property is done by manpower or a chain saw.

Mrs. Kinsel notes that she understands Mr. Von Poelnitz’ current practices, but is concerned about future owners of the lot.

Mr. Tolley suggests that specific observance of the current forestry management be done during the site visit.

Mr. Osmun suggests that this may be recorded in the conservation easement that dead and diseased trees can only be removed by hand. This document is recorded and the Township Committee has the right to inspect that, and if the owner is not in compliance, the Township can challenge it.

Chairman Giordano mentions that Mr. Rhodes from the Environmental Commission is present, and asks Mr. Rhodes his views regarding the reasonability of the applicant’s offer to basically scuttle the forest management plan and record in an easement that would permit the removal of dead and decayed trees via manpower and chainsaw only.

Mr. Rhodes responded that the Environmental Commission has made numerous statements about preserving the hillside and avoiding erosion and/or disruption of the landscape that could be caused by any sort of serious forestry activity. He further advises that their discussions have focused on having a formal conservation easement established that would permit the removal of dead trees. Mr. Rhodes states that what has been proposed seems to be consistent with the efforts of the Environmental Commission.

For sake of the record, the area that the witness was shown was the 300 feet from the apex of the stream.

Mr. D’Emidio assumes that the easement for the water main repairs and maintenance will supersede this conservation easement, and Mr. Falcon confirms this.

Mr. Ferriero indicates the location of the two easements on the map, and Mr. Falcon confirms with Mr. Ferriero that these will be plotted on the map.

Mr. Ferriero reviews the report and comments submitted by Mr. Kimball dated January 2, 2003 . As previously stated, the proposed subdivision meets both requirements of the backlands subdivisions. One item where some relief is required is where it relates to the improvements of the access driveway or private road serving both lots. This, under the Residential Site Improvement Standards, will have to be granted in terms of a diminimus waiver. Mr. Ferriero explained that there are really three houses, two on the subject property, that are served by an existing private driveway and the proposal is really to turn a private driveway into a private road. This level of improvement is consistent given the nature of the Mountainside Road area.

Mr. Mountain inquired as to the need for additional drainage improvements if future improvements to the access way are made.

Upon motion duly made and seconded, the meeting was opened to the public with respect to questions for the expert and/or applicant with respect to the testimony.

Mrs. Guinivere Martin, 239 Mountainside Road , expressed concern about the fire issue and the location of the fire tank and whether there is a diminishment of water and would like it addressed. Mrs. Martin believes that the location and the amount of water available needs to be addressed now.

Mr. Ferriero replied that the fire tank would be located within the first 50 feet of Mountainside Road , along the side of the driveway.

Upon motion duly made and seconded, the meeting was closed to the public.

Chairman Giordano referred to the consultants for their respective comments on the reports, and further discussion ensued regarding lot lines, a straight driveway versus a circuitous driveway, RSIS waivers, and adequate access for health and safety matters.

Upon motion duly made and seconded, the meeting was opened to the public.

Mr. Jim Devine identified himself as residing on Lot 30, directly behind Mr. Poelnitz’ house. Mr. Devine states that there is a tennis court on Mr. Poelnitz’ property that has an improper setback. He advises that the tennis court was already there when both he and Mr. Poelnitz purchased their homes. Mr. Devine has researched this and found that a building permit for the tennis court was never issued.

Mr. Kevin Slotten, residing on Lot 31, questions the permissible size of a dwelling on the lot, as well as its location, on Lot 3601.

Ms. Guinivere Martin states that she does have a right-of-way to the subject property’s driveway.

Mr. Osmun reviews a 1949 conveyance document, and Mr. Poelnitz explained the history of Mr. Horowitz’ agreement (the previous owner) with Mrs. Martin for providing access for animals. Mr. Poelnitz further states that there is another agreement from 1910 regarding this matter.

Mr. Ferriero suggests that further research will need to be done and counsel will have title search done.

Two residents advised that Mr. Poelnitz had erected a deer fence on their property, and it was suggested that these residents seek appropriate counsel.

Upon motion duly made and seconded, the meeting was closed to the public.

Mr. Majorossy disclosed to the Board, for the record, that approximately 14 years ago, he was the purchaser under contract of Lot 47 from Mrs. Martin. Mr. Majorossy was also involved in litigation with Mr. Horowitz at this time. Mr. Majorossy won a lengthy legal battle with Mr. Horowitz, developed the lot, built the house and subsequently sold it.

Mr. Falcon advised that this does not bear on this application.

Chairman Giordano summarized by: carrying this matter to the agenda for March 19, 2003; authorized an extension through April 17, 2003, to be prepared by Ms. Smith and signed by counsel; the need for location of a fire tank location on the plat -- to be pursued by both Mr. Betz and Mr. Balut; the form of conservation easement to be shown on the plat and any documentation showing conservation easement restrictions to be shared with the Environmental Commission for review. Mr. Osmun will further research the access to the road, as well as the location of the tennis court. Chairman Giordano further summarized: the need to review the historic character of the subject property; the Board’s inclination to move forward with the straight line concept; the need to indicate exact septic locations on the plan, and confirm if additional drainage will be needed.

ORDINANCE 2-2003

Chairman Giordano opened the discussion regarding Ordinance 2-2003.

Mr. D’Emidio explains this Ordinance regarding the height of gates and gateposts, and the Township Committee’s request for a review by the Planning Board. Discussion ensued around the serious issues involved, particularly emergency vehicle access.

Mr. D’Emido suggests delaying this discussion to the March 3, 2003 , Workshop Meeting so that the Board can further research the restriction of the post and pillar height.

Chairman Giordano confirms that he will prepare a letter to the Township Committee stating the Planning Board’s desire to further review the draft ordinance and the height ordinance regarding portcullises.

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