MINUTES OF THE OCTOBER 11, 2007 MONTAGUE TOWNSHIP LAND USE BOARD MEETING

Open public meeting statement: The meeting was called to order by Vice Chairman, Glenn Barbagallo, and a statement was made that the meeting was duly advertised and met all of the requirements of the Open Public Meetings Act.  Those present were: Jason Dunn (As Mayor Designee), Ted Brace, Glenn Barbagallo, Darren Ponce, George Zitone, Ron Ruberto, Gene Crawford, Katherine Snyder, Charles Teufert, Sharon M. Yarosz, the board secretary, William Haggerty, Esq., the board attorney and Michael O'Krepky, the board engineer.

Those absent were: Sharon Tufaro (excused) and Richard Innella (excused)

FLAG SALUTE

MINUTES

The Minutes of September 13, 2007 Land Use Board meeting were reviewed.  The board secretary indicated that Tom Bendas, the owner of Gardens to Grow, read the proposed minutes and under Acorrespondencethere was a discussion about his property.  It indicated that a ALight Industrialbusiness was operating in the back building on his property.  Mr. Bendas requested that the wording ALight Industrialbe replaced with Aa system integrationbusiness.  The business currently being operated out of this building is not light industrial.  A Motion was made by Mr. Zitone and seconded by Mr. Ruberto to approve the Minutes of the September 13, 2007 Land Use Board Meeting with the requested change by Mr. Bendas. All were in favor, except Ted Brace and Gene Crawford, who abstained.  The Motion was carried.

APPLICATIONS CARRIED FROM PREVIOUS MEETINGS

Gerald Williams - LU-05-06-3 - Block 46, Lot 33 - Doremus Lane - ADVariance:

Due to the fact that this application is for a ADVariance, Mr. Brace and  Mr. Dunn stepped down.  Mrs. Snyder also stepped down due to a conflict of interest.

Appearing before the board was Gerald Williams, the applicant.  Mr. Williams agreed that he was still under oath from the previous meeting.

Mr. Haggerty indicated that the board carried this meeting from last month in order to have the township planner look at this application because there is a question before the board for its suitability for the proposed use and also the suitability for the permitted uses in the zone.  Mr. Suljic, the township planner, has prepared a short report and is here this evening to provide the board with his testimony. 

Mr. Suljic appeared before the board and was sworn in by the board attorney.  He indicated that he is the planner for the Montague Township Land Use Board. He noted that he visited the property last week and prepared a report dated October 8, 2007.  He also reviewed the Master Plan and the application.  He indicated that Lot 33 is severely constrained and with the 150 foot buffer, although he can reduce this buffer to 115 feet with a transition waiver, it would still be very hard pressed in which to put a commercial piece of property.  He could put a parking lot and park trailers there, if he had that type of business or if he wanted to lease it to someone to do this.  However, to actually put a worthwhile business in there for the permitted uses in the C2 zone and have sufficient parking, he would need variances for front yard and side yard.  He indicated he made a comment in this report, that unless all 3 lots were consolidated, the potential development of the individual lots certainly would be severely limited.  He further stated that if the applicant would agree to combine the lots, it would make a lot more sense.  He is not sure what the size of lots 34 and 36 are, but it is close to 3 acres as required by the R3 zone.  The applicant has the right to withdraw this application and request of the township committee the re-zoning of these lots, which he would support.  The applicant could also agree to combine all 3 lots and keep it as a residential lot.  In reviewing Doremus Lane, it is a minor site.  It should not be servicing any kind of business.  He further stated that he understands what the Master Plan was trying to do by rating the 206 corridor, but because of the pond, and the lake in the area, the buffer setbacks and the wetlands, it is severely constrained.  It makes it almost impractical for this type of use.  As shown by the applicant on his plans, he can just about get a single family home with parking for 1 or 2 cars.  He indicated that if the applicant wishes to continue and provide the testimony to meet the positive and negative criteria for a use variance, then he would suggest at the very least, if he is willing to do it, to combine the 3 lots.  In his review of the 3 lots, the applicant is the owner of Lot 34, however, it is not understood if he is the owner of Lot 36.  Mr. Williams indicated that he let it go for taxes.  Mr. Haggerty indicated that the information he received is that the tax lien was sold and it is being foreclosed.  However, the Order of Redemption is close, but has not yet been filed.  Mr. Haggerty handed out to the board a copy of the Tax Map showing the 3 lots.  This was marked as Exhibit ALUB 1".  Mr. Suljic indicated that Lot 36 is the lot that is on Route 206.  He further noted that Lot 36 does not make any sense at all to develop it with commercial if you look at the site and you visit it because it is a very narrow lot.  You could not approach it from Route 206, you would have to come off of Doremus Lane.  The problem is that this lot is so narrow, it is a danger.  Mr. Suljic indicated that when this was re-zoned, he is not saying that the township was ill-conceived to have this zoned this way, but with all the regulations that have come up in the last few years with wetlands, this property should be reconsidered for re-zoning or depending upon the testimony given by Mr. Williams meeting the negative and positive criteria, the board should consider this criteria if he meets the test.  Mr. Haggerty questioned Mr. Suljic if lots 34 and lots 36 are affected by wetlands.  Mr. Suljic indicated that they were.  He feels it would be the same 150 foot buffer.  He feels that on lot 34 he may be able to obtain a transition waiver.  Mr. Haggerty questioned Mr. Suljic if there was a commercial business to park trailers, would this be in keeping with the uses in the area.  Mr. Suljic indicated it would not.  Mr. Suljic indicated that this property is not conducive to commercial use meaning truck traffic and truck movement.  The lot has a residential character. 

This matter was opened to the public.

Appearing before the board was the objector's attorney, Keith Hyche.  The objectors are Steven and Karen Reiners, adjacent property owners of 8 Doremus Lane.  Mr. Hyche questioned Mr. Williams if he recently sold another lot on Doremus, Block 45, Lot 7.  Mr. Williams indicated that he did which was on the corner of Doremus Lane and Route 206.  He further indicated that the property was combined with Nelson Hinkley's property.  Mr. Hyche questioned Mr. Williams if he in anyway restricted the deed in this transaction so no one could enter onto Route 206 with any kind of commercial vehicle.  Mr. Williams indicated that he did not restrict the deed. Mr. Hyche questioned Mr. Williams as to who is foreclosing on Lot 36 in question.  Mr. Williams indicated that he does not have the name of the lien holder, but it was a tax foreclosure and he just stopped paying taxes on it.   He indicated that it was not the township, it was an investor. 

Mr. Hyche referred to Mr. Suljic letter of October 8, 2007, paragraph A1" which states: ALot 33 which is one (1) acre in size is further constrained by adjacent wetlands.  It's use as commercial property is further limited due to its deficient lot width (150 ft. in C-2 zone). He asked Mr. Suljic if he said that because Lot 33 is less than 150' wide.  Mr. Suljic responded yes, he believes that it is.  Mr. Hyche questioned Mr. Suljic if he is aware that in the R3 zone, the residential zone, is also 150'.  Mr. Suljic agreed.  Mr. Hyche stated, therefore, it is the same kind of constraint between the commercial and the residential.  Mr. Suljic indicated that it does not mean it is appropriate, but it is the same kind of constraint.  Mr. Hyche referred to paragraph A2" of Mr. Suljic's report which states AUnless all three lots were consolidated, the potential commercial development of individual lots is severely limited.  Mr. Hyche questioned Mr. Suljic if he has explored if the lots could be combined and a driveway could go through Lots 36 and 34 to 33 to serve a commercial use there.  Mr. Suljic indicated that he did not do this because he was not asked to do a design.  He was asked to review this file in terms of its consistency with the Master Plan.  Mr. Hyche questioned Mr. Suljic if it is fair to say that it is his opinion that Lot 33 was zoned as a commercial lot by mistake.  Mr. Suljic indicated that he does not like to use the word mistake, but sometimes when you go through zoning and re-examination, planners do not look at every individual lot and every individual constraint that might be applied.  He further stated that the Municipality, and this is bringing it to the attention of the Land Use Board and Township Committee, if there is no intention to upgrade Doremus Lane beyond a minor street, then certainly they should re-consider what they want to do with this area.  Mr. Hyche referred to paragraph 4 of Mr. Suljic's report which states AThe use would be consistent with the residential character of that area surrounding Doremus Lane.  He asked Mr. Suljic if it was true that the area north of Doremus Lane is also zoned as commercial property and most of that is vacant.  Mr. Suljic agreed that most of it is vacant, but not all of it.  Mr. Hyche questioned Mr. Suljic if it is also true that there are 6 lots in the C2 zone on Mill Road and Myrtle Drive which are just to the North of Doremus Lane and they do not have frontage on Route 206.  Mr. Suljic agreed.  Mr. Hyche indicated that the statement as to the character of the neighborhood, Mr. Suljic was just referring to his client's house to the east and houses across the street from the subject property.  Mr. Suljic indicated that he did not know who the person was objecting and where they live.  Mr. Hyche questioned if there were houses directly behind the subject lot or is it vacant.  Mr. Suljic indicated that this was correct, it was vacant land.  Mr. Hyche referred to page 100 of Montague Township's Master Plan which states Athat no further residential construction should be permitted on densities less than 3 acres.  Mr. Suljic indicated that this is the recommendation of the Master Plan, which he did not write.  However, this is not supported in every incident because in this particular case, there are lots that are under 3 acres in size.  He further stated that this is the reason why an applicant can come to the board to show the special conditions and whether it is the constraint of the lot, the constraint of the topography or constraint of other issues that confront the development of that piece of property.  He also indicated it depends upon the lands that are in the neighborhood.  Mr. Hyche questioned Mr. Suljic if the minimum lot size in the C2 zone is 40,000 square feet.  Mr. Suljic agreed.  Mr. Hyche indicated if Mr. Williams were to combine all 3 of the lots that he owns on Doremus Lane, he would have approximately 2.7 acres.  He questioned Mr. Suljic in affect if the board granted a use variance, would they be creating an undersized residential lot.  Mr. Suljic indicated that if the applicant agreed to combining the lots, this would be the case.  However, he further stated, that once the developable potential of the those other 2 lots are determined with all the constraints, what will be left to develop will be substantially less than 2.7 acres of land.  Mr. Suljic indicated that it is his professional opinion that this lot is not conducive to commercial development. 

Mr. Haggerty questioned Mr. Suljic if the commercial zone runs parallel to Route 206.  Mr. Suljic indicated that it does.

Mr. Hyche indicated to the board that there has been no showing that this lot, which is not on Route 206 in the commercial zone, is any different from the other lots which do not front on Route 206 and are in the commercial zone.  He further indicated that there has been no testimony or evidence here that Mr. Williams has tried to market this as a commercial property or that he has made any previous applications to this board for any kind of commercial development.  He feels that the applicant has a unique argument that there is hardship because he may not be able to add Lot 36, the lot which is on Route 206, because he has not paid the taxes on it and it is going to go away.  Mr. Hyche indicated that the board engineer stated at the last meeting and the planner also stated that it is possible that this property could be used as a commercial use. 

Mr. Williams stated to the board that he feels putting anything commercial on this lot is detrimental to Doremus Lane.  He also stated that Lot 34 and Lot 36 are gone as far as development because of the DEP.  He further stated that he is combing Lots 34 and 33 and there will be over 200 feet of road frontage to make the lot conforming in this respect.  Mr. Williams stated that he does not think commercial development would fit into this neighborhood.  Mr. Hyche indicated that he feels a business is only open a certain amount of hours per day, per week and that is the only impact it will have on the road, not something that will be open 24/7 like a residence.  Mr. Williams indicated that he has built most of the homes on Doremus Lane. 

Mr. Haggerty indicated that this property is zoned commercially, it is not zoned R3.  If this property was zoned R3, the zoning ordinance would permit construction of a single family home because Ordinance 76-16 grandfathers one acre lots.  He indicated that it is the applicant's burden of proof to establish entitlement to the use variance.  The applicant can show special reasons for this and advocate the granting of the variance.  He can also argue hardship, the hardship is argued in terms of the wetlands, and the board does have the wetlands LOI that was submitted by the applicant, which appears that the wetlands takes up 2/3 of the lot.  He indicated that the applicant has offered to combine Lots 33 and 34 and lot 36, if appropriate, which is also affected by wetlands.  He further stated the in terms of the character of the neighborhood the board has to decide whether a commercial use would be appropriate for the subject lot. 

Appearing before the board was Mr. Reiners and was sworn in by the board attorney.  He indicated that there is man who parks a tractor trailer on Doremus Lane.  Therefore, there is truck traffic that is on Doremus Lane. 

Appearing before the board was Mr. Cole and was sworn in by the board attorney.  Mr. Cole indicated that he feels this is a residential area and it should stay a residential area.  He further noted that there are several homes built in commercial zones in Montague. 

There being no further public, this matter was closed to the public.

A Motion was made by Mr. Zitone and seconded by Mr. Ponce to approve the Use Variance request of the applicant and also the combine Lots 33 and 34 and possibly 36 if the applicant is able to retain ownership to this property.  Roll Call: Glenn Barbagallo, yes; Darren Ponce, yes; George Zitone, yes; Ron Ruberto, yes; Gene Crawford, abstain; and Charles Teufert, yes.  The Motion was carried.

Mr. Haggerty indicated to Mr. Williams that he will have to show proof to the board that he has made an effort to redeem Lot 36.  Mr. Williams agreed.

Mr. Brace, Mr. Dunn and Mrs. Snyder returned to the meeting.

Cellco Partnership d/b/a Verizon Wireless - LUB 07-07 - Block 18.42, Lot 7 - Clove Road - Preliminary & Final Site Plan & Variance:

Mr. Brace and Mr. Dunn stepped down from this application due to the fact that this applicant was requesting a ADVariance.  Mr. Zitone also stepped down.

See Transcripts prepared by Iris LaRosa, C.S.R. of Precision Reporting Service which are attached hereto and made part hereof.

A Motion was made by Ms. Crawford and seconded by Mrs. Snyder to carry this application to the November 8, 2007 Land Use Board meeting without further notice.  All were in favor.  The Motion was carried.

Mr. Brace, Mr. Dunn and Mr. Zitone returned to the meeting.

A Motion was made by Ms. Crawford and seconded and seconded by Ms. Barbagallo to take a 5 minutes recess at 10:30 p.m.  All were in favor.  The Motion was carried.

A Motion was made by Ms. Crawford and seconded by Ms. Snyder to reconvene the meeting at 10:40 p.m.  All were in favor.  The Motion was carried.

OLD BUSINESS
Developer's Fee Ordinance:

Mr. Haggerty indicated that this ordinance was originated at this board and was approved and sent to the governing body for approval and adoption.  The governing body had the first reading without any changes.  He indicated that it is mandatory that this ordinance come back to the Land Use Board for review before the second reading. 

A Motion was made by Mr. Zitone and seconded by Mr. Teufert to approve the Developer's Fee Ordinance and forward same to the township committee for a second reading. Roll Call: Jason Dunn, yes; Ted Brace, yes; Glenn Barbagallo, yes; Darren Ponce, yes; George Zitone, yes; Ron Ruberto, yes; Gene Crawford, yes; Katherine Snyder, yes; and Charles Teufert, yes.  The Motion was carried.

Sand and Gravel Operations Ordinance:
It was agreed to table this matter indefinitely. 

VOUCHERS
The vouchers were reviewed.  A Motion was made by Mr. Ponce and seconded by Ms. Crawford to approve the following vouchers:

l) KSM Engineering regarding Biccum (escrow) in the amount of $187.50; and

2) KSM Engineering regarding General Administration (September) in the amount of $300.00; and

3) Coded Systems regarding Land Use Books for resale in the amount of $868.30.

Roll Call: Jason Dunn, yes; Ted Brace, yes; Glenn Barbagallo, yes; Darren Ponce, yes; George Zitone, yes; Ron Ruberto, yes; Gene Crawford, yes; Katherine Snyder, yes; and Charles Teufert, yes.  The Motion was carried.

CORRESPONDENCE

The correspondence was reviewed and no formal action was taken.

PUBLIC PARTICIPATION

The meeting was opened to the public.  There being no public participation, the meeting was closed to the public.

ADJOURNMENT

Having no further business, a Motion was made by Mr. Brace and seconded by Mr. Zitone to adjourn the meeting.  All were in favor.  The meeting was adjourned.

Minutes prepared by:

SHARON M. YAROSZ
Land Use Administrator