REGULAR MEETING
Municipal Bldg
530 West Hill Road Glen
The Lebanon Township Board of
Adjustment was called to order at 7:32 p.m. by Vice Chairman Abe
Abuchowski. Present were: Mr. Kozlowski, Mr. MacQueen, Mr. Nagie, Mr.
Eberle, 1st Alternate Machauer, 2nd Alternate Maurizio,
Attorney Gallina, Planner Bolan and Engr. Ted Bayer. Also present:
In compliance with the “Open
Public Meetings Act” notice is hereby given that the Lebanon Township Board of
Adjustment has scheduled a Special Meeting on April 8, 2010 at 7:30 p.m. to
hear the continuation of the application of Michael & Fran Edwards. The meeting will be held in the Main Meeting
Room in the
PRESENTATION OF MINUTES:
March 24, 2010 Regular
Meeting
Motion by Mr. Kozlowski and
seconded by Mr. Maurizio to approve the minutes with minor correction. Unanimously approved by those eligible to
vote.
March 24, 2010 Executive Session
Motion by Mr. Maurizio and
seconded by Mr. MacQueen to approve the minutes as presented. Unanimously approved by those eligible to
vote.
UNFINISHED BUSINESS:
Michael & Fran Edwards Block #37
Off Road Welding Little
417 Little
Glen Gardner, N.J. 08826
CONTINUATION OF A PUBLIC HEARING Conditional
Use for a Commercial Use
in a residential zone
Attorney Gallina noted that
after the last meeting the board members made a request to have access to the objector’s
properties for a site visit. Attorney
Gallina suggested opening the public hearing again to allow the board members
to comment on their site visit. Motion
by Mr. MacQueen and seconded by Mr. Nagie to reopen the public hearing at this
time. Unanimously approved.
Vice Chairman Abuchowski
asked the board for those who visited the site if they have any comments to
make. Mr. Nagie said he visited the
Edwards property on August 13, 2009 and found everything to be in place, the acetylene
tanks were enclosed, building that was referred to on the Lavezzi property was
not there and Mr. Edwards was inside welding.
Mr. Nagie said he did not smell diesel fuel and it was a damp wet
day. Mr. Nagie said he was on site for
20 minutes and talked to Mr. Edwards.
Mr. Nagie said he went up on Backhus Estates Road but did not smell any
diesel fuel and wanted to know how you tell the difference between the smell of
diesel fuel and home heating oil. Mr.
Nagie said on March 31st he went and did a site walk on the Columbro
and Marino properties that border the Edwards property. He, Mr. Eberle and Mr. Machauer had been
invited that morning. Mr. Nagie said
that Mrs. Columbro was complaining about noise.
Mr. Nagie said he heard the clang of one piece of steel and that was
it. Mr. Eberle stated he also
participated in the site walk on the Columbro property on March 31st. Mr. Eberle said there was no work going on
when he was at the Edwards and when he walked up to the berm, he could see the
houses thru the woods but they were not overly visible. Mr. Eberle said when he participated in the
site walk on the Columbro property, he did hear a leaf blower and a fork
lift. Mr. Machauer said while they were
listening to the tapes from the March 24th meeting, Ms. Glashoff
said she received a phone call from Mrs. Columbro asking if some of the board
members could come over now. Mr.
Machauer said he concurred with Mr. Nagie and Mr. Eberle that he could not
heard any appreciable noise. There was
no odor detected. The only noise they
heard was a garbage truck on the road.
Mr. Maurizio said on Thursday
April 1st, he and Mr. Kozlowski went to the Columbro property. They walked around and Mrs. Columbro gave
them a tour. Mrs. Columbro took them
down to the property line. They saw a
travel trailer and a truck came in with a delivery. Mr. Maurizio
April 8, 2010
Page 2
asked Mrs. Columbro what type
of heat she had and her response was oil heat.
Mr. Maurizio said that home heating fuel is #2 fuel like diesel fuel. Also, since the Edwards had planted trees along
their property line it might not be a bad idea for the neighboring houses to
plant some trees on their property which would create a double buffer. Mr. Kozlowski stated he went with Mr. Maurizio
on April 1st to the Columbro property. They walked back to the border of the two
properties. They went back up to the
Marino property to view from his deck.
While they were on the deck a truck pulled in to the Edwards which was a
diesel truck turning around. But the
noise level was not that loud. Mr. Kozlowski
said since he went to the Columbro property and thought he should also go to
the Edwards property which he did on Monday April 5th and was surprised of all the stuff there that
you can not see from the Columbro property.
Mr. Kozlowski said that the light in question is no longer there.
Mr. MacQueen stated that he
went to the Columbro property on Saturday April 3rd. Mr. MacQueen said he never did make it to the
Edwards property. Mr. MacQueen did note
that he had been on the Edwards property many years ago when Mr. Winters owned
the property that had construction equipment.
While on the Columbro property they walked down to where the berms and
trees are. There was no noise because no
one was around. The Edwards were home
but there was no activity. At the
conclusion of the board’s comments on the site visit, Vice Chairman Abuchowski
asked if there were any questions by the attorneys. Attorney Gruenberg did not have any questions
of the board. Attorney Lavery stated
that he did not feel there was a need for the attorneys to visit both the
sites. When open to the public for questions of the board, there were
none. Vice Chairman Abuchowski then
opened the hearing to the public for comments.
A resident who lives at 419 Little Brook Road said she doesn’t see or
hear anything from the Edwards property.
At this time, Planner Bolan
was sworn in to give testimony on behalf of the board. Planner Bolan stated he had done a report
about a year ago in 2009 and it will be the focus of what he will say in his
testimony. Regarding the criteria, the
board should be considering in this variance and what the case law that is
operable for Conditional Use that was said about those criteria’s. It is a little different than your typical
Use Variance. Planner Bolan said he had
attended the meetings that Engineer Chmielak testified on April 22nd
and June 10th. Planner Bolan
said that he did not attend the meeting on September 23rd but read
the transcript where Planner Zimmerman testified for the objectors. He also reviewed the report that was
submitted by Engineer Chmielak on December
3, 2008 along with a supplemental
report on April 22, 2009 that was submitted.
Planner Bolan said the variances that the board is considering, the
deviations from the Conditional Use standards.
One is the outside storage materials, two is the number of non-resident
employees and last from an amendment to the Home Occupation Ordinance from last
October 22nd is an absolute
size of the accessory or principal building that can be used for the Home
Occupation. The square footage per the
ordinance is 2000 square feet and the applicant’s building is 2150 square feet
which exceeds the square footage in the ordinance. There is a Supreme Court decision that
differentiated a Use Variance from Conditional Use standards from the more
typical use variance of a use that is not permitted in the zone. The primary things that came out of that
decision, it is the focus of the board should be on specific deviations from
the conditional use standards. It is up
to the board to find special reasons to support the variance only if it is
persuaded that the non-compliance with conditions does not affect the
suitability of site for the conditional use.
The conditional use variance applicant must show that the site will
accommodate the problems associated with the use even though the proposal does
not comply with the conditions the ordinance established to address
problems. The three items are: outside
storage, size of the building and the number of non-resident employees. The applicant has to demonstrate that the
site continues to be appropriate and suitable despite the failure to conform to
those conditions.
It does not require the D1, Use
Variance, it requires a particular suitability determination that the site is
particularly suited because the use is permitted and the deviations are only
related to the conditions. That is the
positive criteria for the use variance.
Under the negative criteria which is the second prong that there should
be no substantial detriment to the public good or substantial impairment of the
intent and purpose of the zoning plan and zoning ordinance. The Court said the focus is on the affect on surrounding
properties in order to grant the variance for the specific deviations from the
conditions imposed by ordinance. The
board must be satisfied the granting
of a conditional use variance
for the specific project at the designated site is reconcilable with the
municipality legislative determination that the condition imposed on all
conditional uses in that zoning district.
There is a standard in the ordinance regarding nuisance. There are specific standards in the ordinance
relating to nuisance elements and none have been shown to be in violation of
the standards in the ordinance.
Regarding
April 8, 2010
Page 3
emphasized that the board has
to reconcile the granting of this variance with legislative with those
variances from the conditional use standards.
With the legislative determination, the
standards should be imposed
and must focus on affect on the surrounding properties for the specific
deviations being requested. The board
should look at whether there are conditions they can imposed in their approval
to insure that the deviations from the conditional use requirements do not
cause substantial detriment to the public good or substantial impairment to the
intent and purpose of the zoning ordinance.
Planner Bolan said if the board gets to the point of making a motion,
you may want to consider conditions that relate to the variance running with
the land. Planner Bolan said that from
testimony that 90% of the work perform is not on site but done elsewhere. Also, to consider hours of operation is
difficult because of the possible emergency aspect of these operations or some
of the functions of the purposed use. In
a residential zone the board can decide what would be appropriate hours of
operation and the lighting. Planner
Bolan noted that when the Planning Board was working on the lighting ordinance,
residential zones were excluded because it was a difficult issue to deal
with. At the conclusion of Planner
Bolan’s testimony, the board had questions of the Planner.
At the conclusion of the
board questions, Engineer Ted Bayer was sworn in to give testimony. Engineer Bayer informed the board that he
and Engineer Risse went to the Edwards property to do a site inspection on
March 26th. The purpose of
the visit was to familiarize himself with the site and to compare the
conditions of the site with what is on the site plan. Engineer Bayer said he wanted to identify the
berms, the screening, lighting and to make sure the site plan was accurate. They found that the berms and the screening
are in place. They did not see the light
fixture which was shown on the plan and shown on the barn. At conclusion of Engineer Bayer’s testimony,
the board had questions. Mr. Kozlowski
asked about the pipe underneath the driveway.
Engineer Bayer said the pipe is clearly visible as you drive up the
driveway. The pipe and concrete is well
within the Edwards property. Mr.
MacQueen asked about the drainage. Engineer
Bayer said the drainage pattern is from right to left or west to east, across
the property and towards the northeast corner of the Edwards property. The pipe was put in to enhance the natural
drainage course and flows off the Edwards property to an area to the east. Mr. Machauer asked if this was the course of
the drainage and was it mutually beneficial to both property owners meaning the
Edwards and Lavezzis. Engineer Bayer
said yes. Mr. MacQueen asked how long
the pipe has been there. Engineer Bayer
said many seasons. Mr. MacQueen then
asked about the concrete and if it could have been laid at a later date. Engineer Bayer said it could have been but he
saw no evidence that there had been any repaving of the blacktop.
Vice Chairman Abuchowski
opened the hearing to the public for questions. Planner Bolan asked if the pipe
in question is the same one on the plan.
Engineer Bayer said yes. There
were no questions from the public. After
a brief discussion, Vice Chairman Abuchowski announced that the board will take
a recess at this time, 8:20 p.m.
When the board reconvened at
8:32 p.m., Attorney Lavery for the objectors gave his summation. Attorney Lavery referred to case law on home
occupations. One is
Attorney Lavery said the
applicant testified that he has a 175 ton break press. Mr. Edward’s has testified that he uses 100%
of the accessory building. Attorney
Lavery referred to testimony from April 22, 2009. Mr. Edwards testified that he has a 3 bay
garage, one bay for an office, one has a car lift and the other is open with
several drill presses, two wire feeder welders, tig
machine and a 175 ton break press.
Attorney Lavery also referred to other sections of the transcript from
April
April 8, 2010
Page 4
22nd. He then referred to the amended Home
Occupation Ordinance adopted on October 21, 2009 and the standards that apply
and the applicant still does not meet those standards. Attorney
Lavery referred to the notice
problem which was raised by one of the board’s professionals. Besides putting in the notice for those
variances needed, an additional variance was also needed. In Lacey vs Pearl-Mark
it states that isn’t acceptable, you have to re-notice. Attorney Lavery noted the applicant’s property
is undersized for the zone it is in which is RC 7˝, and it does have some
impact on whether variances should be granted.
RC stands for Resource Conservation Zone. The
RC zone is there to create larger lots to promote open space and to allow a
welding shop in the middle of a residential neighborhood is not promoting open
space. Attorney Lavery said the board
should go back to the Master Plan and ordinances to see what should be in the
RC zone. This business is not a Home
Occupation. Attorney Lavery spoke on the
noise and nuisance element and even though members of the board went out for a
site inspection lasting up to 45 minutes, his clients have to live with this
everyday. They all purchased homes in a residential
zone and all the homes around them are residential lots. It’s not like they moved to an industrial
zone and moved next to a business. The
applicant has been working outside of the garage; they have steel stacked up,
forklift, acetylene tanks and employees on site. If the board approves this application,
there will be a business bigger then the house operating off of that
property. It will allow two principal
uses on the lot. Attorney Lavery noted
that the Zoning Officer had submitted a report to the board and during
testimony of their Planner, he tried to enter some of the information from the
report into evidence and was unable and had to make an OPRA request from the
Township. Attorney Lavery said he was
entitled to comment on the report and.
said when he asked to have the Zoning Officer subpoenaed, the board
ignored him. Attorney Lavery briefly
went over the points he made in his summation and at the conclusion of his
summation, Attorney Gallina had Attorney Gruenberg give his summation on behalf
of the applicant.
Attorney Gruenberg thanked
the board for all time spent on this application over the past year. He noted the board took the time to go to the
applicant’s property and the objectors property on their own time. Attorney Gruenberg said they presented expert
testimony from the Engineer, Planner, Noise Expert and studies. The objectors did not present any noise
studies, or engineering testimony. Attorney
Gruenberg said their Planner and the board’s Planner agree on what the standard
is and that this is a Conditional Use variance case. The application is not a Use Variance
application like the objectors say. The
ordinance allows for conditional use which is a permitted use subject to
conditions. This is what the applicant
has been operating on their property since 1998. The applicant did not get approval back in
1998 but are asking for it now since the issue has been raised. There are a lot of people in the Township in
the same situation. Attorney Gruenberg
noted there are 3 standards that they have applied for. The Township last fall changed the Home
Occupation Ordinance which makes the applicants’ home occupation and use of the
property more conforming. Attorney
Gruenberg reviewed for the board the Home Occupation Ordinance. They are in a permitted accessory building
with some small outside storage area.
The ordinance now reads that you can not occupy more than 2000 square
feet. The existing building is 2150
square feet. The standard for
non-resident employees states no more than 2.
The applicant is asking for one additional non-resident employee. Attorney Gruenberg stated they presented
detailed engineering testimony from Mr. Chmielak and detailed planning
testimony from Mr. Chmielak as to the conditional use standards and how this is
still despite these deviations this is still an appropriate use pursuant to the
ordinances. Attorney Gruenberg referred
to the testimony of Planner Zimmerman which he stated this application was a
Use Variance because the size of the building was 2150 square feet instead of
2000 square feet by ordinance. Attorney
Gruenberg pointed out that Planner Zimmerman did not know that the Township is
in the Highlands Preservation area and that there is a house on the neighbor’s
property since he had referred to it as a vacant lot. Mr. Chmielak
went thru each on of those standards in a detailed nature and not withstanding
these minimal deviations from the Conditional Use Ordinance, the applicant’s
property remains appropriate for this type of use. Attorney Gruenberg said he is willing to
discuss any conditions the board will want.
Attorney Gruenberg said the Edwards have tried to make the neighbors
happy. The detailed landscaping, moving
items inside, shielding the light, then taking the light down.
Attorney Gruenberg stated
that
April 8, 2010
Page 5
time and in today’s economy to
prohibit them from being able to make a living for the way they have done could
have a devastating impact on their family.
The Edwards are asking for the board to grant these minimal deviations
and approve the 3 variances as well as site plan approval.
At this time, Vice Chairman
Abuchowski asked for a motion to close the public hearing. Motion by Mr. MacQueen and seconded by Mr.
Nagie to close the public portion of the hearing. Unanimously approved.
The board deliberated at
length with each member giving their reasons for either an approval or denial. During their discussion, they all agreed that
this use was a home occupation and permitted in a residential zone with
conditions. At the conclusion of the
board’s discussion, motion by Mr. Kozlowski and seconded by Mr. Nagie to grant
the 3 variances which were for outside storage, allow one additional
non-resident employee to 3 employees and to grant the 150 square feet which
exceeds the 2000 square feet allowed by ordinance with the following
conditions:
a. Applicant will comply with Ordinance Section
400-43d regarding lighting.
b. Shop hours will be from 7:00 a. m. to 4:30
p.m. Monday through Friday and
closed on weekends with the work being
conducted inside the shop. This
does not pertain to work done off site.
c. Outside storage will be limited to the
storage area as indicated on the site plan.
(Exhibit A10)
d. Applicant will obtain approval from any
outside agencies having jurisdiction.
e. Necessary permits, if any, are to be obtained
with 18 months.
ROLL CALL Yes:
Mr. Machauer Mr. Abuchowski Absent: Mr. Terzuolo
Mr. Maurizio Mr. Nagie Mr.
Perry
Mr. Kozlowski Mr. Eberle
Mr. MacQueen
Attorney Gallina will prepare the resolution to be on
the agenda of May 26, 2010.
PRESENTATION OF BILLS:
a. John Gallina, Esq. $143.75 – Escrow (Edwards)
$201.25
- Attend Bd Mtg 3/24/10
Phone Conf. w/Bd Sec & Zoning Officer
b. Court Stenographer $200.00 – Attend Mtg 4/8/2010
Total: $545.00
Motion by Mr. MacQueen and
seconded by Mr. Eberle to approve the bills as presented.
Unanimously approved.
CORRESPONDENCE:
a. Ltr. From Attorney Gallina to Attorney Lavery
b. Home Occupation Ordinance 2009-08 adopted 10/21/2009
c. Memo from Engr. Risse
Being no further business to
come before the board, nor comments from the public, motion by Mr. MacQueen and
seconded by Mr. Nagie to adjourn the meeting at 9:50 p.m. Unanimously approved.
__________________________________________
VICE CHAIRMAN ABE
ABUCHOWSKI
______________________________________________
GAIL W. GLASHOFF, BOARD SECRETARY