MINUTES OF THE TOWNSHIP OF MENDHAM PLANNING BOARD

REGULAR MEETING HELD OCTOBER 17, 2007

Vice Chairman Tolley called the meeting to order at 7:36 p.m. and asked for roll call.  Upon roll call: 

ROLL CALL 

PRESENT:                  Mr. Tolley, Mr. Krieg, Mr. Pierson, Mrs. Link, Mr. Mountain, Mr. Johnson, Mayor Florek, Mr. D’Emidio, Chairman Giordano (arrived 7:41 pm)

ABSENT:                     None

Others present:           Tom Lemanowicz, P.E., John Aubin, Environmentalist, Ed Buzak, Esq., Duggan Kimball, P.P.

Vice Chairman Tolley led the flag salute and announced that adequate notice of the meeting had been given. 

MINUTES

Motion to accept the minutes of the September 4, 2007 Workshop Meeting was made by Mr. Pierson, seconded by Mrs. Link.  All eligible to vote agreed.  

Motion carried.  

RESOLUTION

PB-07-09– SIMAVA (CANNAVO); 90-Day Extension to File Subdivision Deed

Minor Subdivision (Block 130, Lot 6)        

Mr. Buzak began by saying that the Planning Board granted a minor subdivision approval in 2006 with a period to perfect the approval.  The application had a number of conditions that needed to be satisfied, and the deadline could not be met.  The applicant sought an extension, and the Board at that time granted an extension to perfect the subdivision with a deadline of September 12, 2007.  While very close to satisfying the conditions, the applicant is presently seeking an additional extension.  They are asking the Board to grant the further extension.

Vincent Bisgono, attorney for Simava, LLC, said that the applicant has satisfied the DEP and have answered all of Mr. Lemanowicz’s questions with all the documents filed with the Township.  He asked the Board to grant one further extension that will allow them to file the maps.

Motion to grant the extension was made by Mr. Mountain, seconded by Mr. Krieg.

AYES:              Mr. Krieg, Mr. Mountain, Mr. Tolley, Mayor Florek, Mr. Pierson, Mrs. Link,

                        Mr. Johnson, Mr. D’Emidio

NAYES:           None

Motion carried.

Chairman Giordano arrived at 7:41 pm and continued to conduct the meeting.

APPLICATION

#PB-07-04 –BARER ESTATES (Shemy, LLC)

Preliminary Major Subdivision

Block 116, Lot 15                                            Deadline for Decision:  12/20/07

                                                                        Escrow #:  010038-8

Mr. Glen Geiger made his appearance as attorney for Barer Estates LLC and began the discussion by stating that the application supports a conventional major subdivision (approximately 38 acres) creating 3 lots and carving out 2 new conforming 10 plus acre lots.  It was presented at the September 25, 2007 TRC meeting where an issue came up for consideration by the Board’s Counselor or Planner.  The issue presented had to do with the interpretation of the Land Use Ordinance in finding jurisdiction over granting conditional uses for accessory structures.  The existing property has a number of accessory structures, and the area of those structures would exceed those permitted in the Land Use Ordinance if the applicant were to propose to construct them as accessory structures with the existing residential structures on a lot today.  The question that arises is if any of the accessory structures necessitates a bulk variance or potentially a conditional use variance?   Based upon the ordinance, accessory structures are permitted through the conditional use process.  Mr. Geiger argued that this is an interesting technical issue on its own since farms are permitted uses in the zone, and a farm by its very nature requires a number of accessory structures.  Mr. Geiger continued to say that the issue of jurisdiction needs to be sorted out and resolved at this evening’s Board meeting because the Board has to either deem the application complete and schedule same for consideration of a subdivision with bulk variances or refer the entire subdivision to the Board of Adjustment to be considered under a conditional use variance. 

The Board’s Counselor and Planner have had much discussion over this specific section of the ordinance, and the Board’s concerns in controlling the construction of new accessory structures may not have been anticipated in the situation where a number of existing farm structures are on a lot which are deemed to be accessory structures.  In this application the applicant wishes to maintain the existing farm (accessory) structures since they portray a rural appearance to the subdivision.  Mr. Geiger went on to say that this subdivision reaffirms the zoning that was put in place (e.g., the 10 acre zoning).  The question is how the limitation on accessory structures, where they are pre-existing, should be treated.  Is the relief from that provision a bulk variance (within the purview of the Planning Board) or conditional use variance (under the jurisdiction of the Board of Adjustment)?  It’s a very odd situation since farm structures are permitted uses, but once the property is subdivided and utilized for residential purposes (versus farming), the structures that are a permitted use on a farm converts a structure that is part of a principal permitted use into a conditional use.

Mr. Buzak began his discussion by saying that Mr. Geiger had accurately set forth the issue before the Board.  He opened by describing the Land Use Ordinance provision which states that accessory structures are permitted but with limitation.  The limitation is that no accessory building shall exceed 2000 square feet of footprint by itself or the footprints of all accessory buildings aggregated together, unless approved in accordance with the conditional use act.  The conditional use section reiterates the initial limitation whereby accessory buildings, which either individually or aggregated exceed 2000 square feet, shall only be permitted with certain regulations.  Mr. Buzak continued to read this part of the ordinance regulations.  He said that under this application because the one lot is being subdivided with accessory structures to a lot of 17 plus acres, the square footage of the accessory buildings far exceeds what is allowed under that amount of acreage.  Due to that condition, a variance from that conditional use requirement would have to be obtained.  If the requirement is a conditional use requirement as opposed to a bulk standard, the Planning Board does not have jurisdiction to grant that variance.  The variance must be granted by the Board of Adjustment.  Mr. Buzak continued to say that he and Mr. Kimball discussed this at some length and concluded that the ordinance is actually a clever way to address this kind of issue in situations where there is a vacant land.  The purpose of this was to recognize that accessory buildings should be allowed but limitations are needed on the size of accessory buildings as the lot sizes increase.  It seems the purpose of this conditional use provision was to try and regulate people adding in a residential zone a number of large accessory structures. If greater accessory buildings are needed, which would exceed the limitations put forth by the ordinance, then a bulk variance is not sufficient, and the applicant must go to the Board of Adjustment to obtain a use variance.  It was written into the conditional use section in the ordinance to do this so mechanically it works well.  This accomplished the probable objective that was thought of by the drafters.  In this particular case, however, there are already preexisting accessory structures, and this issue was not addressed when the ordinance was put into place.  In this case it is conforming with 38 acres, but subdividing into three lots brings it to below ordinance.

Mr. Buzak continued to say that unfortunately he cannot interpret this section that would allow this Board to have jurisdiction.

Mr. Geiger continued to say that he wished the Board would accept Mr. Buzak’s recommendation with the determination that the Board does not have jurisdiction and that referral to the Board of Adjustment be immediate because of time constraints in order to get on the Board of Adjustment’s agenda for the next meeting on November 8, 2007.

There was a discussion regarding the “Right to Farm” Act and if this would help in getting around the provision in the Land Use Ordinance.  Mr. Buzak did not think it would in terms of this particular issue since barns and sheds are still considered accessory uses and brings it back to the same issue of trying to meet the criteria.

Chairman Giordano stated that his understanding from Mr. Buzak is that this is a conditional use, which must go before the Board of Adjustment and asked Mr. Geiger if he would be reluctant to go to the Board of Adjustment because of the conditional use provision.

Mr. Geiger stated that he did not have any reluctance with that decision and would prefer to get on with the application.  He went on to say that if it did go to the Board of Adjustment and if he needed to challenge their interpretation, and they upheld it and said it is not a conditional use variance but a permitted use in a bulk variance, then it would come back to the Planning Board.  If they agreed to the conditional use variance, then the Board of Adjustment has jurisdiction, and it will all stay there.  The Planning Board will have zero jurisdiction.

Mr. Buzak recommended that a motion be made to refer the application to the Board of Adjustment.

Motion to refer the application to the Board of Adjustment was made by Mr. Tolley and seconded by Mr. Pierson.

AYES:              Mr. Pierson, Mr. Tolley, Mayor Florek, Mr. Krieg, Mrs. Link, Mr. Mountain,

                        Mr. Johnson, Chairman Giordano

NAYES:           None

Motion carried.

APPLICATION:

#PB-07-03 – GREENVIEW ESTATES (Michael Martirano)

Final Subdivision Approval

Block 123, Lots 24, 25, 33, 34, & 36                                       Deadline for Decision:  10/17/07

Block B1 227, Lot 72                                                               Escrow #:  010005-7

Mr. John Wyciskala, attorney for Green View Estates, stated that this is an application to finalize subdivision approval for Green View Estates subdivision.  His clients are Michael and Vita Martirano.  They reside at 4 Tanager Lane and are proposing an extension of Tanager Lane up into a parcel of property approximately 25 acres in size.  Exhibit A1 is a final map of Green View Estates dated July 23, 2007 and prepared by Yannacone Villa & Aldrich.  This is a final map so no notice to the public was required on the subdivision. 

In October, 2006 the Board granted conditional preliminary major subdivision approval for this application which will create an extension and new cul-de-sac to Tanager Lane and three new building lots in the R-3 single-family zone - lot 25.03 which is 3.3 acre lot, lot 25.02, also 3.3 acres and then lot 25.01, the end lot which is 10 ½ acres in size.  Attached to that is property in Randolph, Block 227, Lot 72, approximately a 3.8 acre parcel.  There is significant amount of property that is encumbered with a conservation easement which goes throughout the area.  He went on to say that they were faced with two options in terms of this project.  The first option was to continue with surface site improvements under the preliminary approval (i.e. establishing bonds, bringing in a roadway etc.) and perfecting a final subdivision at a later time. The second option was to bring to the Board their final plans with performance requirements and seek Board approval to satisfy all conditions.  The Martirano’s chose to secure all the local approvals in advance and then when the final is approved, complete all the remaining items.

Mr. Wyciskala updated the Board on the situation regarding the Randolph portion of the subdivision.  When the project was originally proposed, the Randolph parcel was left alone because it did not really add anything to the lots.  It was not developable.  If the Randolph parcel were subdivided, the project would find itself in two municipalities with major subdivision approval.  As a result, the Randolph portion was put into a conservation easement and is now off limits to any further development.  He went on to say that there is a hydrant that comes up Tanager Lane for firefighting purposes, and the water source is Randolph .  Mendham has a local agreement with Randolph that Randolph would provide water for fire fighting purposes.  After a friendly discussion with Randolph on whether a permit or application was required, Randolph said that the applicant needed to appear before the Randolph Planning Board for subdivision approval.  After much discussion with them and explaining that the property would not be subdivided and only used as a conservation easement by virtue of the approval, it was decided that the path of least resistance would be to appear before the Randolph Planning Board.  Their general sentiment was that minor subdivision approval should be sought.  The application was submitted to their subdivision committee for minor subdivision approval.

Mr. Craig Villa of Yanconne and Villa was sworn in along with the Professionals in order to clarify Chairman Giordano’s questions regarding the conservation easement lines on the drawings.  He went on to say that the entire Randolph lot plus a large portion of the larger Mendham Township lot) is restricted by the conservation easements.

Mr. Kimball indicated to Mr. Wyciskala that preliminary approval, which was granted, was conditional. There are a whole series of conditions and that before final can be granted the conditions of the preliminary must be satisfied.

Mr. Wyciskala said he was not suggesting that they leave with the final plat. Any of the conditions that are attached to the preliminary will be addressed to the Board for completion purposes.

Mr. Wyciskala began his review of the preliminary conditions outlined in Mr. Kimball’s report dated September 11, 2007 that Mr. Kimball indicates in his report have not been met and would have to be fully covered by guarantees as required by the LUO if they are still not met.  Mr. Kimball at this point wished to clarify to Mr. Wyciskala that there is one unusual aspect of the Mendham Township ordinance, which is that the Planning Board retains its jurisdiction over the final review of the Developer’s Agreement (Item #1 addressed in his report).   Before the Board can grant final approval, documentation must be submitted to the Township Committee and Attorney for approval so the Planning Board will have a complete document for final approval.  There was much discussion regarding this unusual part of the ordinance.

Mr. Mountain said that what is different here is that typically the public improvements step as part of the preliminary are done first so the Developer’s Agreement would already be established.  This application is attempting to do this in all one-step which is why there is a sequence issue. 

Chairman Giordano clarified that it is called a preliminary approval Developer’s Agreement.  The intent of the ordinance is to build under the preliminary without going for a final plat in establishing the lot.  It was intended to assure that a preliminary approval Developer’s Agreement was established. Here final approval is being sought in conjunction  with the Developer’s Agreement.  The Developer’s Agreement is needed before the final map can be signed and the lot created.  This is similar to how the Irene development was handled. 

Mr. Buzak stated that the practical resolution is that if the developer is going to be doing improvements in the preliminary work before he gets final, the municipality wants to make sure that there is some agreement put in place that deals with that.  If the developer does not build on the improvements on the preliminary and wants to come in without having turned over a list of the improvements, he is permitted to do so but must post bonds and guarantee that all the improvements will be completed.  That would be done in this phase in conjunction with the Developer’s Agreement which would indicate that bonds be posted in case the developer defaults.  The bonds would then be used to undertake the improvements since there is already final approval.

Mr. Buzak suggested that the Board go through the conditions that have been satisfied and those that have not been satisfied would be the conditions of this final approval.

Chairman Giordano stated from what he understood from Mr. Buzak’s and Mr. Kimball’s discussion, the concept with respect to the Developer’s Agreement is that there will be one prior to final signoff, but it will not be an impediment for continuing tonight.  This is a condition of the approval (3a in Mr. Kimball’s report)

The discussion continued with the review of the conditions of the preliminary as stated in Mr. Kimball’s report dated September 11, 2007 (Conditions 3b-q).  Mr. Wyciskala addressed each condition for completeness purposes.

Mr. Wyciskala stated that Mr. Lemanowicz’s report had some engineering issues but more minor details than major details which will be finalized before the final plat.

Motion to open to the public was duly made by Mr. Tolley and seconded.  Motion to close to the public was made by Mr. Pierson and seconded.  All agreed.

A motion was duly made by Mr. Tolley to direct the attorney to prepare a resolution for consideration at the next meeting for final subdivision approval.  Mrs. Link seconded the motion.

AYES:              Mrs. Link, Mr. Tolley, Mayor Florek, Mr. Krieg, Mr. Pierson, Mr. Mountain,

                        Mr. Johnson, Chairman Giordano

NAYES:           None

ABSTENTIONS:  None

DISCUSSION ITEMS

LDP Ordinance by Tom Lemanowicz:

Mr. Lemanowicz stated that regarding the LDP, the committee is answering major questions and trying to get through the idea of how certain needs within the Township would be met but at the same time remain reasonable to the residents on the effort.

B&B Land (non agenda item)

Mr. Pierson raised the question of B&B Land and the status of remediation as stated in

PB-07-08 at 311 Mendham Road West .  Mr. Aubin indicated that a plan has been received from Mr. Beck, owner of B&B Land, which did not address what the Board had outlined in the resolution.  Mr. Aubin indicated that a memo was sent to Mr. Lemanowicz that outlined the deficiencies in the plan.  Nothing has been done at this point.  Mr. Lemanowicz said he would prepare a letter to Mr. Heiney indicating that Mr. Beck’s responsiveness has been less than what was anticipated, and will recommend that Mr. Heiney send a letter indicating that the temporary certificate of occupancy will be revoked in 14 days if he does not respond to the terms of the resolution.

A motion was made by Mr. Tolley to open to the public and seconded.  All agreed.  A motion was made by Mr. Krieg to close to the public and seconded.  All agreed.

DEP Stream Encroachment Regulations (non agenda item)

Mr. Aubin brought up to the Board that the DEP is about to adopt stream encroachment regulations, which are extraordinarily onerous and will affect anything anyone does in Mendham Township within 300 feet of any streams.  He said he does not see how they can enforce it much less implement it; however, those are the regulations that are going to be adopted the first week of November.  He went on to say that the department has also proposed new regulations for freshwater wetlands permits which will include a requirement to conduct mitigation for certain general permits including road crossings and a number of things that the Township normally does in the course of upgrading and improving public interest.  He went on to say that this is very, very expensive ($300,000 an acre for mitigation), and he strongly urges the Planning Board and Township Committee to protest this. They are proposing to put the onus on the zoning and planning boards to make sure that the LOI is in place before they act.  Mr. Krieg asked Mr. Aubin if he has heard of any municipality that has written a letter or passed a resolution protesting this and if so, to please pass it along to the Township Committee for their next meeting Tuesday night in order to hold record at that meeting. Chairman Giordano suggested to Mr. Buzak that a quick note be sent to Mr. Falcon, the Mendham Township attorney, so he is sensitized to the fact that Mendham Township might be responding.  Mr. Aubin said that right now anything that has been previously approved is okay, and the town is moving on anything that is in the works.  Mr. Aubin continued to say that the stream encroachment regulations are going to be adopted, but does not know if they will be adopted with a grace period, and if there is a grace period, how long that would be.  If they are adopted with the grace period, presumably any stream encroachment permit application in progress will be completed before it becomes effective so the new regulation would not affect it.  Presumably that has been the way it has been done in the past, but most recent adoptions such as the storm water management regulations in particular had no grace periods.

Chairman Giordano asked the Board if there was any objection to cancelling the November 5, 2007 Workshop Board meeting.  There was no objection.

Mr. Buzak raised the issue that Schiff was supposed to be at the meeting this evening to report on the DOT Title 39.  Apparently a letter is in the works to the Township and is waiting for the DOT to respond.

Motion to adjourn the meeting was duly made by Mr. Tolley and seconded at 9:14 pm.

                                                                                    Respectfully submitted,

                                                                                    Beth Foley

                                                                                    Board Secretary