MINUTES OF A REGULAR MEETING

OF THE PLANNING BOARD OF THE BOROUGH OF MOUNTAIN LAKES

July 26, 2007

 

Chairman Mike Lightner read the Open Public Meeting Advertisement Notice:  Adequate notice of this meeting was given to the Citizen and the Daily Record, was posted with the Borough Clerk and the Bulletin Board, and made available to all those requesting individual notice and paying the required fee. 

 

ROLL CALL:

Members Present:  Nix, Selver (arr. 7:45), Melikian, Dunn, Webb, Shaw, Palmer, Lightner              Absent:  Pitcher, Batty, Davis       

Also Present:  Attorney Peter Henry

 

REVIEW OF MINUTES:  The June 28 minutes were approved by voice vote

 

PUBLIC HEARINGS:

      Carried from June 28:

DANIEL FERRANTE             Bl. 99, Lots 1 & 6

2 Esplanade, 248 Morris                      Appl. #07-231

Major subdivision                                 RA zone

Frank Dunn stepped down for this hearing. 

Attorney Kurnos reviewed that the Board had asked for a title search.  He reviewed his findings, outlined in his July 16 letter.  The creators of Mountain Lakes intended for this to be open space.  There was also discussion about the frontage requirements.  The NJ Statute, Water Supply Code of 1966 has been repealed.  Title 58-12A addresses safe water, section 58-1216 addresses homeowners with wells.  He could not find anything in this Borough’s code that requires regulations for subdivisions regarding Board of Health approval.  The Borough does not have firm capacity.  Kurnos summarized that water allocation is not an issue.  

Barbara Palmer read from Ordinance 208-11; she interpreted that the local Board of Health would need to approve any private wells. 

Attorney Henry – Bill Ryden’s interpretation was that we should not approve lots that are not buildable, but we could impose conditions that construction would not proceed until there was potable water; this is not an issue until the developer is ready to build.  It could be a condition of acquiring a C.O.  Lightner said if we were to approve a subdivision with a condition of water supply, we would need a well or other water supply.

Steve Shaw – individual wells need to be permitted by the State.  Some municipalities require installation of a well to perfect a subdivision.  Henry – at this point, you do not have an ordinance requiring hookup to the water system.

Lightner – to what extent does the water availability impact our ability to rule on this subdivision; hypothetically, if the two new lots would require significant variances, would that be a basis to deny the subdivision?  Should we not grant the subdivision until the water issue is resolved?  Henry – until we have an interpretation from Bill Ryden, that is not a basis for granting or denying the application.

Attorney Kurnos said that, practically speaking, no bank would grant financing unless there was water availability; the burden would be on the applicant to provide water to the two new homes; that is, you cannot create a house on a lot that does not have a water supply.

Lightner – we could impose a condition that a water supply would be established prior to construction.  Kurnos – that is correct, you could not get a building permit until you had a water supply.  At this point, we are looking for preliminary, not final subdivision approval.  Henry said that Ryden had also asked for a hydrant at the end of the Esplanade.  Shaw – I have no problem moving forward as long as approval is conditioned on a water supply.  Palmer – can you require a private well and later require hook-up to the Borough water supply?

Marc Walker – based on the last meeting, we have revised plans dated 7/12/07.  He discussed the tax map, where the road in front of the Esplanade is clearly stated as the Elm Road Extension.  The title search also listed it as the Elm Road Extension.  Walker showed that the steep slopes are an issue only on sheet 4 of 7; he said that the 40 foot buffer would protect the majority of the steep slopes.

With respect to Esplanade, Walker referred to the RSIS clarification that the requirements would not be applied to roads developed prior to 6/03/97, i.e. the existing road does not have to be modified, it is consistent with the development pattern throughout the town.  The creation of the cul-de-sac does not apply to the standards since it would not generate the minimal 250 daily trips.  The Esplanade is already a cul-de-sac even though it does not currently have a bulb.  We propose a 30 foot wide radius cul-de-sac bulb at the end of the Esplanade.  Exhibit A7 was a blow-up of the building box shown at last month’s meeting with the insertion of a cul-de-sac bulb at the end of the Esplanade.  This would be classified as a minor development under the RSIS standards.  Henry asked if this satisfied concerns about parking or turning around in that area.  Borough Manager Gary Webb said yes, it would be sufficient.  Palmer asked if this would accommodate an emergency vehicle.  Walker said an ambulance could turn around; a fire truck could drive down the Esplanade and then would need to back out.  We meet the requirements for accessibility to the fire hydrants; he said a hydrant would be installed at the end of Esplanade.

Walker referenced the ordinance requiring a 50 foot frontage on a cul-de-sac, with 100 feet at the beginning of the building envelope line. 

Palmer pointed out that some of the trees on the plan were identified as pines but they are all oaks.  Walker said that all those trees will be preserved.

Lightner asked why it is necessary to remove the trees on lot 6.01; Walker – we can preserve as many as possible, it could be a safety issue if the roots are damaged.  Shaw noted that trees within the building envelope may be removed without special permission.  Palmer said that the large stand of trees would be of the greatest concern because they are in an area of steep slopes.  Lightner said that lot is of the most concern; Walker replied that they could consider saving more trees by moving the house so it would not impact the trees.  Attorney Henry said you could require a reduced envelope for that lot to achieve your desire to save the trees.

Barbara Palmer pointed out that the plan shows the top of the wall at 460 feet; the basement would be 45 feet back at 471 feet; that is a sharp increase in height.  Palmer thinks they need a variance for the building envelope and steep slopes.  Henry, you have an ordinance to prevent reshaping of the slopes; if you don’t exceed the minor soil moving limit, it is not an issue.

Walker – to protect the trees in question, we offer to move the back of the house forward 10 feet.  Henry suggested that the building envelope be reduced to protect the trees from future owners’ removal of the trees in question. 

Lightner – we are looking for a way to maintain the integrity of that space, including the trees, the slopes and fitting a house on that property.  If the proposed house were even to the existing neighboring house, it would be 25 feet from the park and 58 feet from the Esplanade right-of-way.  Kurnos said we could reduce the rear of the building envelope by 10 feet and not ask for a front variance.  That would protect the trees outside the revised building envelope. 

Lightner repeated that he is concerned about preserving as many trees as possible on that corner lot; we need to rely on the building inspector.  Gary Webb recommended that we impose a condition that the Borough Arborist should supervise this particular project; that could include feeding and protection of the root system.  There are different techniques that could be used to protect the trees.  Paul Selver asked if we should consult with the arborist and come back with his recommendations prior to approval.  Kurnos said they are willing to abide by the reasonable decision of the arborist after the well is dug and we are in the process of getting a permit.  Lightner expressed concern over whether the arborist’s views would be reasonable.  Steve Shaw pointed out that he has lost three large trees on his property in the past few years through no one’s fault; they were not disturbed by construction.

Selver asked Peter Henry, if we approve the subdivision on this lot and the arborist comes back and says we should not build a house, are we subject to inverse condemnation?  Henry – the applicant could say that is not a reasonable condition. 

Barbara Palmer asked about the existing asphalt lip on the other side of the Esplanade. Walker said that it captures the drainage on that side of the street. 

   

Comments from the public:

Piers Murray, 1 Esplanade:  we have resided there with our 3 children since 1999.  We chose to return to this area.  We strongly oppose the Ferrante’s application because of safety concerns for children and residents wishing to enjoy the park-like setting of the Esplanade.  There is the precedent of previous requests for a subdivision across the street in 1998.  Menard chose to add one new house and not demolish the existing house to build three new houses.    In consideration of the conceptual redevelopment of the Midvale Market area, we request that the Board reject this proposal.  A proposal that does not require variances should be considered.

 

Michael Buckley, resident at 255 Morris Avenue since 2001, repeated the concerns of Murray regarding the noise and increased traffic.  We ask that the Board only consider development  with no variances.

 

Betsy Broome, 251 Morris Ave., across the street from the proposed subdivision, has lived here for 11 years.  She asked for rejection based on the precedence established in 1998 with Tom Menard.  She asked that the Board follow that precedent.  Ferrante should proceed with a plan without variances.  Broome cited a NY Times article from 7/22 noting that the noise level in the suburbs has exceeded the recommended volume.  Adding two hew homes to this area would increase the traffic and noise associated with commuters and landscape equipment.

 

Jack Gentul, 249 Morris Avenue, reflected on how much the people of this town value the quality of life in Mountain Lakes.  There does not seem to be any benefit to the town to pack two more homes into this neighborhood.  You have the ability to stop this, you must stop it because this is our neighborhood; you should not value a short term profit over our quality of life.  Do not grant any variances; we don’t want you to grant variances that will encourage the destruction of our lifestyle.

 

Prem Pungaliya, 241 Morris Ave. This is the heart of our town; if you watch how the children travel through this area, you would know that this would not enhance but would take away from our neighborhood.

 

Applicant Dr. Daniel Ferrante was sworn in.  He testified that he has lived in Mtn. Lakes for 37 years and has lived in four different Hapgood homes.  They have three children and they love this community.  He said that profit is not his incentive in this project.  The profit is in tearing down the Hapgoods.  They were approached by the Bose family who said that they had a legally subdividable lot and had approached local builders.  Ferrante was looking at having a house built behind his home and looming over the market.  They thought that plan would not be in character with the town, so they hired Engineer Marc Walker to look at their options.  Walker presented options, three of which included destruction of one or two of the existing Hapgoods.  Those options would have been easier and more profitable than this proposal.  This option prevents a house from being built behind their house, where they plan to live for the next thirty years.  Several of the trees are dying and present a danger to their own home.  A variance free solution would be to demolish both the existing Hapgoods.  Ferrante said he was not doing this to make a profit, he makes money delivering babies.  We did not want to make the most money possible; this plan is not the most profitable.  The congestion on our street is from the large landscaping trucks.  We are doing everything we can to preserve the two Hapgoods, not to make the optimum profit.

Ferrante pointed to the Exhibit showing the extent of the requested variances, both in small corners of the building envelopes.  100 square feet is requested on lot 1.01;

Selver said that the initial proposal would have added one house, now you are proposing two new houses.

 

Nix asked if it were possible to add only one house, on the corner, and not add the fourth house at the bottom of the Esplanade.

 

Comments from the public:

Piers Murray – many houses are moved; subdivision into three rather than four lots is an alternative.

Buckley - this is about making money but we have serious concerns about this development.

Jack Gentul – if this is a sincere effort to preserve the area, there is a solution other than building two new houses.  If you are sincere, why can’t you work out a different plan? The public portion of the hearing was closed.

 

Attorney Kurnos – what is before the Board is the four lot subdivision plan.  We are only looking for two minor variances at the corners of two of the lots.  These are very small variances.  Dr. Ferrante went out of his way to offer a conservation easement; if we go to court, the conservation easement is off the table.

 

Board discussion:  Steve Shaw – I take my responsibility on the Planning Board very seriously.  If there were an application without variances, we could not deny it.  Shaw referenced 245-C.  The two building envelope issues are deminimis; 132 square feet on one lot and 200 square feet on the other are minor considering the size of the proposed lots.  Looking at a 2 ½ acre tract, the density would be consistent with the zoning and would not be a detriment to the neighborhood.  Considering all this, I don’t see justification to deny the subdivision.

Lightner – I am in total sympathy with the residents of the neighborhood.  I have been on the Planning Board for 10 years.  The ordinances have not changed so we have had applications resulting in beautiful Hapgoods being torn down.  I have strived to minimize the opportunity for demolition.  The Board has been successful in compromising with property owners who have had the right to subdivide if they demolished the Hapgoods but they chose not to.  These variances are so minor that that there is not sufficient basis to deny the application.  We have to do what is legally supportable.

Palmer – this is a beautiful piece of property; the way the houses and garages sit on this property is the way Herbert Hapgood envisioned Mountain Lakes.  I would be much more comfortable approving only one additional house.  I am still not comfortable that this proposal does not violate the Master Plan regarding the right-of-way.  I believe the lot at the corner is acceptable although it would destroy many mature trees.  I still have a problem with the proposed house on Lot 6.01.

Attorney Henry – it is not clear whether the language on the filed map was for public purposes.  I don’t know whether the official map of the park side of 6.01 is a public portion of the road.  Palmer noted the reference to right-of-ways in the Master Plan.  Henry said that does not designate it as a road. 

Selver – we often find ourselves in this situation where we are trying to save a Hapgood; these are not necessarily minor variances because the properties are irregular.  From the public welfare, it is difficult to say the variances shouldn’t be granted because the trade-off is preserving the Hapgoods.

Shaw – I don’t see this as a high density development.  There are large open spaces that make the community beautiful.  More than 90% of the original housing stock still exists here in town.

Gary Webb – I’ve seen many subdivisions in this business over the years; the reality is that if you follow our zoning, with the exception of the minor variances, this complies. 

The configuration of building envelopes has been tried in the courts and Planning Board denials have been overturned.  This application troubles me but I know it meets our zoning regulations.

Armen Melikian – we would all like to see something different, we would have preferred three lots, but we can not address the financial issues. 

Joan Nix – I agree with everyone else but this is frustrating.  It doesn’t meet the building envelopes but it may not be defensible in court; the alternative proposal would have two lots on Midvale.  I worry about the height of the new house from Midvale.

Lightner – if the Master Plan were changed, that would create hundreds of nonconforming houses.

Selver – you can provide special considerations for nonconforming buildings.

 

Steve Shaw moved to approve the application with conditions:  applicant comply with Ryden’s 3/22 review letter and the MCSD review; extending the water main and provide a fire hydrant; service new dwellings with potable water and requirement that homes hook-up to the municipal system; increase the south side setback of lot 6.01 by 10 feet; the arborist should be consulted during permit application process for 6.01 regarding trees on the southern side of the property, consulted for reasonable conditions to preserve as many trees as possible.  Peter Henry suggested additional conditions:  existing dwellings retained with the exception of removals proposed; sewer easement with appropriate conditions; all taxes and fees must be current; construction on the new lots be compatible with the craftsman style; plot plans include sufficient dry well capacity; road dedication for the Esplanade. 

Joan Nix asked how long the existing dwellings must be retained.  Henry said the owner would have to return to this Board to demolish those structures.  Gary Webb suggested that the conservation easement include prohibition of dumping leaves and brush in that area.

The motion was seconded by Gary Webb.  Paul Selver was absent from the previous hearing on this application so he was not eligible to vote.  The subdivision application was approved by 5-1 roll call vote (Palmer denied.)

 

COMMITTEE REPORTS:  none

 

OTHER MATTERS & PUBLIC COMMENTS:

There is no pending business for the regularly scheduled meeting on August 23.  If no complete applications are filed, the meeting will be cancelled.

 

Mike Lightner thanked Rob Pitcher for many years of service and wished him well in his retirement and move to Maryland.

Steve Shaw asked for input and suggestions of candidates for appointment to the Board.

Armen Melikian said he would be leaving the Environmental Commission at the end of the year.  He will consider whether he wants to stay on the Planning Board as a Class IV member.

 

The meeting was adjourned at 10:30 p.m.

 

                                                                                    Respectfully submitted,

 

 

 

 

                                                                                    Marge Jackson, Secretary