MINUTES OF THE TOWNSHIP OF MENDHAM PLANNING BOARD

REGULAR MEETING HELD MAY 16, 2007

Vice Chairman Tolley called the meeting to order at 7:30 p.m. and asked for roll call.  Upon roll call: 

ROLL CALL 

PRESENT:                  Mr. Krieg, Mr. Pierson, Mrs. Link, Mr. Mountain, Mr. D’Emidio, Mr. Johnson, Vice Chairman Tolley, Mayor Florek

ABSENT:                     Chairman Giordano

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

In the Chairman’s absence, 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 January 17, 2007, Regular Meeting made by Mr. Krieg, seconded by Mr. Pierson, all eligible to vote agreed.  Motion carried. 

APPLICATIONS

PB-07-01; Waiver of Land Disturbance Permit Block 108, Lot 26 311 Mendham Road West /B&B Land, LLC Property

Mr. Phillip Guidone was the attorney who represented the applicant B&B Land.  He called two witnesses, Mr. William Beck Jr., one of the principals of B&B Land and Carlton Frost of Associated Consultants Engineers and Land Surveyors, Inc. in connection with the application.

At the inquiry of Mr. Guidone, Mr. Beck stated he purchased the house in December of 2005 and that the house existed at that time along with the brick wall, steps and patio.  He reviewed the status of any permits, questions, or problems with the project at that time and saw no problems.

A photograph marked as Exhibit A1 was presented.  This was taken around the time when he purchased the property by the realtor.  Mr. Beck said that the walls and patio area were constructed a couple of years before he bought the property.  He sees this as the largest issue – also the slope disturbance behind the wall was increased.  He planted ground cover on the embankment for beautification and stabilization along with wood mulch in April 2006.  Discussion between Mr. Guidone and Mr. Beck ensued as to how Mr. Beck would handle the removal of the steps and patio area if need be.  Mr. Beck would come up the right hand side, the least slope, build a little pathway across and behind the wall and do the removal this way.  The septic is also located on the right side on the hill so there was already more disturbance created on the right side.  He said he would not come up the left side of the house since the slope is steeper there, and that side is in more of a natural state.  Also, there would be no room to come up on the left side.  After removing, he would bring filler and top soil in to set it back in place and re-vegetate.  In his opinion this would create more of disturbance (since it is stable now) in order to remedy the problem and the wall would be at a risk with machinery so close to it while on the pathway. Mr. Guidone said that it was suggested that consideration be given to a conservation easement in this area.   

Discussion continued between Mr. Guidone and Mr. Beck as to when he became aware that there was an issue with the municipality as to the construction of the wall and patio,   Mr. Beck completed by May, 2006 the final landscaping touches to the property and called for a CO final inspection for the property for July, 2006 at which time Mr. Lemanowicz sent a letter stating that it looked substantially different than the original plan.  Mr. Beck stated that when he did his due diligence on the property and had seen the original plan from Associated Consultants for the wall, which did not have the stairs on it, he approached the seller who said he had added it as a field change and that it was inspected and it was fine.  Mr. Beck did look through the town and building files for any contradictions and found none.  He assumed there were no problems since there were no notices in the file, and it was okay.  He said that field modifications are not uncommon and that different towns have different processes for this.

Mr. Beck received no documentation from the seller supporting these changes after asking for it.  The seller was not helpful and claimed he had no problem with the changes.  Mr. Beck feels that the current condition of the property is very stable now and that it looks quite good.  He acknowledged that the stairs was a disturbance not on the plan; however, to remediate, other disturbances associated with that would be to disturb more in order to fix the disturbance.

Mr. Beck stated he did not contribute to the disturbance but tried to correct it and finish it off in a reasonable manner by planting evergreens.

Mr. Mountain raised the question if there are any storm water issues that are exacerbated by the condition of the hillside.  Mr. Beck stated that the basement flooded a few weeks ago but   didn’t think it was associated with the wall but the basement level drain at the base of the stairwell to the basement.  The pipe goes into the ground and doesn’t connect to the drainage system to the property.  A daylight footing drain would remedy this in his opinion.  He felt that it was ground surge since the ground had been overly saturated from the recent rainfall and that any storm water runoff does not seem to create any problem anywhere.

Mr. Krieg pointed out that he noticed at one point while stopping by the property that a significant amount of storm water runoff was coming out of the embankment on the right hand side of the driveway, 20 feet back from the road pouring down the driveway.  This continued for about a week.  Mr. Beck responded that indeed he had two 2” pumps running (from the fire department) for about 6 days until the water stopped purging out of the stairwell.  He also further explained in depth how he would correct the current drainage problem.

Mrs. Link continued to express concerns regarding the effect the steps and patio have on the storm water that is coming down off the hill.  It seems that the impervious surface is acting as a conduit and is draining water down into the patio area. Mr. Beck explained his reasons why he believed the storm water was not coming down off the hillside but ground surge water pushing out.  An overflow gravity pipe placed down very low (a foot below the floor level now) would correct this.

Mr. Lemanowicz indicated that the site is as Mr. Beck describes it.  The question as to the patio and stairs acting to collect water, the water cannot come from grade onto the upper patio – it cannot get there.  It may collect behind it; however, water cannot flow off the hillside onto the circular patio and down the steps.

Mr. Tolley inquired whether the information was correct relative to when the disturbance occurred.  Mr. Lemanowicz. stated that the records indicate that the construction started either at the end of 2002, beginning of 2003.  Mr. Johnson asked Mr. Lemanowicz if he agreed with the statement that the excess disturbance is all caused by the steps and the gazebo.  Mr. Lemanowicz said that there is excess disturbance behind the entire wall.  He thinks that maybe the limited disturbance on the originally approved plan was optimistic as far as how much it needed to be cut into to construct the wall.  But the upper circular patio is the primary issue.  He could not disagree with anything Mr. Beck stated but could not confirm it all either.

Mr. Aubin inquired as to who obtained the original approval for the house.  Mr. Beck stated that he bought the property from Drycreek.  A discussion ensued as to how that much land disturbance would have obtained a building permit without coming to the Board.  It would have been well in excess of the steep slopes ordinance. Mr. Tolley inquired whether there was information about the field changes.  Mr. Lemanowicz said he did have a letter from Charles Dorney of Drycreek Design discussing some of the design issues.  The latest revision to the plan was September 11, 2002.

Mr. Kimball asked Mr. Beck to confirm his testimony that in terms of the positive criteria, there is a planning benefit to not create more disturbances because in order to restore it back to its original state would cause more disturbance of that area.  Mr. Beck agreed with this. 

A motion to open the meeting to the public was duly made by Mr. Tolley and seconded. There was no public comment. 

The motion to close the meeting to the public was duly made by Mr. Tolley and seconded; all agreed.

Mr. Guidone called his next witness, Mr. Carlton Frost with Associated Consultants in Chester and a licensed professional engineer, licensed surveyor and licensed planner.  Mr. Frost, on behalf of Mr. Beck and B&B Land stated that he had reviewed the initial plans and prepared as built plans for the disturbance areas for the property in question and submitted to the Board.  Discussion ensued as to the differences in calculations as to the amount of disturbance indicated in the initial plans versus the current calculations. The initial plans were done in 2001 and then there were a number of revisions through 2002 (of slope calculations).   He felt that this does not have a great deal of bearing since the issue of the patio in the back is in an area it shouldn’t be.  Mr. Frost indicated that he saw stabilization in the area behind the wall with no erosion.  Also his office did not prepare any plans for the original owner to submit to the municipality.

Mr. Buzak marked as A-2 as built plans that were submitted to the Board which Mr. Frost prepared dated 10/20/06 with the latest revision on 1/9/07.

Mr. Frost stated when asked by Mr. Tolley that he did not know who designed the piping plan forum and that he did not know who designed the additional stairs and patio area.

Mr. Lemanowicz indicated that the applicant is asking for relief from the steep slope ordinance, and the allowable disturbance is based upon a percentage of the total area of that slope on lot.  The issue is that the total area is different from the preconstruction total area.  The individual slope ranges is different from the approved plan versus the as built.  If relief is granted, then it must be decided which percentage to use.  Currently, Mr. Lemanowicz said he does not have a percentage or consistent method of computing the slope disturbance.

Mr. D’Emidio indicated that he believes the Board can make a decision based on the main issue - that there is a tremendous amount of disturbance.

A conversation ensued about excess water going into the seepage pit.  Mr. Krieg asked whether it is possible that the seepage pit is overwhelmed, backing up and causing part of the water problem.  Mr. Beck explained his reasons why he did not believe the seepage pit is causing the problem.

Mr. Mountain asked Mr. Frost if he was aware of limited disturbance in the development of the grading plan.  He was aware but at no time discussed with the original builder the limited disturbance.  He only was involved in inspecting the septic system.  In his opinion, Mr. Frost indicated that the owner of the property should have been aware of the limited disturbance at the time when the construction was done in the areas of beyond limited disturbance.

Mr. Kimball noted that the Board needs to review it against the criteria in the ordinance and asked Mr. Frost, in his opinion, that in achieving to uphold the purpose of the steep slope ordinance that there would be practical difficulties to achieve this because of the existing circumstances on the property.  It would result in additional disturbance.  Mr. Frost agreed that in his opinion the same thing would be happening over again - that much of the slope would clearly be disturbed further and would have to be re-stabilized. There would be practical difficulties in achieving the goals of the ordinance given the current physical circumstances.  Mr. Aubin agreed with this also.  He would like to see Mr. Beck give additional consideration to the water problem.  He believes that the footings, building or the retaining wall intercepted the ground water which is causing the water flow to the house.

Mr. Guidone had no more witnesses. 

A motion was duly made by Mr. Tolley to open up the discussion to the public and was seconded.  All agreed.  There was no public comment. 

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

The Board members discussed what recourse Mr. Beck had to correct the problem.  They all agreed the seriousness of how this happened at all.  It was a violation of the slope ordinance that Mr. Beck inherited.  Mr. Beck asked the Board if the steps and upper patio could be left.

Mr. Buzak addressed the Board as to how the motion would be phrased, based upon the appeal that is being brought by the applicant, for denial of the lot development plan.  This must be viewed in context of the ordinance where someone violated the plan that was approved and then saying a revised plan was approved.   The ordinance provides that in order for the Board to grant deviation from what was approved, the need to find cause of undo hardship is necessary.  If undo hardship is cause, then this granting of the deviation will not impair the purposes of protection of the steep slopes and will not have a substantial impact on the surrounding properties.  In order to structure relief that is being considered based on the comments, it would be a granting of a deviation to the extent that there would be disturbance in areas that was not originally intended to be disturbed.  That disturbance would consist now of the removal of the steps and the gazebo and then the restoration of that area with the details of the reforestation to be approved by the engineer and environmental consultant.  Any other specific things such as the storm water runoff could be made as a condition and passed on to the engineer, and the conservation easement would need to be defined.  Effectively the appeal is being denied but supplemented with requirements. 

Mr. Kimball noted that the Board has the authority to grant these appeals but as part of that authority should make these judgments as to whether the criteria have been fully satisfied.  The comments indicate that the Board is not fully satisfied and therefore allowed to impose special conditions that are outside the ordinance to address and mitigate those concerns that have been identified.  The structure should be a grant of the appeal with conditions to mitigate the detriments that have been identified.  Mr. Buzak noted that due to the unusual nature of the situation the granting of the appeal would have to be worded not as endorsement but a consequence of dealing with a violation.  Precedence cannot be established.

Mr. Buzak would like to draft a resolution that reflects the comments of the Board and he’s not sure yet if it will be done positively or negatively.

Motion directing Mr. Buzak to draft a resolution addressing the Board’s concerns in the LDP waiver was made by Mr. Krieg and seconded by Mayor Florek.  Subject to further discussion at the June 20, 2007 meeting

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

                        Mr. Tolley

NAYES:           None

ABSENT:         Chairman Giordano                ABSTENTIONS:  None

Motion carried

PB-07-002; Waiver from Lot Development Permit Requirement Block 141, Lot 54 (23 Tingley Road/Bruce and Lori Flitcroft).

This second item on the agenda was discussed first by the Board.  Mr. Buzak requested to have this item moved to the June 20, 2007 Planning Board Meeting.  Douglas Henshaw, attorney for Bruce and Lori Flitcroft, requested in a letter that this matter be carried until then.  It was agreed that this application would not be heard and would be placed on the agenda for the June 20, 2007 meeting and that additional notice to the property owners and publication need not be made.

DISCUSSION ITEMS

Request for Extension to File Subdivision Deed on Cannavo Property:  Mr. Buzak stated that a request was filed by Vincent Bisogno, Attorney for Simava, LLC, in a letter dated May 2, 2007 addressing the Board and outlining the general reason for a 90 day extension from June 14, 2007 to September 12, 2007.  The applicant has 190 days to perfect the minor subdivision and the Board has the ability to extend that time period for an additional 190 days.  There has been much activity involved to perfect this.

Mr. Bisogno stated that plans and legal documents have been filed appropriately.  There was some difficulty with the application because of the unique property with its slopes and drainage issues which has been addressed.  The plans are now before Mr. Lemanowicz for his review.  He said he can be ready to accomplish this in the next 30 – 60 days but is requesting a 90 day extension just in case they run into problems regarding The Morris County Soil Conservation.

Motion to grant the 90 day extension was made by Mr. Krieg and seconded by Mr. Pierson.  Upon roll call vote:

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

                        Mr. Tolley

NAYES:           None

ABSENT:         Chairman Giordano                ABSTENTIONS:  None

Motion carried.

Request for a One Year Extension of Protection for Final Subdivision Approval of Lawrence Farmland, L.L.C., Phase l, ll, lll:  Mr. Buzak stated that a request by Edward J. Trawinski, Attorney representing Lawrence Farmland L.L.C., in a letter dated May 16, 2007 outlining the basis for the request for the extension of protection.  This is a protection against any changes in zoning or other regulations that doesn’t affect health and safety so that the development continues to be a forming development.  The Planning Board has the ability to grant up to three one year extensions one year at a time after the initial two year extensions that have been obtained by the final approval that was granted by the Board.  Last year the two year extension expired and a request was made to extend the time for Phases l, ll, lll.  A one time one year extension was requested.  The Board granted that extension for a one year period on the basis that the applicant was delayed by third parties and delays involving the water system and the efforts that were being made in conjunction with the Township to provide public water.  The applicant has been moving forward in a diligent way to do what needs to be done to move forward.

Mr. DeMarco, Attorney for Lawrence Farmland, stated that there has been a lot of progress over the last year.  The application has diligently pursued the standards of final approval and is requesting the first of the three one year extensions in accordance with the statute.  The maps have been completed and filed.  Various and numerous easements have been negotiated and finalized.  The first lot development has been filed, all site improvements are completed with the exception of landscaping, and final course of pavement on some of the roads.  All easements including the conservation easements have been negotiated and have been filed and recorded.

Motion to grant the one year extension was made by Mr. Pierson and seconded by Mr. Johnson.  Upon roll call vote:

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

                        Mr. Tolley

NAYES:           None                                        ABSTENTIONS:  None

Motion carried.

LDP Ordinance by Tome Lemanowicz:  Mr. Lemanowicz discussed how the lot development permit ordinance is being amended.  There are issues with it since it is not has tight as it should be in current times.   As properties become more difficult to find, people are becoming creative with the way things are worded, and loopholes are suddenly huge.  It has become quite a large task to close up these loopholes so developing these amendments will be ongoing for quite some time.  Mr. Lemanowicz will meet with Brian Hayes because there is an occasional issue between the lot development permits and the tree permits as there is not currently a lot of connection.  He is working out a method where the tree removal permit plan is bound into a lot development plan.  There are some procedural issues to address also.  The biggest change, however, is combining the lot development permit and calling it a land disturbance permit since there are issues with people disturbing land or things other than building a home, which was what the lot development permit was centered upon.  In this, the septic systems were missing along with people putting in patios, attics, pools and other grading that has a huge impact.  The soil erosion was merged into this and created two levels of permit – a minor and a major- based upon either the cubic yards of material moved or the area of disturbance.  The idea is to keep this as a very modest permit but still require someone to look at it for grading, drainage and so on. 

Mr. Tolley requested that Mr. Lemanowicz changes be reviewed individually first and discussed at a subsequent meeting.  He requested that the discussion continue at the next regular Planning Board meeting on June 20, 2007 and that the Workshop Meeting on June 4, 2007 be cancelled.

Woodland Lakes will be discussed at the next Planning Board meeting on June 20, 2007 and will be the first item on the agenda.

Motion to adjourn the meeting was made by Mr. Tolley and seconded by Mr. Krieg at 9:56 pm.

                                                                                    Respectfully submitted,

                                                                                    Beth Foley

                                                                                    Board Secretary