A Community by the River

Borough of Brielle, NJ

February 9, 2010

March 24 2010

February 9, 2010



The Regular meeting of the Brielle Planning Board was held on Tuesday, February 9, 2010 at 7:30 pm in the Brielle Borough Hall, 601 Union Lane. After a moment of silent prayer and a salute to the flag, roll call was taken:

Present Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas
Condon, James Harman, Thomas Heavey, James
Langenberger, Tim Sigler, James Stenson, Terre Vitale

Absent Charles Sarnasi

Also present were Michael Rubino, Board Attorney, Alissa Commins and Peter Van de Koop of Birdsall Engineering and Karen S. Brisben, Recording Secretary. There were 15 people in the audience.

Chairman Condon then called the meeting to order and declared a quorum. He announced that, in compliance with the Open Public Meetings Act, notice of this Body’s meeting had been sent to the official newspapers of the Board fixing the time and place of all hearings.

Before starting the meeting, James Stenson, who was absent for the January Organizational Meeting, was sworn in to office.

The Minutes of the January 12, 2010 were approved on a motion by Mr. Langenberger, seconded by Mr. Heavey and approved unanimously by voice vote, all aye.


The Board members had all received the December 2009/January 2010 issue of the NJ Planner. On file in the Board Office: two resource papers from ANJEC (Assoc. NJ Environmental Commissions), “Protecting our Streams” and “Major State Programs Affecting Land Use”.


The Board then turned to the approval of a Resolution for Minor Subdivision for Block 43.01, Lot 10, 611 Homestead Road, owned by Thomas Smith and Laura Desmond (Applicant Joseph Carannante, Contract Purchaser), to allow the creation of two lots. Before taking a vote, it was noted that the neighbor, Eric Makreel, was in the audience and was concerned about the fire hydrant being moved to the front of his home on Homestead Road. He just wanted to be notified of when this was going to be done so he could be present as he has a sprinkler system in his front yard and did not want it to be damaged. Mr. Condon was aware of the request and, while Mr. Makreel was not allowed to speak as the public portion of the hearing was closed, he was told by the Chairman that the Public Works Director, William Burkhardt, would be notified and requested to let Mr. Makreel know when this hydrant was going to be moved.

As all Board members, as well as the applicant’s attorney, had received a draft Resolution and there were no changes or recommendations, the following was presented for approval:

“WHEREAS, the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey has before it an application for Minor Subdivision Approval with a Variance from Code Section 21-9.13 which requires that all front yards face a 50 foot wide right-of-way, and the applicant having submitted a minor subdivision plan prepared by R. S. Butryn, PE, LS dated August 18, 2009, with no revisions, and the front yards on the subdivision fact Homestead Road which has a 40 foot right-of-way and Steven Pardes, Esq., having appeared for the applicant and the applicant having presented its case at the January 12, 2010 hearing and the Board having listened to the testimony and evidence presented by the applicant and the testimony offered by the neighbors who objected to the application; and

WHEREAS, the Board has jurisdiction of the matter as a result of the applicable Ordinances of the Borough, adopted pursuant to the Municipal Land Use Law, Chapter 291, Law of 1975, as amended and supplemented, and the Board having considered the matter at a public hearing as set forth above, and the Board having made the following findings of fact:

1. The applicant is before the Board as a result of the letter of the Borough Zoning Officer, Alan Hilla, Jr. dated September 4, 2009, which stated that Code Section 24-3 provides that no person may subdivide any land within the Municipality without having first obtained approval through the applicable Land Use Board. The applicant is asking to subdivide the subject property and is properly before the Board.
2. The property in question, Lot 10 in Block 43.01 is located on the northwest side of Homestead Road and lies within the Borough’s R-4 Single Family Residential Zone. The lot which is approximately 100 feet by 140 feet currently contains a one and one half story dwelling, a detached garage/shed, wood deck and asphalt driveway. The applicant has asked for the following waivers:
(a) Location and widths of all streets within 500 feet of the tract.
(b) Topography within 200 feet of the tract; and
(c) Storm drainage features within 500 feet of the tract.
3. The Board finds that as this subdivision is in an area that is fully developed that the Board can grant said waivers.
4. It should also be noted that the applicant did not include architectural plans for the two proposed dwellings. Mr. Hilla, the Board Engineer, in his letter of December 8, 2009, did request the same. The Board finds, however, that as the lots are fully conforming and as there was a representation by the applicant that the houses to be built on the property will fully conform with all the zone requirements of the Borough Ordinance, it can allow this applicant to proceed without requiring the aforesaid architectural plans. It does deem necessary that the applicant file architectural plans and all engineering plans necessary for the Zoning Officer and Building Department to fully approve all building issues and engineering issues that might be related to each site during the permit process. In addition thereto, as per paragraph 3 of Mr. Hilla’s December 8, 2009 letter, the applicant will be required to submit and have approved individual plans, including existing and proposed grading and drainage, for construction on proposed Lots 10.01 and 10.02 during the permit process.
5. The Board notes that with the exception of requirement that property be built on a 50-foot wide right-of-way that the application itself provides for the creation of two fully conforming lots in the R-4 Zone and that each will be substantially larger than that in which is required by the zone. In addition thereto, the Board finds that the size and shape allows the construction of homes on them that will be fully conforming.
6. The applicant requested a variance to allow the applicant to subdivide the property on Homestead Road which has a 40 foot right-of-way, whereas a 50 foot right-of-way is required. The Board notes that Homestead Road is a fully developed street where most of the lots on it have houses built on them. The Board finds that at this point in the development of Homestead Road that it would not be good planning to require this applicant to widen Homestead Road in front of the lots, as it would not be visually attractive to do so and it would also create a traffic hazard to do so. The alternate is to allow the applicant to divide the property on the 40 foot right-of-way. As noted, as Homestead Road is already developed and as most of the lots on Homestead Road have already have houses built on them, there would be no impairment of the area to allow this property to be subdivided on a 40 foot right-of-way. The Board, therefore, finds that under the C-2 standard that creating a variance to allow this development rather than requiring a 50 foot right-of-way makes for better planning and zoning. In addition thereto, the Board finds that under the C-1 standard of the statute that variance relief can be granted. The Board does find that it would be a hardship to require the applicant to widen the street in the area.

NOW, THEREFORE, BE IT RESOLVED by the Board that it adopts the aforesaid findings of fact, and based upon the aforesaid findings the Board concludes that the applicant has satisfied the necessary criteria for granting the “C” Variances. The Board also finds and concludes that with respect to the “C” Variances:

(a) The Board finds that by reason of an extraordinary and exceptional situation that uniquely affects the subject property and the structure which exists lawfully thereon, the strict application of the aforementioned regulations would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the applicant. It should be noted that the Board finds that the building pre-dates the site plan Ordinances of the Borough and that the building and structures at the site exist there lawfully.
(b) The applicant has demonstrated that the purposed of the Municipal Land Use Law and the Land Use Ordinances of the Borough of Brielle would be advanced by a deviation from the Zoning Ordinance requirements at issue, and further that the benefits of any such deviation would substantially outweigh any detriment resulting from a grant of the application.
(c) The Board finds that the relief can be granted without substantial detriment to the public good and that the relief will not substantially impair the intent and purpose of the Zone Plan and Zoning Ordinances of the Borough.

It should be noted that, during the course of the hearing, the applicant did agree to comply with items 1 through 9 on Mr. Hilla’s report of December 8, 2009. It should also be noted that, during the courser of the hearing, the applicant agreed to relocate the existing fire hydrant in the northwest corner of Homestead Road.

WHEREFORE BE IT RESOLVED, that the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey, does hereby resolve to grant Minor Subdivision Approval to Joseph Carannante for premises known as 611 Homestead Road, Block 43.01, Lot 10. Said premises lying in the R-4 Zone along with a variance from Code Section 21-9.13 to allow the subdivision on a 40 foot right-of-way whereas the Ordinance requires a 50 foot right-of-way and the deed perfecting the Minor Subdivision shall not be signed until all of the following conditions are met and until the Board Engineer shall signify to the Board Secretary, in writing, that said conditions have been met:

1. Payment of taxes and other applicable assessments, costs and fees to date, including payment of all escrow fees.
2. Monmouth County Planning Board Approval or receipt of communication indicating no interest in the subject application or passage of the appropriate time period pursuant to law.
3. The Applicant shall obtain Letter of Interpretation and general permits for wetlands disturbances from NJ Department of Environmental Protection.
4. The Applicant shall post the appropriate performance guarantees and inspection fees in an amount to be determined by the Board Engineer’s Office.
5. The Applicant shall comply with the letter of the Board Engineer Alan P. Hilla, Jr., PE, PP, CME, dated December 8, 2009.
6. The applicant shall relocate existing fire hydrant on the northwest corner of Homestead Road.
7. The applicant shall be required to file conforming architectural plans to confirm the building height, gross floor area and floor area does show requirements of Code Section 21-14.2 and also to confirm that any new houses built on the premises will fully conform with the Borough Zoning Ordinances at the time of the zoning process.
8. The applicant will be required to submit for approval individual site plans including existing and proposed grading and drainage calculations for any construction on proposed Lot 10.01 and 10.02.
9. The applicant shall obtain any outside approval deemed necessary by the Board Engineer prior to the plans being executed by the Board Secretary.
10. The proposed lots and lot number shall be approved by the Borough Tax Assessor.
11. The applicant shall comply with the requirements of the Board Engineer’s letter dated December 8, 2009.

BE IT FURTHER RESOLVED that in accordance with the Municipal Land Use Law that the minor subdivision shall be perfected within 190 days from the date of this Resolution of approval, with the minor subdivision map having been executed by the date, together with the conforming deed being recorded with the Monmouth County Clerk’s Office as required, it being understood that this time limit is set by the Municipal Land Use Law, as to the compliance with the terms of this Resolution and the filing of the deed or the map to perfect this subdivision, it shall be applicant’s obligation and responsibility to do so as it is applicant’s obligation to comply with said law. In the event that the applicant fails to do so, then upon notice to the applicant, the Board Secretary shall list this matter on the Planning Board agenda for dismissal without prejudice unless the applicant offers appropriate reason for the delay.

Further, this Board directs that the Land Use Office take whatever steps it may deem necessary to insure that restoration of this site to its original condition occurs if the developer is deemed by the Land Use Office to be in substantial non-compliance with the standards of performance and the conditions set forth in this Resolution of the Planning Board (and/or Borough Ordinances and/or requirements of the Borough Council) by way of conditional preliminary concerning this subdivision and land and that steps also be taken as may be deemed necessary by the Borough Council to place the responsibility of same financially and otherwise upon the applicant and the principals involved as well as his heirs, successors and assigns.”

A motion to approve the above Resolution was made by Mr. Heavey, seconded by Mrs. Vitale and approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Thomas Condon, James Harman, James
Langenberger, Thomas Heavey, Terre Vitale

Noes: None

Not Eligible to Vote: Councilman Frank Garruzzo, Tim Sigler, James Stenson


The Chairman adjusted the agenda and the Board turned to a hearing for an application for variances for Block 64.03, Lot 3, 630 Susan Lane, owned by Frederick & Elizabeth Popovitch, Jr., to allow construction of a detached garage, driveway, in-ground pool and retaining walls. Grading no more than two feet change allowed, 3 to 5.5 feet grading change proposed. Minimum Principal/Accessory Separation 10 feet required, 0 feet proposed (entry exceeds 3 feet in height). Rear Yard Setback (Accessory Building) 14.23 feet required, 1.5 feet proposed (as entry exceeds 3 feet in height). Lot Width 125 feet required, 0 feet existing (triangular lot). Lot Depth 125 feet required, 0 feet existing (triangular lot). Rear Setback (principal) 40 feet required, 26 feet existing. Side Setback (playhouse) 5 feet required, 3.2 feet existing. Rear Setback (playhouse) 5 feet required, 3.0 feet existing. Note: due to existing site conditions and lot configuration, this property maintains a single front yard (curbed) along street frontage, a side yard adjacent to Lot 4 (to the west) and a rear yard adjacent to Lot 2 and Lot 15 (to the North).

Before starting this hearing, Mr. Harman recused himself as he does business with the applicant. The fee of $800 was paid, taxes are paid to date and the newspapers and property owners within 200 feet were properly notified.

Mr. Robert Benedict came forward to testify on behalf of the Popovitch family and presented a signed letter stating same. After he was sworn in, he said he is like an uncle to the family and has known Mr. Popovitch for over 25 years. Mr. Rubino asked if he was a builder and the answer was no, but he will be helping the owners.

Mr. Benedict referred to the site plan, which was marked Exhibit A-1, and noted the upper level is on the back side. The driveway used to come in that way but they renovated the home (the Popovitches owned the property for about 8 years), the driveway now stops and no longer goes into the back yard. This now creates a blind spot when they pull out onto Susan Lane and he had photos of the site to show this. Mr. Rubino marked 4 pictures of the side of the home as Exhibit A-2 and another board with 3 pictures as Exhibit A-3. Mr. Benedict said these pictures show the back yard and it can be seen where the driveway used to curve around; the old garage is now the kitchen and there was also a photo of the hedgerow where the blind spot is.

Mr. Condon asked about the playhouse in the rear yard and Mr. Benedict said it always was there, Mr. Popovitch modified it and moved it so there would be no problems with the town. Mr. Condon then asked is they want to change the driveway and move it more in the center and the answer was yes. They will then be able to come out facing the traffic and they will be away from the hedgerow, it will be safer. Mayor Nicol noted a car in one of the photos and asked if that was the neighbor’s and the answer was yes. Mr. Condon asked if they were taking down 4 trees and Mr. Benedict said yes, but they will be replaced; now there are holly trees and these will be replaced by maple and willow trees, 3.5 to 5” caliber.

Mr. Langenberger noted the pictures were from 2007 and wanted to know if there were any more current and Mr. Benedict said no and noted the steps shown on the plan are where the garage was. Mr. Sigler asked if the garage is attached to the house and Mr. Benedict said no, it is about 5 feet away; Mr. Sigler then asked if it can be moved and the answer was no, that would shrink it too much. Mr. Sigler thought there can be 3.5 feet in the front and still have the 5 feet in back of the fence; he also noted the engineer’s report had a concern about the existing retaining wall being damaged. Mr. Benedict did not think this would happen, they can push the garage forward but then they will encroach on the front yard the steps are the problem, not the building itself. Mr. Langenberger asked about the distance between the existing and new retaining wall and Mr. Benedict wanted to refer that question to their engineer.

Mr. Rubino asked about the steps and Mr. Benedict said they will be lowered and the steps will take you to the playroom above the garage as the garage will be built into the hill. Mr. Condon asked what will be in that room, will there be a bathroom and heat and Mr. Benedict said yes but the bathroom will be under the stairs and not in the playroom. They will also create an entrance door, 2 steps down, for access to the basement.

William Voeltz then came forward to be sworn in, he is a Professional Engineer and Planner and has appeared before this Board before. He is licensed in NJ as a Planner and Engineer and works for the firm of Lindstrom & Daesener. The Board accepted him as an expert witness.

Mr. Voeltz felt it was also important to note the drainage is north to south across Susan Lane, how it goes towards the house so the drainage was put on the side of the house; they will also re-grade this to direct the flow out to the curbline; the entrance to the basement is below grade and there was concern. The top of the inlet will be below grade and they are making it this way to stop “bubbling” from the drainage. They will re-align the driveway and this will provide a site triangle. As far as setbacks, in order to put the new garage in, they thought the front would be more severe and the neighbors in the back did not have a problem with a new garage, they did not realize the stairs would be a problem and if they take them out they will have the five feet necessary. They would have to comply by moving the garage 5 to 7 feet into the front yard and they did not want to do this.

Ms. Commins then spoke and agreed with Mr. Hilla’s report that Susan Lane is the front of this property and the opposite end is the rear this determination is according to the R-2 Zone requirements. Due to the grade change, the height of the garage is actually 12 feet higher than the property in the rear. Mr. Heavey asked what is the required setback and Mr. Voeltz said 14.23 feet. Mr. Rubino felt there has to be a determination made if this is a side yard or a rear yard as the lot is of an unusual shape. Councilman Garruzzo agreed with Mr. Hilla’s report as the house fronts on Susan Lane, his report made sense to him. Mr. Voeltz also noted that William Drive also makes a turn. Mr. Rubino said the Board can consider this a side yard if they want and then they only need a two foot variance and not a 9 foot variance (if this were the rear yard).

Mr. Sigler said the stairs are still a problem by three feet. Councilman Garruzzo asked if the stairs will be open and Ms. Commins said they look enclosed. Mr. Benedict agreed with Ms. Commins and said there will be a potting shed under these stairs, the stairs behind are the problem.

Mr. Voeltz noted Mr. Hilla’s concern with the retaining wall so he proposed a cast & place wall and to design it for extra strength for the soil, this will not disturb the abutting property. Mr. Langenberger asked him what is the distance between the proposed wall and the neighbor’s wall and Mr. Voeltz said 2 feet. Mr. Langenberger felt that emergency equipment will not be able to get back there and Mr. Voeltz said they can use the other side. Mr. Langenberger noted that is very steep on that side, he was looking at the ability of the Fire Co. or First Aid Squad to get back there; if the stairs were removed that would give a 5 foot opening. Mr. Voeltz agreed but said there will still be a steep slope. Mr. Sigler commented that in between the garage and house there is a 4 foot wide access and Mr. Langenberger said he saw that now.

Mr. Voeltz then said there was a question on why they are exceeding the height for the wall and answered they are trying to control the drainage; they are putting in a pool and they want to get rid of water problems. Mr. Langenberger asked if the neighbors have a timber wall and Mr. Voeltz said yes; Mr. Rubino said he could see both here, part stone and part timber.

Mr. Heavey wanted to know if a determination should be made on whether this is a side or a rear yard and Mr. Rubino agreed this should be done at the end of the testimony. Mr. Voeltz said they chose to keep the front yard in line with other homes but they can move the garage forward; Mr. Rubino said if they did this they would have to re-notice and come back before the Board.

Mr. Voeltz then explained the positive criteria: the garage is needed for the family to use and by grading they will provide proper drainage and slopes for access to the garage, this will be an aesthetic upgrade which will be in keeping with the neighborhood, they will re-plant trees and fix the drainage problems. On the negative criteria, it would be a hardship for the owners as there would be a garage problem for construction without variances.

Mr. Rubino asked about the size of the garage and was told it will be 24 feet wide and 26 feet deep, it will be a tight garage. Mr. Sigler asked if they had planned any drainage to keep on the property or will it all go to the street and Mr. Voeltz said they will use perforated pipes, they do not want to send all the water to the street and this type of pipe will restrict it. Mr. Sigler asked if there will be an increase to the impervious coverage and Mr. Voeltz said they will put in open joint pavers and a good majority will drain offsite. Ms. Commins said the plans do not show perforated pipes and they should be revised to show this. Mr. Voeltz also noted the pipe in the corner has to be fixed and they will do this.

Mr. Benedict came forward again and said the back of the house needs to be re-graded. Mr. Popovitch is trying to get dirt away from the foundation and drain properly. In the 4 pictures presented earlier the neighbor’s wall is shown and water comes down that wall to their house foundation. Mr. Langenberger remembered this home having water problems and termite problems as well, the Fire Company was familiar with the home and the water problems.

Ms. Commins had figured that there will be impervious coverage of about 45 to 48% and noted that 16% is the building; she did not think there is an impervious coverage limitation in Brielle’s Zoning Ordinance. Mr. Voeltz also wanted the Board to know the mechanical equipment will be on the west side of the garage and will be actually in the rear yard; Mr. Sigler asked if it will be enclosed and both Mr. Voeltz and Mr. Benedict said it could be.

As there were no more Board questions at this time, the hearing was opened to the public for questions for Mr. Benedict, then Mr. Voeltz. As there was no response that portion was closed and Mr. Condon then asked if there were any general comments from anyone in the audience and again there was no response, so that portion was also closed and the Board went into discussion.

Mr. Langenberger said that when he first looked at this he thought it was a great way to maximize the use of a very odd lot, this is a unique plan and he had no problem. Mr. Heavey had o problem either but still felt the Board needs to decide if the area in question is a side yard or a rear yard and the rest of the Board agreed. After a brief discussion it was unanimously decided to leave it as it was presented in the application, a rear yard; Mr. Rubino agreed this would be safer for all.

Mayor Nicol asked where Mr. Popovitch was and Mr. Benedict said the family was on a planned vacation to Mexico and, therefore, they asked him to speak for them.
Mayor Nicol then made a motion to accept this application with the stipulation of putting in perforated pipe and compliance with the Board Engineer’s report, this seconded by Mr. Sigler. Before the vote, Mr. Benedict wanted to know if they also have to change to perforated pipe in the front and he was told this would be decided by the Board Engineer.

As a motion for approval had been made and seconded, the following roll call vote was taken:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon,
Thomas Heavey, James Langenberger, Tim Sigler, James Stenson,
Terre Vitale

Noes: None

The Board then turned to an application for a Minor Subdivision for Block 8, Lot 1, 407 Old Bridge Road, owned by James and Alison Aridas, to allow the creation of two lots. Variances: all front yards must face a 50’ wide road, right-of-way fronting the property is only 33 ‘ wide (County road has a 13.5’ widening easement). Proposed Lot 1.02 would have a frontage of 19.75 feet. Grade grade changes in excess of two feet. Lot Width (Proposed Lot 1.02) 75 feet required, 19.75 feet proposed. Building Height (Proposed Lot 1.02) Setback (accessory) (driveway) 5 feet required, 1foot proposed (on south side of stem).

As Board Attorney Rubino had a conflict with the applicant, Mr. Jeffrey Cramer, Esq. took over as Board Attorney for this hearing. Mayor Nicol and Councilman Garruzzo had to recuse themselves as this hearing involves a Use Variance and they are not eligible to hear Use Variances.

The fee of $1,500 was paid, taxes are paid to date and the property owners within 200 feet as well as the newspaper were properly notified. Mr. Francis Rupp, Esq. came forward and had Mr. James Aridas sworn in to testify. Mr. Aridas told the Board he, his wife and 3 children, ages 18, 16 & 11, have lived at 407 Old Bridge Road since June of 2009, they purchased the property around June of 2008; before that they lived at 643 Woodland Avenue in Brielle. When they purchased the home they had plans to raze the house and build a new one, however, the economy had them rethink their plans.

They now want to subdivide the property into 2 lots, one behind the other, and the rear structure would be for them, the front for the in-laws to use as a summer residence. Mr. Rupp asked him about the workshop and pool that is on the site and Mr. Aridas said he will not be using this workshop for his business, he has a 4500 square foot shop in Toms River, this workshop would be just for home use for his sailboats. Mr. Rupp asked about trees and Mr. Aridas said they will maintain the trees that are ornamental, the rest are scrub trees. There is bamboo on the property and they will try to use that for screening.

As there were no questions from the Board to Mr. Aridas, Mr. Condon opened the hearing to the public for questions only; there was no response, so that portion was closed and Mr. Charles Gilligan of Gilligan Engineering came forward to be sworn in and give testimony. However, before that Mr. Rupp remembered one more question for Mr. Aridas and he came forward again; he noted the southwestern triangular lot next to this one is land only and he asked Mr. Aridas if he had contacted the owners to purchase this parcel. Mr. Aridas said yes and the owners were not interested in selling. The letter sent to the owner, Mr. Rodney Thomas, was marked as Exhibit A-1. Mr. Rupp then noted emails went back and forth, and copies of the 3 pages of them were marked as Exhibit A-2; Mr. Rupp then asked Mr. Aridas to testify as to the accuracy of these emails and Mr. Aridas said the first one was a response from Mr. Thomas which said they would be in touch and they wanted to know the amount proposed. He said they responded with an offer of $45,000 based on the square footage that his family had purchased; the triangular lot is not a buildable one. He did not receive a response; he has also asked Mr. Thomas if they could use this property for parking but, as it worked out, they were able to work with what they have. Mr. Cramer asked if the $45,000 was based on a real estate appraisal and Mr. Aridas said no, he did this on his own and got no response. He also noted the property is in a family and a lot of that family are owners, they purchased their property from the Thomas family and there were problems due to all the owners.

Mr. Condon again opened up the hearing for questions to Mr. Aridas and there was no response, so that was once again closed and Mr. Gilligan, who has testified before this Board many times, came forward and was accepted as an expert witness, he is a Licensed Planner and Professional Engineer, he was testifying this evening as an Engineer. He explained the lot is on Old Bridge Road with a frontage of 108 feet; it is a 34,158 square foot lot which is 3 times more than what is required. There are no variances for the front lot other than the fact that lots must front on a 50 foot right-of-way and Old Bridge Road is 33 feet wide. They are going to change the driveway to a “T” driveway so they can turn around to avoid backing out onto this county road.

He went on to state the new lot will be 22,809 square feet and will be a flag lot with a stem of 19.75 feet fronting on Old Bridge Road, the lot itself will be 100 feet wide. The new house will be about 32.5 feet high but a variance is needed due to the topography of the property; the slope is 4.1% so they are 8.2 feet above the crown of the road at the location of the new home which makes them about 5 feet too high. They can shove the home into the ground and lose the 5 feet but he did not feel this would be good. The Ordinance does address steep lots and where the slope is 6% or greater the building can be measured from the building wall; they are asking that this be allowed in this case even though the slope is 4.1% and not 6%.

Mr. Rupp commented that the next big issue is the concept of drainage and grading. Mr. Gilligan said he disagreed with some of Mr. Hilla’s engineering report. They plan to use a cistern or dry well to perforated pipe and this will be underground drainage, the out buildings will have drainage to grass to percolate. Mr. Hilla was concerned about the runoff to Old Bridge Road and they can put in catch basins; Mr. Gilligan felt he can meet all of the Board Engineer’s concerns.

Mr. Rupp then asked him to address the driveway width and Mr. Gilligan said they are asking for a variance for an 18 foot easement and 12 feet pavement, bamboo in this area will act as a buffer, they can go down to 10 feet pavement to reduce impervious coverage. Mr. Rupp asked about impact o the adjacent properties and Mr. Gilligan said there will be none, the house in the back will be higher due to the slope of the lot but there will be no negative impact.

Mr. Langenberger asked about the Fire Company report and, as this will be a flag lot, the Fire Company requires an 18 foot wide lane and it must be able to hold a fire truck, the minimum width of a truck is 8 feet and, with the pads out, 12.1 feet. The distance from the hydrant to the proposed home is about 600-700 feet, if not more; he felt an 18 foot easement and 8 inch water main with a hydrant would be the bare minimum, they have required this of other flag lots. Mr. Gilligan felt the applicant would agree to this, but an 8 inch main is too big, they would go with a 6 inch main, there would be stagnant water with an 8 inch main. He said the open throat of the driveway is 18 feet but the stone will be 12 feet; Mr. Langenberger said it must be able to hold a truck and Mr. Gilligan said they can put in stabilized grass with concrete pavers to 18 feet and they can even go down to 18 feet on the asphalt. They can work with this and can meet the 18 feet with pavers.

Mr. Sigler asked about the height of homes in the area and questioned where the measurement was taken. Mr. Gilligan confirmed his previous testimony of being 8.2 feet up the slope with a home that will be 32.2 feet tall, he did not know if other homes in the area are different as they are all on a slope.

At this time the meeting was opened to the public for questions for Mr. Gilligan and Robert Houseal of 608 Rankin Road came forward and was sworn in. He asked for a definition of building heights and Mr. Gilligan said the synopsis is the center line of the street to the highest part of the building; he then read the appropriate information from the Zoning Ordinance. Mr. Houseal asked if it will be a two-story structure and the answer was yes and it will have a basement. Mr. Houseal asked if a one-story structure would be conforming and Mr. Gilligan said yes, but they can also shove the home deeper in the ground and meet the height requirements.

As there were no further questions to Mr. Gilligan, that portion of the hearing was closed. Ms. Cheryl Bergailo was then called forward to testify and she was sworn in; she has been a Licensed Professional Planner since 1997, is the Municipal Consultant for Wall Township and has testified before this Board on other hearings; the Board accepted her as an expert witness.

She presented small size versions of exhibits which were marked as Exhibit A-3 by Mr. Cramer. The first page consisted of 4 photos of the area, the first picture is the rear yard where the new home will be, the second picture is the house on Lot 26 showing a tremendous amount of bamboo, so much so that the house can barely been seen; the third picture is looking at Old Bridge Road, the fourth picture is the rear lot again which shows homes this new home will back up to. The second page is an aerial photo with a tax map overlay along with the proposed building overlay; this overlay shows the interesting staggering of setbacks and the house will conform to this. This exhibit shows that the location of the new home is in keeping with the neighborhood, there is sufficient space between homes, over 100 feet. Mr. Cramer wanted to mark page 2 as Exhibit A-4 as it was so different.

Mr. Rupp asked her to address the height variance and Ms. Bergailo said if the Board feels the more lenient height restrictions cannot be applied here then a D-6 Height Variance is needed, it is not a Use Variance as this is a permitted use, but it is in the “D” category. The house will be 32.5 feet high so it does meet the height requirements; the best site planning is to work with the existing grades and soil, but this creates a hardship but will not be a detriment to the public good. This works with the existing topography and the homes on Lenape Trail are higher than this home will be, there is sufficient space so this new home will not be towering over the others; the bamboo will stay there and will shield this from Old Bridge Road.

She then mentioned the architectural plans that were submitted and Mrs. Brisben corrected her and said there were no architectural plans submitted with the application. She had some plans and said this will be a colonial type home. She then went back to the slope issue and agreed they are not quite at a 6% slope and, if this were an 8% slope they could build this home here. Mr. Rupp asked if there were anything else that was unique and Ms. Bergailo said the main issue is the “D” variance for height, the “C” variance that is needed is due to the width of the road, an existing condition. Also, a C-1 & C-2 variances comes into play for the flag lot configuration, as well as the side yard setback of 1 foot where 5 feet is required. This is a large lot and can really be made into 3 lots if it were configured differently and had enough frontage on Old Bridge Road, so there is a hardship in relation of width to depth; this is why they cannot make two conforming lots. They could refigure this property but would end up with two long, narrow lots and they felt the flag lot was a good alternative. Other lots in the area are not able to do this type of subdivision and the residential density still is less than what is permitted; also drainage will be improved and there will be over 40 feet between the house and the new driveway.

Two purposes of the Municipal Land Use Law have been advanced; there is appropriate density and this is good civic design and arrangement, this lot as it stands now is under-used and the benefits outweigh the detriments.

Mr. Condon noted that Old Bridge Road is a County road and asked if they had gotten county approval as yet and Mr. Rupp said they wanted to get Borough approval before going to the County.

Ms. Commins went back to a comment made by Mr. Gilligan earlier about an 18 foot clear area for the driveway and said the bamboo buffer that has been discussed will be lost; Mr. Gilligan agreed it will disappear. Ms. Bergailo said the bamboo on lot 1.01 will remain. Ms. Commins said if they moved the new home forward 30 feet they would meet the height requirements, so it is not necessarily topography but the setback; Ms. Bergailo did not think this was a better alternative. Ms. Commins said she just wanted to make this clear to the Board.

Mr. Van de Koop, the Planner hired by the Board, asked if she can describe a little bit on the boundaries and vegetation. Mr. Gilligan spoke and said this is residential use so no buffer is required but they do want to maintain what they can in the rear area. Ms. Bergailo said there is vegetation in the back which will filter the view and the lot next door, the triangular one, is wooded. The front house will not affect this now but if it is sold in the future plantings can be put in. Mr. Langenberger said he would like to see a 6-foot privacy fence for the rear setback.

At this time the meeting was opened to the public for questions to the planner and Mr. Houseal came forward again. He asked if there were any other flag lots in the area and she believed there was one farther to the south and on the river. Mr. Houseal then questioned the purposes of zoning and Ms. Bergailo said there is a Municipal Land Use Law by the State as well as the Zoning Ordinance of Brielle and she had addressed this in her testimony; appropriate property density, will promote desirable visual environment and is an efficient use of the land. Mr. Houseal then asked what the difference is between the positive and negative criteria and Ms. Bergailo said the positive is advancing the zoning and the negative is an adverse impact of a project. He asked if the negative criteria would deal with Brielle zoning and the answer was yes.

Mr. Houseal then asked for an explanation of a “D” variance and why a “D” variance. Ms. Bergailo said with respect to this project, they are exceeding the height by more than 10% and there would have to be a 2/3 majority vote or 5 affirmative votes for this to be approved. Mr. Houseal then asked the difference between a “D” variance and a “C” variance; Ms. Bergailo said that a C-1 would apply to a hardship that uniquely affects a property, the Board can grant a C-2 variance to a specific piece of property with no detriment to the public good. Mr. Houseal asked her if she was familiar with any case law on flag lots and she knew of a recent one in Brielle on Rankin Road and said the Municipal Land Use Law does not have an opinion on flag lots. Mr. Houseal asked her if the second story proposed creates a “D” variance, is that not self-created and Ms. Bergailo said no, she did not agree with that. He then asked if they have not created a hardship due to the flag lot and Ms. Bergailo said they are asking this due to the shape of the lot itself, many of the variances are related to the hardship issue; there is deficient lot width due to the shape of this lot.

Mr. Rupp spoke then and said the intent of the Zoning Ordinance is designed to make practical use of land and Ms. Bergailo said they more than comply with Brielle’s Master Plan as it speaks of densities and not of lot widths.

As there were no further questions, that portion of the hearing was closed. Ms. Commins asked if there were any other flag lots along Old Bridge Road and Mr. Aridas answered and thought there was one on Captain’s Court in the cul-de-sac, the original house of that development; there also may be one on Agnes Avenue but Mr. Condon said that the Agnes Avenue property is not a flag lot in definition. He did ask about the flag lot on Rankin Road and Mrs. Brisben said the Planning Board denied that subdivision, it was taken to court and the applicants, the Walls, won so they received their subdivision.

Mr. Rupp asked Mr. Aridas to come forward again to address the photo of the proposed home type which he confirmed was accurate, this was marked as Exhibit A-5.

Mr. Peter Van de Koop, the Planner hired by the Board from Birdsall Engineering, then came forward and was sworn in. He addressed the height as that was a major concern caused by topography. It is technically not in conformance with the Borough Ordinance; while the height of the building itself will be 32.5 feet it will actually be 41 feet due to the slope of the lot. The vegetation will help in buffering and this is feasible but he wanted the Board to be aware that there will be a significant disturbance of plantings during construction.

At this time Mr. Cramer interrupted the meeting and asked for a 5 minute recess and this was done. When the Board reconvened Mr. Condon noted they have already gone over the 45 minute time limit on applications but Mr. Rupp asked for a decision tonight as they were turned away in January due to attorney conflict. Mr. Condon asked the Board members and all were in agreement to continue so this can be completed this evening.

Mr. Van de Koop then continued with his presentation and felt the disturbance to the vegetation during construction will change the impacts of the screening and this should be considered. They are 5.1 feet over the height limit and asked if there was any consideration to take this down 1.7 feet which would eliminate the “D” variance need. Mr. Condon said that was asked before the meeting due to the conflict of the Mayor and Councilman not being able to sit on this and they would not change the height.

Mr. Van de Koop said one other potential issue is County access for the driveway on Old Bridge Road and this has to be taken into consideration.

The hearing was opened for questions to Mr. Van de Koop and, as there were none, that portion was closed.

Mr. Rupp then summed up by stating this is an unusual slope of property, they are trying to make the best use of the land; they have discussed vegetation and barriers and Mr. Aridas would prefer to have this natural and not put up a 6 foot fence, they want natural vegetation. The Planner has addressed the positive and negative criteria and he asked the Board to approve this subdivision.

The hearing was opened to the public again, this time for general statements as well as any questions. Mr. Houseal came forward again and said the “D” Variance and the “C” variances are self-imposed and he did not want the Board to under estimate the negative impact on the Brielle Zoning Ordinance. As there were no further public comments, that portion was closed and the Board went into discussion.

Mr. Langenberger said he was not in favor of flag lots and he was concerned about starting a chain reaction, however, according to the testimony given the other lots in this area are not wide enough. If the applicant can satisfy the Fire Company’s concerns and put in some type of shrubbery, arborvitae or some sort of landscaping, he would be in favor. Mr. Gilligan said he does have a pool and can put in a 6 foot fence around that. Mr. Langenberger felt that something should be done as well as putting in a 6 inch water line and a fire hydrant.

Mr. Stenson felt the driveway should be maintained to 18 feet wide with the pavers as testified. He asked about moving the rear house forward and Mr. Gilligan said this would take away from the front lot and they do not want to do this. Mr. Stenson said the slope would be less if they did this and Mr. Gilligan said the front lot is at a minimum size and they can’t go into it. Mr. Sigler also was not in favor of flag lots but felt this will work here and agreed the height problem is caused by the slope of the land. Mrs. Vitale did not see what else can be done here and was also in favor of this application.

Mr. Condon was another Board member not agreeable to flag lots but he did not see this as a snowball effect; as long as the Engineer report is complied with and County approval is granted, as well as Fire Company concerns, he had no problem.

At this time Mr. Stenson made a motion to approve this application, as presented, with the stipulation that the Engineer’s report be complied with, the stipulations of the Fire Company done as well as a 6 inch water line with a new hydrant and monument, and County approval being received. This motion was seconded by Mr. Langenberger and approved by the following roll call vote:

Ayes: Thomas Condon, James Harman, James Langenberger, Tim Sigler,
James Stenson, Terre Vitale

Noes: None

As there was no further business to come before the Board, a motion was made by Mrs. Vitale to adjourn, this seconded by Mr. Harman and approved unanimously by the Board, all aye. The meeting was adjourned at 10:15 pm.

Karen S. Brisben, Recording Secretary