Open public meeting statement: The meeting was called to order by Chairman, Richard Innella, 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, Sharon Tufaro, Glenn Barbagallo, Darren Ponce, George Zitone, Ron Ruberto, Katherine Snyder, Charles Teufert, Richard Innella, Sharon M. Yarosz, the board secretary, William Haggerty, Esq., the board attorney and Michael O'Krepky, the board engineer.

Those absent were: Gene Crawford (excused).

FLAG SALUTE

MINUTES

The Minutes of August 9, 2007 Land Use Board meeting were reviewed.  A Motion was made by Mr. Barbagallo and seconded by Mr. Brace to approve the Minutes of the August 9, 2007 Land Use Board Meeting. All were in favor.  The Motion was carried.

NEW APPLICATIONS

Gerald Williams - LU-05-06-3 - Block 46, Lot 33 - Doremus Lane - "D" Variance:

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

Appearing before the board was Gerald Williams, the applicant.  Mr. Williams was sworn in by the board attorney.

Mr. Haggerty indicated that the notice was sufficient.  Mr. O'Krepky indicated that he submitted a report on August 1, 2007.  He stated that the one issue, Item A4" of his report regarding the RSIS was satisfied.  Item A4" read as follows: The issue of access, drainage, and required paving has not yet been addressed in any documents I received.  Mr. Williams's engineer, William Moran, satisfied this request by letter dated September 11, 2007.

Mr. Haggerty indicated that the applicant has received an LOI from the State of New Jersey Department of Environmental Protection dated May 22, 2007.

A Motion was made by Mr. Barbagallo and seconded by Mr. Zitone to deem the application complete.  All were in favor.  The Motion was carried.

Mr. Williams indicated that he is the owner of the subject property on Doremus Lane which he has owned for 20 years.  Approximately 10 to 15 years ago the township zoned the property commercial.  He further indicated that there is a residential neighborhood backing Doremus Lane.  He noted that there are 4 houses on the street coming in and the rest are all woods on the left entering Doremus Lane.  This property is located in a residential type neighborhood.  Beyond this, with the wetland restrictions on this property he can only use approximately .34 acres out of the approximate 2 acre parcel.  He feels that this does not make this lot viable for any type of commercial use.  He also felt if he wanted to put a commercial use on this lot, the whole neighborhood would be here this evening protesting. 

Mr. Haggerty questioned Mr. Williams as to what kind of work he does.  Mr. Williams indicated that he is a builder.  Mr. Haggerty referred to a variance map dated May 24, 2005 and revised August 11, 2005 prepared by David Gommoll.  Mr. Williams indicated that the revision on the map was the change of the driveway location.  He indicated on the original application he had the driveway was on the right side of the property in the right-of-way.  However, since he had to apply to the DEP for the wetlands delineation, he now has approval for the driveway to come off of Doremus Lane and go through the wetlands.  He indicated that they did a buffering averaging with the DEP.  Mr. Haggerty questioned Mr. Williams as to the owner of the property to the left of the subject property, Lot 34.  Mr. Williams indicated that this is his property and his intension is the combine this lot with Lot 33, the subject lot this evening.  He indicated that he has no choice but to do this because once you take the 150' buffer off from Lot 34 there is no buildable area left; therefore, it makes more sense to attach it to Lot 33.  Mr. Innella questioned Mr. Williams if there is another vacant lot next to lot 34.  Mr. Williams indicated that there is, however, he is unsure of the ownership of this lot because a few years ago he let it go for taxes.  Mr. Innella questioned if he all 3 lots could be combined.  Mr. Williams indicated that he does not want to do this and is unsure if he still owns this.  Mr. Ruberto questioned Mr. Williams as to what is on Lot 28 and 27.  Mr. Williams indicated that Lot 27 and Lot 28 have homes on them.  Mr. Haggerty questioned Mr. Williams if the lots across the street are improved, Lots 1, 2 & 3.  Mr. Williams indicated that they have homes on them with the exception of the Lot on Route 206, which is vacant.  Mr. Haggerty questioned if lot 21 directly behind the subject property is improved.  Mr. Williams indicated that it is vacant and has a pond on it.  He further indicated that the property is owned by the government.  Mr. Haggerty questioned Mr. Williams if Lot 36 along Route 206 is affected by wetlands.  Mr. Williams indicated that it was. 

Mr. Haggerty questioned Mr. Williams if he tried to develop this lot commercially prior to this application.  Mr. Williams indicated he did not.  Mr. Haggerty reviewed the application for the required setback variances needed.  He indicated that the applicant would need a front yard setback and a side yard setback.  The required front yard setback is 60' and the applicant is proposing 52' and the required side yard setback is 40' and the applicant is requesting a 38' side yard setback.  Mr. Williams indicated that they are requesting the variances for front and side yard setbacks because these are the required setbacks for commercial lots.  However, if it was a residential lot, he would meet the required setbacks.  He indicated for residential the required front yard setback is 50' and the required side yard setback is 35'. 

Mr. Haggerty indicated that it is Mr. Williams= burden to try and provide proof to establish that he should be granted a use variance for the construction of a single family home.  The applicant has indicated that he is surrounded by residential uses, that there are no commercial uses in the area.  The use of his property is limited by the wetlands and there is a very little envelope within which he can build.  Although he has road frontage on Route 206, it looks like it is not a useable road frontage because of the wetland restrictions.  The question Mr. Haggerty would have is the viability of the commercial use on this property and the desirability of the commercial use on this property.  Mr. Williams indicated that Doremus Lane is a dead end road and the kids use Doremus Lane as a playground.  He does not feel that the surrounding owners would want commercial traffic on this road. 

Mr. Barbagallo questioned Mr. Williams, assuming that he is still the owner of Lot 36 on Route 206, would he be willing eliminate this lot line also.  Mr. Williams indicated that he would if the board requires it, however, he would rather not do this.  He indicated that there would be no benefit to this because the lot was classified as total wetlands and he does not feel the town would get very much from taxes on this piece of property.  Mr. Haggerty indicated that if this lot is as constrained as he is testifying, it will not affect the applicant=s tax bill.  Mr. Williams indicated that Lot 36 is all wetlands and there are township drains on this lot and it is not useable.  Mr. Haggerty questioned Mr. Williams as to how far Lot 33 is setback from Route 206.  Mr. Williams indicated it is approximately 300'.  Mr. Innella agreed with Mr. Barbagallo to also combine Lot 36 to this lot. 

Mr. Haggerty indicated the question really is if this property is really appropriate for commercial use or was it the intention of the township when the zone was established to put the commercial use on Route 206.  He indicated that this property is on Route 206, however the applicant is approximately 300 feet off of Route 206 and it is surrounded by residences. 

Mr. Barbagallo questioned Mr. Williams has to the size of Lot 34.  Mr. Williams indicated it is approximately 1 acre.  Mr. Barbagallo indicated if he combines all 3 lots into one it will bring the lot into a more conforming use for residential. 

Mr. Haggerty questioned Mr. Williams as to the size of the house he is proposing on this lot.  Mr. Williams indicated he is proposing a 2200 square foot 2 story colonial with 3 bedrooms.  Mr. Haggerty questioned Mr. Williams if this type of house is consistent with the houses in the area.  Mr. Williams indicated it was. 

Mr. Innella indicated that he feels this request for a use variance is a good idea.  He feels it is more uniform to what the neighborhood would be.  He also feels that commercial is not conducive to the neighborhood in this particular situation. 

This matter was opened to the public.

Appearing before the board was Keith Hyche, Esq. on behalf of the neighboring property owner, Mr. and Mrs. Reiners.  He indicated that the board and applicant have made an assumption that the neighbors would like to see a house here, however, his client would like to see a commercial use here.  He has reviewed the application, listened to the testimony and reviewed the township=s Master Plan.  He does not think that Mr. Williams has met his burden of proof under the Land Use Law for a Use Variance.  He indicated that there is really no showing that this lot is uniquely situated and uniquely set up to be used only as a residential lot.  He heard testimony that this lot is off of Route 206 and if you don't consider Lots 34 and 36 there is no frontage on Route 206.  He was reviewing the Zoning Map of Montague Township and in this zone there are actually several other lots that are similarly situated, they are off of Route 206 on a side road and they do not have any frontage.  There is no testimony as to why this lot is different.  There is no planning report to make a decision on an application like this.  Mr. Hyche referred to the township=s Master Plan.  He indicated that the Master Plan recommends that you don't allow any more residential construction on lots that are less than 3 acres in size.  He stated that even if you take all 3 lots of the applicant and combine them it is approximately 2.8 acres.  In doing this the board would be creating an undersized residential lot.  He indicated that this section is also in the proposed town center overlay according to the Master Plan Exhibit.  He referred to page 100 of the Master Plan which recommends that the town should reinforce the existing uses in the town.  He feels by approving this use variance, the board would be deviating from the Master Plan in this situation.  He further stated that there has been some conclusion testimony that this property can not be used as a commercial property.  Again, there is nothing that supports that other than the applicant=s conclusion.  The applicant testified that there have been no other applications regarding this property, therefore, he assumes that nobody has ever tried to build anything commercial here.  There has been no testimony or anything that this has been marketed as commercial property.  For all these reasons, he would object to the granting of a use variance and ask that the board deny the application. 

Appearing before the board was Reginald R. Cole and was sworn in by the board attorney.  Mr. Cole questioned Mr. Williams if he built approximately 80% of the homes on Doremus Lane.  Mr. Williams indicated that this is true.  He questioned Mr. Williams if he is intending to put the house at the bend in the road.  Mr. Williams indicated that the house will be located just before the bend.  Mr. Cole indicated that this piece of property is surrounded by water as you go in on the left.  Mr. Williams agreed.  Mr. Cole indicated that as far a putting in a commercial piece of property on the subject lot, if the kids are playing on the street, there will be trucks for delivery, there will be cars going in and out of this lot, so no longer will the children have a Aplayground area@.  He feels it should be a house at this location, but not a commercial business.  He feels that all the children on this street are in danger of being hit by a truck or a car.  It is a dead end street.  In fact, at the end of the street it goes into Sandyston Township.  He indicated that the hunters from Sandyston Township go to the end of Doremus Lane and go through a dirt path to hunt.  He feels the property is too small with the wetland constraints for a commercial piece of property.  Mr. Zitone questioned if there is a school bus stop at the end of Doremus Lane.  Mr. Cole indicated that there is at the end by Route 206, because the bus can not go into this road and make a U-Turn. 

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

Mr. Innella indicated that this board has had other applications in this town where there is commercial on one side of the road and residential on the other side of the road and people have had the pleasure of looking at trees and nature and then the board receives an application for a commercial building and the neighbors were very unhappy. 

Mr. Haggerty questioned Mr. O'Krepky if there would be an area on this lot if it was designed for a commercial building to put parking.  Mr. O'Krepky indicated that there could be parking for commercial, however, he did not do the design.  The applicant would need one parking stall for every 200 square feet of building.  The applicant is looking at a very small structure similar to, if not smaller, than the proposed house because of the parking, the circulation requirements, dumpster requirements, and all the things that come into play with commercial property which do not come into play with the residential property.  He further indicated that stormwater management with a building this size is not a big problem because there will not be that much impervious coverage.  They probably will not be disturbing more than an acre and creating less than 1/4 acre impervious.  He feels that the only type of commercial property that could go on this lot is a storage building.  The property does not lend itself to the commercial uses because of the restrictions on the property. 

Mr. Teufert questioned Mr. Williams as to when he purchased this property.  Mr. Williams indicated that it was approximately 20 years ago.  Mr. Teufert questioned if the property was re-zoned since he purchased it.  Mr. Williams indicated that it was.  He further indicated that at the time that it was re-zoned, he asked the township to not make it commercial because of its location.  He was told not to worry about it, because it was easy to get a variance.  The previous zoning was residential.  The zoning change was 400' off of Route 206 changed to commercial without regard for anything. 

Mr. Zitone questioned Mr. Williams if he tried to sell this property as commercial property. Mr. Williams indicated that he has not because he does not think, nor has he ever thought, it was viable as commercial property because it is on a residential street surrounded by residential dwellings.

Mr. Haggerty recommended to the board that they have their Planner, Fred Suljic, take a look at this application and issue a report in terms of viability as a commercial property.  The board agreed.  Mr. Williams also agreed to carry this matter to the next meeting to have the board planner do a report.

Mr. Hyche requested that he have the opportunity to review the Planner=s report prior to the next meeting and perhaps hire his owner planner on behalf of his client.

A Motion was made by Mr. Barbagallo and seconded by Mr. Ruberto to carry this application without further notice to the October 11, 2007 Land Use Board meeting.  All were in favor.  The Motion was carried.

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

OLD BUSINESS

Developer's Fee Ordinance:

Mr. Haggerty indicated that a review letter was received by the Township from COAH with regard to the Developer's Fee Ordinance that was submitted to them for review and approval.  There were several corrections that needed to be made to our existing ordinance.  Therefore, Mr. Haggerty drafted a new Developer's Fee Ordinance based on the sample ordinance sent by COAH.  The fee allowed by COAH for the Developer's Fee Ordinance is 1% of the assessed value for residential and 2% for Commercial.  

A Motion was made by Mr. Barbagallo and seconded by Mr. Zitone to approve the revised Developer's Fee Ordinance and forward same to the township committee for review and adoption and also, to forward same to COAH for approval.  All were in favor.  The Motion was carried.

Fence Ordinance, C-2 Zone (Highway Commercial Zone) Permitted Uses and Accessory Structure Ordinance Revisions:

The board reviewed the Fence Ordinance, the C-2 Zone (Highway Commercial Zone) Permitted Uses and Accessory Structure Ordinance Revisions which were sent back from the Township Committee after their first reading.  The board acknowledges that no changes have been made.  A Motion was made by Mrs. Tufaro and seconded by Mr. Ruberto to send the Fence Ordinance, the C-2 Zone Ordinance and the Accessory Structure Ordinance back to the Township Committee for a second reading.  All were in favor.  The Motion was carried.

Sand & Gravel Operations Ordinance:

Mr. Haggerty indicated that the board had suggested that a Sand & Gravel Operation Ordinance be adopted.  He indicated that there is only one sand and gravel operation in Montague Township which has already appeared before the board and agreements have been made with the applicant for certain reporting and this has been incorporated in the conditions of the approval.  He does not feel the township needs a Sand & Gravel Operations Ordinance.  He further indicated that any future sand and gravel operation in this township would be a nonconforming use, therefore, the township could implement requirements in the conditions of the resolution.  He further indicated if the township had a sand and gravel operation ordinance it would be done by way of an annual licensing and this would come out of the governing body.  He will speak to the township attorney regarding this issue.  The board agreed.

High Point Country Club - Site Plan:

A lengthy discussion was held with regard to conflict issues if the High Point County Club comes in with their site plan.  It was agreed that Mr. Haggerty should interview each board member before going forward with this issue.  It was noted that the board members may change since there are only 3 meetings left to the end of the year and the probability of the applicant filing an application and appearing before the board this year is very unlikely. 

VOUCHERS

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

l) KSM Engineering regarding Cellco (escrow) in the amount of $637.50; and

2) KSM Engineering regarding Community Corp.(escrow 07-09) in the amount of $112.50; and

3) KSM Engineering regarding Williams (escrow) in the amount of $112.50; and

4) KSM Engineering  regarding Crown Aggregates (escrow) in the amount of $150.00; and

5) KSM Engineering regarding General Administration (August) in the amount of $300.00; and

6) Dolan & Dolan regarding Cellco (escrow) in the amount of $136.50; and

7) Dolan & Dolan regarding High Point Holdings (escrow)  in the amount of $156.98; and

8) Dolan & Dolan regarding High Point holdings (escrow)  in the amount of $163.80; and

9) Dolan & Dolan regarding Crown Aggregates (escrow) in the amount of $40.95; and

10) Dolan & Dolan regarding Minisink Reformed Church (escrow) in the amount of $95.55; and

11) Dolan& Dolan regarding Thompson Stone (escrow) in the amount of $27.30; and

12) Dolan & Dolan regarding Zitone Construction (escrow 07-03) in the amount of $197.93; and

13) Dolan & Dolan regarding Williams (escrow) in the amount of $54.60; and

14) Dolan & Dolan regarding General Administration (July) in the amount of $750.75.

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

CORRESPONDENCE

The correspondence was reviewed and no formal action was taken.

Mrs. Tufaro referred to the Resolution for Block 39, Lot 24.01, 432 Route 206 South owned by Tom Bendas.  Mr. Teufert stepped down from this discussion.  The reason she is referring to this resolution is that the applicant needs some clarification if the 5 uses approved on this lot were for the entire lot or for the front building only.  The board indicated that everything they discussed at that hearing was for the front building only.  She indicated that there is an issue with the rear building on the lot.  She further indicated that she reviewed the prior Resolutions on this lot for the rear building for the rental business.  She was informed after that there was antique cars in that building and now there is a light industrial business.  She indicated that this system integration business is operating at the present time without site plan approval.  She noted that there was also an issue with the fact that there are no facilities in the rear building for the employees.  She indicated that she does not have a problem with the use in this building, because it is a permitted use.  Mr. Brace indicated it is a permitted use, but it is a change of use.  Mr. Barbagallo questioned that the issue here is that it is a change of use from one permitted use to another permitted use.  Mrs. Tufaro indicated that when the tool rental went into the rear building there was some discussion in the Resolution that they could not get a septic for the rear building because there is wetlands and that they could use the apple pit facilities.  She indicated that there is currently compost toilets in this building.  Mrs. Tufaro questioned the board if they are changing the use, are there any guidelines as to facilities to this building. Mr. Haggerty indicated that every time there is a change of use, the township can require that they come before the board for a site plan approval or waiver of site plan. 

PUBLIC PARTICIPATION

The meeting was opened to the public. 

Appearing before the board was Reginald R. Cole.  Mr. Cole spoke with regard to the law on conflict of interest. 

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

ADJOURNMENT

Having no further business, a Motion was made by Mr. Barbagallo 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