REGULAR MEETING
Municipal Bldg
530 West Hill Road Glen
The Regular Meeting of the
Lebanon Township Board of Adjustment was called to order at 7:40 p.m. by Board
Secretary Ms. Glashoff. Present
were: Mr. Machauer, Mr. Kozlowski, Mr.
MacQueen, Mr. Perry, Mr. Nagie, 1st Alternate Eberle, 2nd
Alternate Maurizio, Attorney Gallina and Planner Bolan. Excused: Mr. Terzuolo, Mr. Abuchowski and Engr. Risse.
Notice of this meeting was
noticed in the “Annual Meeting Notice Schedule” adopted by this board on
January 28, 2009, mailed to the Hunterdon Review, Hunterdon County Democrat,
Express Times, Courier News, Star Ledger and posted on the bulletin board in
the
NOMINATION FOR CHAIRMAN:
Ms. Glashoff informed the
board that in the absence of the Chairman and Vice Chairman this evening the
board will need to nominate a Chairman.
At this time, Ms. Glashoff asked for nominations for Chairman. Motion by Mr. Perry and seconded by Mr.
Kozlowski to nominate Gary MacQueen to serve as Chairman. Being no further nominations for Chairman,
nominations are now closed. Unanimously
approved.
PRESENTATION OF MINUTES: July
8, 2009 Regular Meeting
Ms. Glashoff informed the
board that the minutes from the July 8th meeting are a draft for the
board to have for the continuation this evening. The minutes will formally be on the agenda
for the August 12, 2009 meeting for approval.
UNFINISHED BUSINESS:
Transtar Autobody & Truck
Inc. Block #41
c/o Dominick Tranquilli Route
513 I5
514 Route 513
CONTINUATION OF A PUBLIC HEARING Site
Plan and Use Variance for Self
Storage
Units
Ms. Glashoff noted that Mr. Nagie is stepping down
from the proceedings since he has not listened to the tapes from the prior
hearings. Attorney Gilbert interjected
and requested that Mr. Nagie not step down but if this hearing doesn’t conclude
this evening, Mr. Nagie will have the opportunity to listen to the prior
tapes. Attorney Gallina announced to the
public that Mr. Nagie will stay at the board for tonight’s hearing. Chairman MacQueen asked Attorney Gilbert if
they are doing the Use Variance and Site Plan together or are we changing back
to bifurcating the application. Attorney
Gilbert said he would like to finish this evening with Planner Zimmerman
testimony with the Use Variance aspect and then at another meeting finish up
with the Site Plan application. In
essence we are bifurcating the application.
Planner Bolan said it was a good idea to bifurcate the application
because the board can then concentrate on the Use Variance portion.
It was noted that Planner
Zimmerman was previously sworn in and is still under oath. Attorney Gilbert asked Planner Zimmerman to recap
his testimony he gave at the last hearing on July 8, 2009. Planner Zimmerman said the modest addition of
11,000 square feet to the existing building and the proposal to use the area in
the front of the existing building for the self storage units is a good use of
the property. There was testimony that
there is a need for self storage in the area and it is a low intensity
use. A self storage use is appropriate
in the Industrial zone for this property per Planner Zimmerman. Planner Zimmerman noted there isn’t a zone in
the Township that allows for this type of use.
There is no negative impact to the public good. The road will not be impacted by excessive
traffic. Lastly, there are going to be
improvements to the site plan, storage equipment, trucks and materials. This will clean up the site. These are the main points to the planning and
zoning testimony per Planner Zimmerman.
Attorney Gilbert said he had no direct questions at this time of the
Planner.
Chairman MacQueen asked the
board for questions of the witness. Mr.
Eberle asked if hours of operation fall under the category of questions at this
time. Attorney Gallina answered yes. Chairman MacQueen asked Planner Zimmerman to
go over the hours of operation. Attorney
Gilbert said Mr. Danzis had testified to the hours. It was noted the hours of operation were 6:00
July 22, 2009
Page 2
am to 10:00 p.m. Mr. Perry asked about plantings along the
side of the building. Mr. Machauer noted
from prior testimony that this use is inherently beneficial, is this to the
community or to the people renting the units.
Chairman MacQueen noted the comments made regarding negative criteria
for the use, isn’t extra lighting, extra noise, extra hours, doesn’t that fall
under negative criteria. Planner
Zimmerman said they don’t feel there is extra of any of those items. Planner Zimmerman stated that the extra
lighting will not be a negative regarding the neighbors and not be
objectionable. During Site Plan, there
will be a lighting plan for the board to review. Chairman MacQueen asked if Planner Zimmerman
was aware of the other uses permitted in the I5 zone. Planner Zimmerman stated the application is
for an expansion of the permitted use of the property. In 1991 the application came before the board
for a much larger facility then what is presently on the property. Planner Zimmerman went over what is permitted
in the I5 zone. Chairman MacQueen asked
Planner Bolan for any questions of the witness.
Planner Bolan had no questions.
The Chairman then asked if the board had any questions of the witness. Mr. Kozlowski asked about the lighting
referring to the minutes of July 8th. Mr. Perry asked about security and will the
Police need to check on the property.
Mr. Machauer asked Planner Zimmerman if he thought having the lights on
24/7 would be safer for security purposes.
Planner Zimmerman stated that the facility will close at 10:00 p.m. and
is a very secure operation. Mr. Maurizio
said even with the lights on you can not see into the facility from Route 513
because of the elevation and felt it was moot point with all the security
lighting unless the police had access to the facility. Chairman MacQueen noted that the hours of
operation are only proposed at this time.
Planner Bolan referred to the
1991 Resolution approved by the Planning Board, Attorney Gilbert said the
resolution states a 2 mix use office and warehouse buildings on a five acre
parcel. Building #1 containing 4,500 square
feet office space and 17,399 square feet of warehouse and building #2 is
purposed to construct for 5,700 square feet of office space and 8,000 square
feet of warehouse. The applicant has revised
the plans so building #2 now purposed for 4,490 square feet office space and
6,382 square feet of warehouse. The
total building will now be 8,990 square feet of office and 23,781 square feet
of warehouse. Planner Bolan said now the
total will be 23,500 square feet for the existing building that is going to be
expanded and the 11,000 square feet for the self storage units.
At this time, Chairman
MacQueen opened the hearing to the public for questions of testimony given. Nancy Wolfe of
Mr. Grossman stated the
applicant has to demonstrate the Positive Criteria known as Special
Reasons. The three questions are: 1) is
the use particularly suitable. Particular
suitability is the test of the general purpose provision of the MLUL. There are 15 purposes in the MLUL. 2) Does it further other purposes of zoning
in the MLUL and 3) Does it further the purposes of the Master Plan. Under the Negative Criteria, 1) is there
substantial detriment to the public good? 2) Is there substantial detriment to
the intent and purpose of the zone plan? Lastly, the board needs to look at the Medici
Standard. Mr. Grossman said a) does an
enhanced burden of proof reconcile the grant of a use variance with the
ordinance’s omission. No evidence was
provided that the application complies with the Medici standard. Mr. Grossman stated that in reviewing the
Master Plan and the Re-examination Reports by the Planning Board starting with
1988, 1994, 2000, 2001 and 2009. It has
never been recommended to include self storage units in the I5 zone. Even though it was noted that self storage
units have been around for 25 years,
Mr. Grossman referred to
Medici and said it has been singled out in Medici as the one “most clearly
amplifiers the meaning of special reasons”.
The applicant is obligated to look at the other purposes of the zone and
of the 15 purposes listed in the MLUL the applicant relies upon the
July 22, 2009
Page
3
following two purposes: a) provide adequate light, air and open
space. The applicant states that by virtue
of a plan that meets all the setback requirements it meets this purpose. Mr. Grossman said in previous testimony by
Planner Zimmerman, he said that another general purpose was to promote a
desirable visual environment to creative development techniques in good design
and arrangements. There must be a
balance between proposed visual improvements versus the impact that an
introduced prohibited use would have to the zone. A Use Variance must rest on more than just
beautification of the site with more landscaping even a site plan approved for
permitted uses would expect the same level of care in a landscaping plan. To
suggest that landscaping is worth a trade off to make a prohibited use palpable
is a weak argument. Mr. Grossman
referred to the Master Plan which states regarding the I5 zone: “the primary
non-residential uses permitted in the district include business,
administrative, executive, industrial and manufacturing uses and research laboratories”
and permitted conditional uses are: “roadside stands, institutional, public
uses, detached one family dwellings”.
Mr. Grossman quoted from the Master Plan “the permitted principal and
conditional uses are not proposed for change”.
Mr. Grossman stated that it is clear in the Master Plan that any changes
or additions were not being considered even though self storage units have been
around for 25 years. The Master Plan
goes into great detail as to how the vision for
At the conclusion of Mr.
Grossman’s testimony, Chairman MacQueen asked if the board had questions of the
witness. There were questions regarding
the Master Plan, uses permitted and not permitted in the I5 Zone. Chairman MacQueen asked if the board denies
the Use Variance, then there is not Site Plan, correct. Planner Bolan answered correct. Planner Bolan noted that if it weren’t for
the Use Variance the application would not be before this board. Mr. Grossman referred to testimony that had
been given regarding certain conditions that have been violated, those
violations are not going to go away, even if you deny the Use Variance there is
still an opportunity to correct those violations by the Township. Attorney Gallina said that the Zoning Board
is not an enforcing body. Chairman MacQueen
said that the application was originally sent to the board by a judge. Attorney Gallina said it was not sent here by
a judge and stated that there is a history where there might had been some
municipal court proceedings. Chairman
MacQueen said it then became a Use Variance.
Attorney Gallina said it was a structure violation which would be part
of the Site Plan, not the Use Variance. Attorney Gilbert interjected stating that he
wanted the record very clear there was no court action that required Mr.
Tranquilli to come before this board and present this application. Chairman MacQueen asked if the board had any
other questions for Mr. Grossman. There
were none. Planner Bolan did not have
any additional questions.
Attorney Gilbert informed the
board he would like to call back Planner Zimmerman to respond to Mr. Grossman’s
testimony. Attorney Gallina said that
rebuttal witnesses are called back after the public testifies then the
applicant can put on a rebuttal. Chairman
MacQueen asked if anyone from the public had any questions of Mr.
Grossman. There were none. Chairman MacQueen announced that the board
will take a recess at this time 9:00 pm.
When the board reconvened at 9:08 pm, Chairman MacQueen opened the
hearing to the public. The board briefly
discussed the order of testimony. It was
noted by Ms. Glashoff that for a continuation of this public hearing, the next
available date would be September 9th. Planner Zimmerman will give his rebuttal
testimony at this time. Planner Zimmerman
concluded the site will be a better neighbor if this application is approved
and if the Site Plan is submitted to this board and reviewed by the board’s
professionals and deal with some of the issues that are concerns of the board
in terms of coverage, landscaping, lighting and hours of operation, these are
all Site Plan issues. Planner Zimmerman
stated he is confident that these issues can be satisfactorily dealt with by
both sides of the table to achieve something that will be compatible with the
house on one side, the industrial on the other side and the horse farm in the
rear. Planner Zimmerman said that what
is proposed is much better in terms of being a good neighbor then what is
presently there at this time. That in
itself would be considered Special Reasons.
At the conclusion of Planner Zimmerman’s rebuttal, Chairman MacQueen asked
if the board had any questions of Planner Zimmerman. Chairman MacQueen then opened the hearing to
the public. Jim DeGaetano of Route 513
had questions for Planner Zimmerman.
July 22, 2009
Page 4
Chairman MacQueen asked if
anyone else from the public wanted to give testimony. Nancy Wolfe of
These buildings were the
subject of December 2007 municipal court hearing. Mr. Tranquilli was found guilty, paid a
$500.00 fine and was ordered by the Judge to file an application before the
appropriate board. Ms. Wolfe said these
illegal structures have been referred to as tents. Mr. Tranquilli’s testimony of October 22,
2008 was Attorney Gilbert stated for the record that the tents have been and
always will be used for storage. Ms.
Wolfe referred to the transcript reading pages 17 & 18. Ms. Wolfe said that the two illegal buildings
need to be addressed that were remanded by the court of December 2007, those
buildings are illegal and Mr. Tranquilli testified that he has sandblasted,
used air compressors and spray painted out of them. Until those issues have been addressed the
board can not issue a Use Variance. At
this time, Ms. Wolfe asked to have the Zoning Officer John Flemming join her to
give testimony as her witness. Mr.
Flemming was sworn in. Ms. Wolfe went
over Transtar’s Resolution from 1991.
Ms. Wolfe noted that at the time of approval the coverage on the
Transtar site was 39.6% with 40% being allowed by ordinance for coverage. The coverage presently on the property is
estimated at 51%. Ms. Wolfe submitted an
aerial photograph of the Transtar property to be marked into evidence. The following was marked: 02-Colored aerial view of the Transtar
property from 2008. Ms. Wolfe referred
to the Resolution of 1991 stating Item #15 in the Resolution refers to hours of
operation. It states that the maximum
days of operation will be 6 days per week.
Hours of operation will be 7:00 am to 7:00 pm. and the maximum number of
employees on site would be 50. Ms. Wolfe
said that Mr. Tranquilli had testified that hours of operation were 6:00 am to
11:00 pm per the transcript pages 13 &14.
The third provision from the 1991 Resolution is the applicant indicates
from the proposed operation of the site for offices and warehouse and
industrial uses will not generate noise, odors or glare from the property. Any and all power equipment and air
compressors will be contained within the building. The activities are conducted in the building
so the level of noise will not disturb the office uses.
Ms. Wolfe asked Mr. Flemming,
since there has been total non-compliance with these provisions from the 1991 Planning
Board Resolution and asked how he would address these issues in relation to the
Use Variance and expansion on this site.
Mr. Flemming said he doesn’t have authority over Use Variances. If an applicant has a conforming application
it allows him authority then he can approve it, otherwise unless the applicant
modifies the application he will reject it and then comes to the board. Once the board has jurisdiction, Mr. Flemming
said at that point does not have jurisdiction.
Mr. Flemming was then asked if he has jurisdiction over a Planning Board
Resolution. Mr. Flemming answered yes
stating if the conditions in the resolution are violated he has
jurisdiction. Mr. Flemming said he would
notify the applicant and ask to have the site brought back into conformance
with the Resolution or tell the applicant to go before the board with a revised
site plan. Ms. Wolfe went over items in
the Resolution and asked Mr. Flemming how to address two illegal buildings that
he referred to as quonset huts, Ms. Wolfe also referred back to 2002 and showed
the board by marking exactly where these tents are. Attorney Gallina told Ms. Wolfe to mark with
an X where the tents are on the property.
There are also 3 box trailers made into “u” shape and there is a tarp
and all kinds of metal structures that are semi attached to the building. This is where painting is being done. The
tent in the back is where the sandblasting is taking place along with the air
compressors. Ms. Wolfe asked how does the applicant proceed
with a Use Variance when they must address two illegal buildings that have been
used for painting, sandblasting and air compressor. This has been going on for 12 years. In 1991 per Ms. Wolfe, Mr. Tranquilli was
also found guilty in the municipal court of sandblasting in violation of the
Planning Board’s Resolution and paid a fine.
Ms. Wolfe stated that the paint residue has drifted across the property
into her 3 150 gallons tanks that are used for drinking water for her
horses. Ms. Wolfe asked Mr. Flemming
what assurances the board has that the two illegal buildings which is included
in the overage for coverage and he (Mr. Tranquilli) won’t have the opportunity
to paint and sandblast again. Mr.
Flemming said the Resolution can be enforced as long as it is written
properly. Ms. Wolfe asked if Mr. Tranquilli were approved for those buildings and those uses
would he have to go to the DEP and ask for a permit to conduct sandblasting and
painting and removing paint, meaning he would need a paint recovery system and
noise abatement system. Mr. Flemming
referred the question to Attorney Gallina since it is not in his
jurisdiction. Ms. Wolfe referred to the
ordinance on Performance Standards, Section 18-4.1 of the old ordinance book. (The Performance Standards in the new
ordinance book is: Article III 400:20).
Ms. Wolfe read into the record the Performance standards provided by
ordinance. Ms. Wolfe asked Mr. Flemming
what assurances he can give that if this is all approved that this type of
problem won’t happen again. Mr. Flemming
stated if the board approves this application and fashions a resolution that is
clear and details out
July 22, 2009
Page 5
everything that has to be
detailed and Mr. Tranquilli violates the resolution, he would write him a
certified letter and if Mr. Tranquilli does not comply with the letter he will
take him to court on the first violation.
Mr. Flemming said that she can be assured he will do his job. At the conclusion of Mr. Flemming’s
testimony, Chairman MacQueen asked if the board had any questions. The board nor the professionals had questions
of Mr. Flemming. Ms. Wolfe stated their
property adjoins five industrial properties and the only property owner that
hasn’t been a good neighbor has been Transtar.
Everyone else has been and is a good neighbor and good citizens. Ms.
Wolfe stated that until Mr. Tranquilli becomes a good neighbor following the
rules and being in violation, the board should not grant approval for the Use
Variance and Site Plan.
Chairman MacQueen asked the
board if they had questions of Ms. Wolfe.
Mr. Nagie asked about the court appearances. Ms. Wolfe went over what transpired with the
court proceedings. Mr. Tranquilli paid a
$500.00 court fine and was told to file an application with the appropriate
board by February 2008. Mr. Machauer
questioned what had transpired over the past 12 years and asked what actions
were taken. Ms. Wolfe went over all that
went on over the 12 years for Mr. Machauer.
Ms. Wolfe offered to give Mr. Machauer in chronological order a list of
all the events that have taken place of the past 12 years. Ms. Wolfe said she has pictures of the
sandblasting and painting. Ms. Wolfe
said she will provide the board with the chronological order of all the events
before the next meeting of this application.
Mr. Machauer stated to Ms. Wolfe that the system has let her down and
all the people involved have been remiss in their jobs. Chairman MacQueen interjected and asked that
due to the late hour, this application will need to be carried to another
meeting date. Ms. Glashoff informed
everyone this application will need to be carried to September since both
meetings in August are taken. The date
offered is September 9th.
Everyone agreed. Attorney Gallina
announced to the public the continuation date for this public hearing.
PRESENTATION OF BILLS:
a. John Gallina, Esq. $ 86.25 –
Attend Mtg 7/24/09 & phone conf.
Zoning Officer
$316.25 - Escrow
(Transtar)
b. Bayer/Risse Engrs. $418.25 -
Prepare & Attend Mtg 6/10/2009
c. Court Stenographer $200.00 - Attend
Mtg 7/22/2009
Total: $1,020.75
Motion by Mr. Kozlowski and
seconded by Mr. Nagie to approve the bills as presented. Unanimously approved.
CORRESPONDENCE:
a. Law Bulletin July 2009
b. Zoning Law
July 10, 2009
Being no further business to
come before the board, nor comments from the public, motion by Mr. Kozlowski
and seconded by Mr. Eberle to adjourn the meeting at 10:00 p.m. Unanimously approved.
_____________________________________
CHAIRMAN GARY MACQUEEN
_________________________________________
GAIL W. GLASHOFF, BOARD SECRETARY