MINUTES OF A REGULAR MEETING

ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF MOUNTAIN LAKES

September 7, 2006

Chair Jill Gotthelf called the meeting to order and read the Open Public Meeting Advertisement: Notice of this meeting was given to the Citizen and the Daily Record, posted with the Borough Clerk and on the Bulletin Board and was made available to all those requesting individual notice and paying the required fee.

ROLL CALL:

Present: Gotthelf, Bolo, Kane, Moody, Sheasby, Sullivan, Max

Absent: Richter, Rusak Also Present: Attorney Michael Sullivan

Council Liaison – none

REVIEW OF MINUTES: The minutes of the August 3 meeting were approved by voice vote.

MEMORIALIZING RESOLUTIONS:

BRIAN & TARA NIELSEN Appl.#06-485

Jim Moody made the motion to adopt the resolution of approval, seconded by David Kane and carried by 6 - 0 roll call of eligible voters.

ALEX & CHRISTINE GEMICI Appl. #06-489

Peter Bolo made the motion to adopt the resolution of approval, seconded by Chris Sullivan and carried by 6 - 0 roll call of eligible voters.

MARC & MARIBEL ABBATE Appl. #06-490

Jim Moody made the motion to adopt the resolution of approval, seconded by Arthur Max and carried by 5 - 0 roll call of eligible voters.

JEFFREY & RANDI KAUFMANN Appl. #06-492

Jim Moody made the motion to adopt the resolution of approval, seconded by David Kane and carried by 6 - 0 roll call of eligible voters.

JEFFREY & KELLY AROESTY Appl. #06-493

Peter Bolo made the motion to adopt the resolution of approval, seconded by Chris Sullivan and carried by 6 - 0 roll call of eligible voters.

PUBLIC HEARINGS: All applicants and witnesses were sworn in by Chair Jill Gotthelf.

Carried from August 3:

CHRISTOPHER & ANNA-LISA GALLO 16 Rockaway Terrace

Bl. 111 Lot 1.02 Appl. #06-491

Side RA zone

Chris Gallo apologized for not having resolved this issue with the neighbors prior to the August hearing. Since that meeting, Gallo consulted with a sound abatement expert and will install sound blankets (high density filament material guaranteed to reduce noise by 30%) on the units and will also install shrubbery to block the view of the units from the neighbors. The Gallo’s neighbor Matt Whichard, who had opposed this plan at the previous hearing, testified that he advocates proceeding with the application approval with the two conditional installations. Whichard said he prefers a barrier of arborvitae or another evergreen shrubbery, with a minimum height that would block the view of the units from his home.

Chris Sullivan made the motion of approval; Jim Moody seconded the motion with the conditions of the noise abatement blanket and evergreen barrier; motion carried by 6-0 roll call of eligible voters.

New Applications:

ANDREW & VIVIEN GREENBERG 65 Lake Dr.

Bl. 101, Lot 21 Appl. #06-495

FAR RA zone

The Greenbergs were accompanied by Architect Joan Nix. Andrew Greenberg said that they eat in the kitchen during inclement weather. Since they have family functions at their home, they would like to install glass panels on an existing screened porch. Nix described the lot on Mountain Lake. A 1996 application received variances for front, side and FAR (when the limit was 20%). The Greenbergs have lived here since 2002 and have made only minor interior changes. Nix referred to the plans submitted with the application. The porch is approximately 13’ x 18’, has a solid floor and roof so this proposal will not impact improved lot coverage or the bulk of the house. The FAR will increase from 20.06 to 21.19.

The Greenbergs would like to retain the option of retaining the screening of this area during the summer months. Exhibits A2 & A3 were photographs from the glass panel manufacturer Nanowall. The panels will work like bi-fold doors. The difference in appearance to the neighbors would be minimal.

There was no comment from the public.

Board comments: David Kane – when screened porches are approved, there has been a condition that heat could not be installed in that space; he has a problem with this concept. Greenberg said he has spoken to the one neighbor who would be impacted and he has no problem with the proposal. Nix pointed out that there is land along the shore of the Greenberg’s property that is technically considered lake. If this area were part of the property size calculation, the variance would not be required. Board members pointed out that the previous variances pushed the envelope and now you are asking for more. Kane – if you were on the border of the FAR limit, this would be a more compelling argument. Jim Moody – it doesn’t really change the mass of the house. Arthur Max – in this particular house, I don’t see the negative impact of this increase. Kane – every porch we have approved could ask for this change.

Bob Sheasby shared Kane’s concern – this sets up the opportunity to enclose other porches. Gotthelf agreed that it doesn’t change the bulk but she would not want to see a flood of other applications with this request.

Jim Moody moved to approve the application as submitted, Chris Sullivan seconded the motion, denied by the 4-3 roll call vote because a D variance requires 5 affirmative votes (Kane, Sheasby, Bolo denied.)

MICHAEL & PATRICIA MCELDUFF 194 Intervale Rd.

Bl. 124, Lot 2 Appl. #06-496

Rear RA zone

The McElduffs explained that they have finished an addition on their home and would like to add a deck in the rear of the house. They hope to create three useable areas on the deck: cooking, eating, and lounging. They have considered different configurations to avoid crossing the 25 foot setback line. They prefer not to go farther to the side because of a significant tree and a large lilac bush. One corner of the deck would cross the setback line by 4’ 4”. The deck will be only one step elevated from the ground on the left side, 7” above grade in the rear. Since it is below 30”, there is no requirement for a railing. There is a row of mature pines between this and the neighboring property. There is only one window in the rear of the neighboring house. McElduff estimated that house to be approximately 35’ from the property line. Kane asked why, with this size deck, they need the extra 4 feet. McElduff said that if there were a reduction in size, they would lose one of the functional areas of the deck.

No public comment. Chris Sullivan made the motion for approval, Jim Moody seconded the motion. David Kane noted that the approval is based on the plans submitted. If the step is not required, the deck cannot be moved closer to that side. The variance is granted for the deck (not the step) to be 20’ 8” from the rear property line. The depth of the deck on that side is limited to 10’3” . The variance was approved by a 7-0 roll call vote.

BOB & JENNIFER VOLOSIN 77 Cobb Road

Bl. 57, Lot 12 Appl. #06-497

Front, Bldg. Env., Soil Moving, ILC, FAR RA/RAA zone

Lee Levitt, attorney representing the Volosins, introduced Architect Seth Leeb. Levitt described the request for approval to reconstruct a home on a lot where the previous home was destroyed by fire. 71% of the property is in the RA zone, the balance is in the more restrictive RAA zone. The application submitted to the Board did not note the FAR variance but that variance was listed in the newspaper notice. The mailed notice to neighbors within 200 feet included “any other variances required”. Attorney Sullivan pointed out that a ‘D’ variance is significant and it should have been included in the notice to the neighbors. The FAR variance would not be required under the RA bulk requirements, but if the Board ruled that the RAA restrictions apply, the FAR variance would be required. Sullivan said that case law would apply the more rigid requirements. We previously ruled on a similar property that, if all the construction could be completed in the less restrictive zone, that zone’s requirements would apply. Attorney Sullivan recommended that, if the D variance was not noticed, they need to renotice and come back. Chris Sullivan noted that the property frontage of 125’ does not meet the RAA requirement.

Levitt pointed out that precedence of the ruling on a similar lot should not be considered because that house was able to be built in the RA zone; this situation is different.

Michael Sullivan – right now, the notice is not sufficient if the Board determines that the RAA standards apply. Levitt - we tried to keep the minimal 50 foot distance from the neighbors. This house would be smaller than the original Hapgood house.

Jill Gotthelf made the motion that, if a portion of the building crosses into the RAA zone, those standards must apply, and the applicant must renotice. If you redesign and keep the house in the RA zone, other variances might be required; motion seconded by David Kane.

Public comment: Bill Burkett, 78 Cobb Road, directly across the street from the subject property, asked where he would receive the information before he makes other comments. Application data must be on file 10 days prior to the hearing. The motion was approved by 7-0 roll call vote.

The Board agreed that it should reschedule the October 5 meeting because of the conflict with the Wildwood Back to School night. Kane, Gotthelf and Richter would have a conflict and Jim Moody will be out of town that week. It was agreed to reschedule the meeting for Wednesday, October 11.

BOB & MAUREEN WILSON 166 Laurel Hill Rd.

Bl. 55, Lot 17 Appl. #06-498

ILC, front RAA zone

Architect Seth Leeb described the variances. The existing frontyard setback is 63.3 feet. They propose a two story addition on the left side, with a front setback of 83.8’ which is back from the front of the existing structure. The front yard exception requires 87.2 feet. Existing lot coverage is 21.23%, this plan will reduce ILC to 21.06%. Leeb marked an eight photo board as Exhibit A2. The house will conform to all other bulk requirements. A substantial amount of driveway and a concrete patio will be eliminated to reduce coverage. The closest neighbor is 58’ from the covered canopy. Leeb explained that the basement is not included in floor area because it does not count as a story under our zoning regulations.

There were no public questions. Jim Moody moved to approve the application, seconded by Chris Sullivan. Arthur Max questioned whether 750 square feet was being added while coverage is being reduced. Attorney Sullivan noted that we typically require a post-construction ILC plan to document the final coverage. We could approve it based on the condition that the other coverage is removed. The motion for approval with that condition was carried by 7-0 roll call vote.

DOUGLAS WALLER 351 Morris Ave.

Bl. 103, Lot 1 Appl. #06-494

Front RA zone

Waller said his family has lived here for 12 years and wants to expand their house. He can not avoid a variance for the front setback because the front yard exception requires 51.5 feet and they are seeking 37 feet, the closest point of new construction. The existing setback ranges from 47.5 to 22.3 feet. There will be no changes within the existing area of nonconformity. If he were to average the neighbors on either side, he would be close to conformity. Architect Eric Baker – the hardship is a nonconforming lot. There is no other location to accommodate the addition.

No public or Board comments. David Kane made the motion for approval, seconded by Jim Moody and carried by 7-0 roll call vote.

Carried to November 2:

DAVID WINTERS 11 Point View Place

Bl. 100.02, Lot 86 Appl. #06-483

FAR, ILC, front & shoreline RA zone

Chris Sullivan made the motion to carry the application to November 2, seconded by David Kane and carried by voice vote.

Other Matters / Public Comment:

Attorney Sullivan reviewed the question regarding the front yard variance granted to the Bechts in June. The approval did not include the front stairs, landing and retaining walls. The resolution did not include the correct front variance but the walls were included in the plan. We could make them come back or we could revise the resolution. There is inconsistency regarding the measurements allowed in retaining walls (3 feet maximum by Hagberg, whereas our ordinances exclude retaining walls). This Board limited the Becht walls to four feet. We approved 78.2 feet to the building line. Arthur Max said he would like to see the plan again. The frontyard exception requires a 92 foot setback. Jill Gotthelf suggested that the resolution be revised to have the 78.2 foot setback apply to the entrance but we are allowing the walls to be constructed in front of that. Jill Gotthelf moved to recommend that the ordinances be clarified, David Kane seconded the motion, carried by voice vote. Regarding maximum height of retaining walls, Attorney Sullivan will work with Marge Jackson to compose a letter to Council.

Sullivan will prepare an amended resolution for the Becht variances to be adopted next month.

From the public: Fred Kanter, 81 Hanover Road, said that he was impressed with the knowledge and dedication of the Board members. He thanked the Board for adopting rules allowing for public comment even though they are not required to have a public session. He said he came here to discuss a disorderly persons charge. He will speak for as long as he wishes and knowingly violate the five minute rule. He is well aware that he is subject to arrest. He has accused members of the Borough government. He said that one characteristic of fascists is that they prevent free speech. You do not have a concept of democracy. I have rights and responsibilities as a citizen. My responsibility is that, if I see wrongdoing, counter to the interests of democracy and I don’t do anything about it, I cannot sleep at night. What went on here was totalitarian, dictatorial and fascist. He asked, in the future, to have the draft minutes here for the public to review. He is substantially increasing his suit from the previous $22 million. He asked for an apology and resignation from Mr. Richter. Kanter said he is not subject to being sworn in because he was offering his opinion and was `not subject to perjury. He has to take risks to protect the public. The judge convicted him under an ordinance that had been repealed.

Since you did not have rules during reorganization in January, everything you have done has been illegal and is subject to challenge. When he is found innocent he will ask this Board to recompense him. The Chairman had no authority to take the floor back from me because he had no authority. I will not put up with official misconduct which is rampant in this town.

Attorney Sullivan will check into whether we have to provide draft minutes prior to approval. Kanter asked that we move the public comment to the beginning so that all the public can hear the comments. Having comments at the end is detrimental to the interests of democracy.

Jim Moody said this Board is trying to operate with common sense. If there is a large public session at the beginning consuming a lot of time, all the applicants will be inconvenienced; applicants at the end of the agenda may not be heard because we do not begin a new hearing after 10:30 p.m. Moody said that we have to be practical and go with what makes common sense.

The meeting was adjourned at 9:50 p.m.

Respectfully submitted,

Marge Jackson, Secretary