MINUTES

MENDHAM TOWNSHIP PLANNING BOARD

WORKSHOP MEETING

FEBRUARY 2, 2004

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

ROLL CALL:

Present:  Chairman Giordano, Mr. Tolley, Mayor Pierson, Mr. D’Emidio, Mr. Majorossy, Mrs. Link, Mr. Mountain and Mr. Timpson

Also Present:  Mr. Falcon, Attorney; Mr. Kimball, Planner; and Mr. Aubin, Environmentalist

Absent:  Mr. Balut, Engineer

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 .

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 – None

BANKO

Chairman Giordano introduced the resolution prepared by Mr. Falcon, and Mr. Falcon stated that this is not a “memorializing” resolution but that he had only been authorized to prepare a draft resolution for consideration by the consultants and Planning Board members.  He said he had received additional comments from the applicant’s counsel and suggested that Mr. Rodgers address the Board directly regarding his comments.

Mr. Rodgers introduced himself as attorney for Mr. and Mrs. James Banko and noted that he had made a few minor, technical comments that he believed Mr. Falcon agreed with and had been incorporated.  He further said the resolution was fine with the applicant but would like to ask the Board to consider one minor alteration to the resolution.  Chairman Giordano questioned whether Mr. Rodgers’ request for alterations to the resolution was in addition to the changes he was aware of – 1) delineations on the plat which are different than originally discussed with respect to the slope areas, and 2) a notation on the plan that indicates the changes memorialize the actions taken by the Planning Board at the last meeting, which is incorrect.  Mr. Rodgers stated he is confused but explained that what he is saying is there is one provision in the conservation easement form as attached to the ordinance that says the Township may come onto the property to inspect, maintain and protect the easement area.  He said Mr. Banko has asked if the Board would consider keeping the right to enter his property to inspect but not insisting upon the right to come on his property to maintain the easement area.  Mr. Rodgers said this is specifically the only change the applicant is looking for with respect to what was decided at the last meeting.  He said the purpose of this request is because the owners feel that this would be an invasion of their ownership rights.

Chairman Giordano questioned Mr. Mountain about the areas in which the Township has sought to enforce a provision of this nature is in a situation where invasive trees are involved and threatening adjoining properties and requires some action to be taken.  Mr. Mountain stated that this type of situation has not arisen in his seven-year tenure but presumed that the intent is to protect the property or surrounding properties from anything invasive or threatening. 

Chairman Giordano questioned whether it was within the purview of the Planning Board to affect and modify a Township ordinance, and Mr. Rodgers stated that the ordinance itself does authorize the Planning Board to make modifications as appropriate. 

Mr. Aubin stated that he believed the language should be maintained as it is, and there are untold reasons why the Township would want to have the ability to maintain the conservation easement.  He said there could be problems with invasive species, insects, etc., and if a property owner refuses to take care of a problem, the Township should have the right to address the problem so as not to affect the rest of the Township. 

Chairman Giordano said that he understood that Mr. Fantina wanted to explain changes made to the plans with respect to the greater than 25 percent slopes area.  Mr. Fantina stated that is not correct and that the slope delineation has not changed.  He said this was changed in November and the surveyor went out to delineate areas that were actually less than 25 percent.  Mr. Fantina said they added two conservation easements, at the direction of the Planning Board – one easement that is very simply and 150 feet off of Burnett Brook and the other is the steep slope easement area.   He said that Mr. Balut had alluded to some areas that are above the line that are greater than 25 percent, the delineations have not changed, but they have not included every square inch of 25 percent slopes.  Mr. Fantina said he had tried drawing several lines, but as a compromise in order to do what the Township needed and Mr. Banko needed, he drew a straight line, which is easy to describe, keeps the lesser slopes areas outside, but does exclude some areas of steep slopes from the conservation easement.  Chairman Giordano asked Mr. Fantina if, in his professional opinion, this was the most effective way to draw the easement.  Mr. Fantina said there are different ways to draw the line, and you can get five different engineering opinions, but it seemed like the reasonable approach to them.

Chairman Giordano noted for the record, that he wanted no misconceptions about the revision date of 1.22.04 which indicates “per Township approval vote”  -- this was only a direction to prepare the resolution and any vote taken will be done at this evening’s meeting. 

Mr. Tolley raised the issue of the roadway and the way it has been revised, and noted that it appears to have shifted a lot closer to the adjoining lot 3 than to lot 2, which means that there is a measurable extra burden on the party that is not sharing the benefits of the subdivision but would be faced with more of the road.  Mr. Tolley asked why it couldn’t be located closer to lot 2, and Mr. Fantina stated that it had to move one way or the other to put the passing lane on the right hand side.  He further stated they have no objection, if the Board feels it is appropriate, to move the bulk of the driveway closer to Mr. Banko’s house.  Mr. Tolley said that it would be the neighborly thing to do.  Mr. Rodgers stated they have no objections to this, but for the record, Mr. Banko has shown the plans to the neighbor and walked the property and the neighbor had indicated no problems with it. 

Chairman Giordano then asked Mr. Falcon to review the resolution, and Mr. Falcon reviewed the entire resolution, and specifically reviewed four modifications that were made to the resolution

today.  Chairman Giordano asked if the members of the Planning Board had any questions for Mr. Falcon, and as a result, Mr. Falcon made appropriate changes to the resolution to reflect the concerns and clarifications raised by members of the Planning Board.  Chairman Giordano restated the two issues that had been raised:

1)       The engineer for the applicant has drawn a straight line to delineate the conservation easement, and while effective, it does not encompass all 25 percent slopes. 

2)       The applicant’s counsel has raised the issue of the way the Township’s Appendix F is worded and whether or not the Township should retain the ability to go in and do what is necessary to enforce/preserve the conservation easement.  Mr. Rodgers is arguing that this should be deleted at his applicant’s request, and Mr. Mountain stated that problems with this have not arisen during his tenure, and Mr. Aubin stated that this conservation easement should not be amended. 

Mr. Timpson noted that (a) and (b) under Item 3 on page 10 should be (i) and (ii).

Mr. D’Emidio made a motion to approve Resolution PB-04-04 as amended; Mrs. Link seconded the motion, vote all aye, with Mayor Pierson ineligible to vote.

LOT SIZE AVERAGING/CONSERVATION EASEMENTS

Mr. Falcon led this discussion, which arose from a question raised recently by a property owner who wanted to grant a conservation easement to the Upper Raritan Watershed or a similar organization. Mr. Falcon reviewed this matter to see if the Township was to modify the ordinance to provide for granting a conservation easement to such an organization -- what would happen if the organization were to go out of business for some reason.  He referred to his memo of January 15, 2004, that sets forth the provisions that he believes would cover this in the ordinance and provides that if the organization were to go out of business, the easement rights would be assigned to the Township of Mendham.   He further said that to ensure this would happen, the Township Attorney would be authorized in the first document as the attorney in fact to execute such a document if a representative of the organization could not be found.  Mr. Falcon said he reviewed this with Mr. Clapp, and subject to some refinements he may want to make, he is agreeable with this concept.

Mr. Falcon disclosed that he does occasional legal work for the Upper Raritan Watershed Association, and he has looked at this situation for them too and this is the same kind of language they employ in their conservation agreements.

Mayor Pierson said he believed Mr. Falcon has come up with a good alternative that solves the problem with this type of entity.  He asked Mr. Falcon if it was possible to insert after the word open space on the third line – something to the effect of  “falls into inactivity or cannot or does not actively manage open space.”   He also suggested that he would feel more comfortable if the following were added – “a New Jersey chartered, not for profit” organization.   Mr. Falcon said that in (b), it could be made subject to the fact that it is to be of good standing in Morris County and add chartered in New Jersey .

A brief discussion ensued, and Mr. Falcon stated that he would make the appropriate revisions and forward it to Mr. Clapp and the Township Committee for further action.

BOARD OF ADJUSTMENT ANNUAL REPORT

Mr. Falcon referred to an item in the Board of Adjustment Annual Report that questioned why appeals from determination of the Township Engineer on a lot development permit do not go to the Board of Adjustment (where perhaps they had heard the case initially), but rather to the Planning Board as required by the ordinance.  The Board of Adjustment believes that to have such appeals go to the Board that had originally considered the matter would avoid the ping-ponging effect that the amendments to the MLUL were designed to avoid.  Mr. Falcon said he researched this issue to see what the authority is for the provision and to see if it could be procedurally modified, if desirable.  He said the Planning Board and the Board of Adjustment could only do the things that the MLUL says that they are entitled to do.  Mr. Falcon stated that the Planning Board has a couple of unusual powers under sections 25 and 26 – any matter or class of matters can be referred to the Planning Board by the governing body and the Planning Board has advisory duties so that the governing body can refer a matter to the Planning Board of any nature for advice.  The Board of Adjustment has no similar power and their powers are strictly delineated.  Mr. Falcon said that the proper procedures is that appeals from decisions of the Township Engineer on a lot development permit goes to the governing body and the governing body would then refer the matter to the Planning Board before taking action. 

A brief discussion ensued, and Chairman Giordano asked Mr. Falcon to draft a memo to be sent to Mr. Clapp so that he may forward it to the Township Committee for discussion. 

REQUEST FOR VACATION OF INDIAN HOLLOW ROAD

RIGHT OF WAY EASEMENT

Chairman Giordano reminded the Board that testimony was provided on this matter at the January 21, 2004, Regular Meeting, and based upon Mr. Tolley’s recommendation, it was referred to Mr. Betz for his review and feedback.  He then referred to Mr. Betz’ memo dated January 30, 2004, and a brief discussion ensued.  Mayor Pierson said that since Mr. Betz did not seem to have a problem with this for Mendham Township, he did not feel it was necessary to contact the state forest service.  He recommended moving forward since Mr. Betz has answered Mr. Tolley’s initial concern.  Mr. Tolley stated that he thought the most logical body to use this right of way would be the state forest service and did not see a problem with waiting 30 days for their response.  Mayor Pierson said that the right of way was granted at the time the property was being developed and noted it has been the policy of the Planning Board to request easements that often disappear once an area has been developed, such as Pine Hollow. 

Mayor Pierson made a motion to respond to the governing body that the Planning Board has reviewed the situation and has no objection to the vacation of the Indian Hollow easement; Mr. Majorossy seconded the motion.

Roll Call Vote – Giordano, Pierson, D’Emidio, Majorossy, Link, Mountain, Timpson – aye;

Tolley – nay

Chairman Giordano asked the Board Secretary to prepare a memo outlining the Planning Board’s recommendation to the Township Committee.

CLOSED SESSION

Resolution PB-04-03

Mr. D’Emidio made a motion to adopt Resolution PB-04-03 Authorizing Closed Session; Mr. Majorossy seconded the motion, vote all aye.

Upon motion duly made and seconded, the Committee returned to open session at 8:59 p.m.

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 9:00 p.m.

Respectfully submitted,

Hope Warrington

Planning Board Secretary