www.briellenj.com
A Community by the River

Borough of Brielle, NJ


December 14, 2011

February 08 2011

December 14, 2011

BRIELLE PLANNING BOARD TUESDAY, DECEMBER 14, 2010

The Regular meeting of the Brielle Planning Board was held on Tuesday, December 14, 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 - MayorThomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Tim Sigler, James Stenson

Absent - Thomas Heavey, Terre Vitale

Also present were Michael Rubino, Board Attorney, Dennis Cantoli, Alternate Board Attorney, Alan Hilla, Board Engineer and Karen S. Brisben, Recording Secretary. There were approximately 25.people in-the audience. , r

Chairman Condon 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.

The Minutes of the November 9, 2010 meeting were approved on a motion by Councilman Garruzzo, seconded by Mr. Sigler and approved unanimously by voice vote, all aye.

CORRESPONDENCE:

Last month the Board had received the Coastal Monmouth Plan from the Monmouth County Planning Board, as well as a Resolution supporting this plan; they held off on adopting this Resolution until the Board Engineer had reviewed this plan and Mr. Hilla told the Board he was in support of adopting the enabling Resolution. The following Resolution was then presented for approval:

"WHEREAS, the Coastal Monmouth region of Monmouth County consisting of thirty municipalities generally described as being located south of the Navesink River, north of the Manasquan River and east of the Garden State Parkway, and

WHEREAS, these communities, while each possessing their own unique character, face many similar challenges with regards to economic development, revitalization; open space, environmental quality, affordability, housing and transportation; and

WHEREAS, the Monmouth County Planning Board, with the support of the Coastal Monmouth municipalities, applied for and was awarded a Smart Growth Grant from the N.J. Department of Community Affairs to conduct a comprehensive planning study of the Coastal Monmouth region; and

WHEREAS, the Coastal Monmouth Plan has been completed and provides recommendations on economic development initiatives, open space preservation strategies, environmental conservation, transportation improvements, shared services, housing and other "quality of life" issues which affect those that live, work and recreate in the region; and

WHEREAS, the Brielle Planning Board participated directly in the study as a member of the Coastal Monmouth Plan Collaborative and provided its municipal vision and contributed to the regional vision,

NOW, THEREFORE BE IT RESOLVED that the Planning Board of the Borough of Brielle supports the submission. of the adopted Coastal Monmouth Plan to the N.J. State Planning Commission for consideration for Plan Endorsement purposes."

A motion to accept the above Resolution ,was made by Councilman Garruzzo, seconded by Mr:' Stenson .and approved by the following vote:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Tim Sigler, James Stenson

Noes: None
Mrs. Brisben said she will send the above Resolution to the Monmouth County Planning Board.

The Board also received the November issue of the N.J. Planner and on file in the Board office: Monmouth County Planning Board 2009 Annual Report.

OLD BUSINESS:
The Board then turned to the approval of a Resolution for variance relief for Block 14.01, Lot 2, 404 South Street, owned by Robert and Rene Paturzo, to allow the construction of a pool, patio & fence.

All Board members, as well as the applicants, had received a draft Resolution and, as there were no changes or recommendations, the following was presented for approval:

"WHEREAS, the Planning Board of the Borough of Brieile, County'of Monmouth and State of New Jersey has before it an ,application for variance approval for Robert & Rene Paturzo for premises known as.404 South Street, Block 14.01, Lot 2,; in the Borough of Brielle, and the applicant asking for permission to construct a pool within 6 feet of the rear line of the property adjacent to Lot 1 and to locate the filter 25 feet from the Harris Avenue right-of-way where 30 feet is required and also a proposed patio 3 feet from the lot line where 5 feet is required, and the Board having reviewed a variance package, including a survey of the property prepared by Charles O'Malley, PLS dated , July 9, 2010, which depicted the proposed installation of the pool; and the applicant having submitted the aforementioned variance application and the Board having held an open public hearing on the matter on November 9, 2010 and at that time listed to the testimony offered on behalf of.the applicant, 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 arid 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 applicants filed a request,to install a pool on their property opposite the South Street front of the premises. The. lotis a corner lot which fronts both Harris Avenue and South Street. Asa corrier.lot, the lot loses substantial amount of usable space and as suchlhe applicants only have approximately a 14 foot envelope to put a pool into.
2. The Board is satisfied after listening to thelestimony offered:pn. behalf.of the applicants and looking at the variance plans`'sf bmitted that there_is.limited room in the rear of the yard to develop a pool. The Board finds that-being a seashore area, a pool is not uncommon and is often Used as accessory uses to homes. In the present circumstance because of theyimited nature of the usable rear yard area as a result of the home being constructed on a corner lot, the Board does find that there is a hardship presented .t5 the applicant, as the home has already been developed on the lot and it is Ia if illy on the lot. Therefore, the Board does find a hardship exists at the properly. It should also be noted that the existing house is set at an odd angle to the'street and adds to the applicant's problem. Additionally, the Board finds that the overall size of the pool is not unusual and the Board finds that a filter and patio are not unreasonably placed nor of an unreasonable size. Therefore, the Board finds that it can grant the relief requested.

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:

1. The Board finds that by reason of an extraordinary and exceptional situation that uniquely-affects the subject property-and the structure which exists lawfully thereorr, the strict application of the aforementioned regulations would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the applicant.
2. 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.
3. 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.

WHEREFORE BE IT RESOLVED, that the Planning Board of the Borough of Brielle, County of Monmouth and State of New Jersey, does hereby grant Variance Approval to allow construction of pool with patio within 6 feet of the rear line of the property adjacent to Lot I and locate the filter 25 feet from the Harris Avenue right-ofway, where 30 feet is required and also a patio 3 feet from the lot fine where 5 feet is required for Robert and Rene Paturzo for premises known as Lot 2, Block 14.01, 404 South Street. The maps cannot be signed until conditions 4 through 6 are met:

GENERAL CONDITIONS

1. Subject to the development here at issue being undertaken in accordance with the testimony presented to the Board and the plans submitted to/approved by the Board.
2. Subject to the testimony of all witnesses called on behalf of the applicant being true and accurate.
3. Subject to the application, all attachments thereto, and all exhibits offered by the applicant being accurate depictions of that which they purport to rep resent.
4. The Applicant shall furnish proof that taxes have been paid through the
current quarter and through the quarter in which they receive their initial
construction permit.
5. Subject to the applicant paying in full all application fees, review fees, engineering and consulting fees, and escrows. Subject to the applicant posting deposits for the required engineering and inspection fees, in amounts fixed by the Board and/or Borough Engineer.
6. Subject to the applicant obtaining and complying with the approval of any other reviewing agency having jurisdiction over the improvement of the property as proposed under this project, including but not limited to the Board of Health, the Borough Engineer, the Borough Fire Official, and any County, State or Federal agency; provided, however, that in the event that any other

agency or authority shall require any changes in the plans herein approved, then any such changes must be submitted to the Board for review and approval. Further, if another governmental agency grants a waiver or variance of a regulation, which same affects this approval or any condition attached hereto, or otherwise requires any changes in the plans herein approved, then this matter shall be brought back before the Board for review of any such action, and the Board shall have the right to modify this approval and/or the conditions attached hereto.

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 that steps also be taken as may be deemed necessary by the Borough 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 Councilman Garruzzo, seconded by Mr. Harman and approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Tim Sigler, James Stenson

Noes: None
The Board then turned to the approval of a Resolution for Block 21.01, Lot 43, 640 Woodland Avenue, owned by Deborah King, ruling that lot is an isolated, preexisting nonconforming lot that is not subject to Doctrine of Merger with Lot 44.

As all Board members, as well as the applicant and her attorney, had received a draft copy and there were two minor changes made and all was in order, the following Resolution was presented for approval:
"WHEREAS, the Planning Board of the Borough of Brielle, County of Monmouth, State of New Jersey has before it an application by Debra King for premises known as 640 & 642 Woodland Avenue, Block 21.01, Lot 43 & 44, challenging the ruling of the Borough Zoning Officer that there was a merger of lots 43 & 44 by the conflict zoning officer letter of September 2, 2010, and the Board having received a-memorandum on behalf of the applicant by Michael Wenning, Esq. and Mr. Wenning appearing before the Board on Ms. King's behalf and at the time the Board, having listened to the testimony offered on behalf of the applicant and objectors testimony and evidence in

support of the application and the Board having held a hearing on November 9, 2010, 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 conflict Zoning Officer of the Borough issued a letter dated September 2, 2010 stating that after review of a zoning permit application requesting determination that Lot 43 in Block 21.01 is a pre-existing non-conforming lot-which is separate and distinct from Lot 44, Block 21.01, the Zoning Officer denied said request based upon review of the following:
2. It appears that the pertinent deed in conveying title from Catherine Kenney to Norman Kenney was dated April 14, 1979. At that time the deed was acknowledged by James DuPlessis, an attorney in the State of New Jersey who practiced in the Borough of Brielle. The acknowledgement clause was also dated April 14, 1979. That deed was not recorded until November 8, 1979.
3. Mr. Ratz, the zoning officer, made the determination that the recording date of the deed was the transfer date not the date of the deed or the date of the acknowledgement. Interestingly, the Zoning Ordinance was passed in May of 1979 changing the required lot size to 7,500 square feet. The previous Ordinance number 255 required a minimum lot size of 50 square feet with a 150 foot depth, which this lot met. The lot, therefore, was a conforming lot under the prior Ordinance.
4. At the hearing the applicant recited above and also for argument the acknowledgement clause on the deed stated that on April 14, 1979 the said Catherine Kenney appeared before the said Mr. James DuPlessis, Jr., the attorney, and the clause stated that she was the person named in and executed the instrument and thereupon acknowledged that she signed, sealed and delivered these things as her act and deed for the purposes thereof.
5. In H.K. vs. Department of Human Services, 184 N.J. 367.205 the Supreme Court of the State of New Jersey stated that the ownership of real property is transferred by deed pursuant to N.J.S.A. 46:3-13. Transfer of real property interest by deed is complete upon execution and delivery of-the deed by the grantor,and acceptance of the deed by the grantee. `In'other words, the, deed transferred proper interest upon delivery. The deed does not need to be recorded therefore in order to pass title.

6. At the hearing, the Board listened to testimony offered on behalf of the applicant that she knew and related to the parties in question and that there was a concern of her family that the Borough was going to change the Zoning Ordinances related to the property and that she recalls conversations that they were going to get an attorney to protect their property interest. The Board accepts this testimony as true.
7. The Board is therefore satisfied that, pursuant to the existing case law, that there was an intent to transfer the property prior to the Ordinance; that there was a deed that was signed, executed, delivered and accepted prior to the Ordinance and that for reasons unknown at this time the deed was not recorded until after the Ordinance went into effect. As the Board finds that there was adequate delivery and acceptance of the deed and that the deed was in fact signed and acknowledged properly that the transfer was effective as of April 14, 1979. Therefore, the Board finds that there is no merger of Lots 43 and 44 in Block 21.01.

WHEREFORE, BE IT RESOLVED that the Planning Board of the Borough of Brielle, County of Monmouth, State of New Jersey, does hereby resolve by Resolution that Lot 43, Block 21.01 and Lot 44, Block 21.01 are two separate and distinct lots not merged by operational law."

A motion to accept the above Resolution was made by Mr. Langenberger, seconded by Mr. Stenson and approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Tim Sigler, James Stenson

Noes: None
The last Resolution to be considered for approval was for Block 107.01, Lot 7, known as 1104 Shore Drive, owned by Michael Moretti, to allow construction of retaining walls that will change elevations up to 7 feet. As all Board members, as well as the applicant, had received a draft copy 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, State of New Jersey has before it an application for a zoning permit/variance approval to allow construction of an in-ground pool with patio, hot tub, and a series of retaining walls, and to relocate an existing shed at the rear of the property; said application was denied by the Zoning Officer because a change in the grade is necessary and whereas the proposed plans call for the construction of retaining walls that facilitate grades up to 7 feet and the Board finding the variances needed for Michael Moretti for premises

known as 31104 Shore Drive; Block 107:01, Lot 7, in the Borough of Brielle; and the applicant having submitted a grading:plan prepared by Michael L. Jurist, RE., dated August 31, 2009 and the applicant having appeared before the Board on November 9, 2010 and at that time the Board having listened to the testimony offered on behalf of the applicant; 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, Low 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, Michael Moretti, owns the premises at 1104 Shore Drive in the Borough of Brielle. He has requested permission to construct an in-ground pool with patio, hot tub and a series of retaining walls and to relocate the existing shed to the rear of the yard which is located at the referenced property.
2. The Board finds that the location of the pool, patio and hot tub, are all within the proper setbacks and coverage allowed by the Borough, however, as the applicant is changing grade by more than 2 feet he.needs a variance to do so, pursuant to Code Section 21-9.16 which requires Board approval for elevation changes of more than 2 feet.
3. The Board finds that the existing yard steps and staircases are broken and in need of repair and the change in landscaping and grading will improve the safety to the rear of the house along with its appearance. The Board, therefore, finds that the grade change is not only necessary but will be an improvement to the existing condition at the premises.
4. The Board finds that the application could be justified either under the C-1 or C-2 sections of the Statute and that there is a hardship at the property and the improvement will be a benefit to the area as a whole under the CV-2 section of the Statute. Further, the Board finds that there will be absolutely no determent to the area as a result of the grade change; in fact it will be an improvement to the area. In addition thereto, there will be no impairment of the intent of Zoning Ordinance or the Master Plan of the Borough. For these reasons the Board finds that the application can be granted. The approval will be subject to final permits being issued.

WHEREFORE, BE IT RESOLVED by the Planning Board of the Borough of Brielle does hereby grant variance approval to. allow construction of an in-ground pool with patio, hot tub and a series of retaining walls, and to relocate an existing shed at the rear of the property for Michael Moretti for premises known as 1104 Shore Drive, Block 107.01, Lot 7. The maps cannot be signed until conditions 4 through 6 are met:

GENERAL CONDITIONS

1. Subject to the development here at issue being undertaken in accordance with the testimony presented to the Board and the plans submitted to/approved by the Board.
2. Subject to the testimony of all witnesses called on behalf of the applicant being true and accurate.
3. Subject to the application, all attachments thereto, and all exhibits offered by the applicant being accurate depictions of that which they purport to represent.
4. The Applicant shall furnish proof that taxes have been paid through the current quarter and through the quarter in which they receive their initial construction permit.
5. Subject to the applicant paying in full all application fees, review fees, engineering and consulting fees, and escrows. Subject to the applicant posting deposits for the required engineering and inspection fees, in amounts fixed by the Board and/or Borough Engineer.
6. Subject to the applicant obtaining and complying with the approval of any other reviewing agency having jurisdiction over the improvement of the property as proposed under this project, including but not limited to the Board of Health, the Borough Engineer, the Borough Fire Offici8al, and any County, State or Federal agency; provided, however, that in the event that any other agency or authority shall require any changes in the plans herein approved, then any such changes must be submitted to the Board for review and approval. Further, if another governmental agency grants a waiver or variance of a regulation, which same affects this approval or any condition attached hereto, or otherwise requires any changes in the plans herein approved, then this matter shall be brought back before the Board for review of any such action, and the Board shall have the right to modify this approval and/or the conditions attached hereto.

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 that steps also be taken as may be deemed necessary by the Borough 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. Langenberger, seconded by Mr. Stenson and approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Tim Sigler, James Stenson

Noes: None

The Board then turned to the continuation of a hearing for the Sand Bar Restaurant request for waiver of condition #4 on Resolution dated May 9, 1995.

Before this hearing started, Councilman Garruzzo recused himself and left the dais. Mr. Gregory Vella, Esq. came forward and said that all testimony has been given, they are here for a waiver to allow 7 tables, 4 seats each, on the west deck to have food served. The Council hears the application for liquor, they are here for food at this time. The public has been heard from, some for and some against; his client has listened to their complaints and has a compromise to the adjoining owners of his restaurant. The main complaints were smoking outside on this deck and noise from talking, so they propose to make the entire west deck a non-smoking area. They do not want to be serving food with people smoking in this area; while this does not solve the problem of talking in the evening, it will cause people to leave the area to smoke. This condition will carry from the opening to closing and there will be signs to state this; Mr. Vella noted this will include the steps leading to the deck as well. This will take people away from this area and put them more towards the docks or to the roadway, something that is not done now. He said there will be signs as well as security patrol and they felt this will be a benefit to the entire area.
He reminded the Board that the Sand Bar does not use speakers to announce tables are ready, the restaurant uses vibrating beepers. There are a lot of restaurants in this part of town so if people do not want to wait they can go to other places; he emphasized the tables will be done and cleared by 11:00 pm on weekends, from 8:00 am. to 11:00 p.m. from Father's Day to Labor Day and there will be no live music or speakers. He did note they needed a variance for parking but there are other places in this area that have outside eating, this is considered "restaurant row". Most people now take taxis or bike to these areas and these 28 seats will be a convenience for people already in this part of town. Mr. Vella said this will not generate any more traffic_ Right now the west deck is a smoking area and this can be improved by approval of their plan, he stated Mr. DeCresce will do everything he said he will do.

Mr.'Stenson agreed that somecemplained about the srnoking'but almost all the complainants spoke of the noise issue. Mr. Vella felt that most of the talking was done by people outside having a cigarette. Mr. DeCresce spoke and said that most of the complaints are about late evening and by;eliminating this smoking area and closing the west deck, this should be under control. Mr. Stenson still felt there will be noise but Mr. DeCresce argued that the 20-25 people that may be out in this area will not be there but in another location if his plan is approved. Mr. Harman agreed with Mr. Stenson and did

not see how the noise can be controlled, it usually starts after 11:00 p.m. Mr. DeCresce said that when the tables are rolled up and seats are taken away and signs up that say the area is closed, as well as door people enforcing this closure, people will be kept away, he has seen it done in other restaurants.
Mr. Sarnasi asked if the public is allowed on the dock as it was stated they can smoke out there and Mr. DeCresce said yes and smoking is permitted on the dock, it's about 25 feet from the restaurant to the dock, everything below the Sand Bar is public area. Mr. Langenberger said he thought some of the docks are privately owned and Mr. DeCresce said the main dock is open to the public.
Mr. Stenson said there were complaints that, during the summer, you can't even park by your house in this area. Mr. Vella said they were aware of this but another 7 tables is not going to make the traffic worse, this is not a new establishment and this will not be a negative impact. Mr. DeCresce added that he has asked, through the years, where people are coming from and they say Simko's, the River House, etc., they walk from place to place.
Mr. Condon saidliquor out there. He again said they stand by what they say.
Mr. Rubino told the Board if they approve this. it is done and can be opened if there is liquor license approval or' not, if the Board Wants to'condition this on approval from Council then that is different. Mr. Harman asked if the Board can grant them a one year try to see if it works and Mr. Rubino said yes the Board can grant a variance for time periods. Mr. Vella said they have no problem with approval for one year only and they will come back in November of 2011 for approval again. If this does not work out then it can be denied for the next year but they felt this will provide benefits to the residents that are not there now; Mr. Rubino agreed this is an unusual situation and Mr. Condon felt this may open Pandora's Box.
The Board then gave their opinions - Mr. Stenson had a problem due to the fact that Mr. DeCresce purchased this property knowing outside dining can't be done. He was sympathetic but did not think the noise can be kept down and will be difficult to control. Mr. Langenberger felt the new proposal was a definite plus but the down side is the restaurant is right next to the condos; he would be negative on this application. Mr. Harman felt the whole area here has changed and is more competitive, there is a supply and demand issue now and he did not want to stand in the way of expanding a business. He liked the idea of barricading the area off, he frequents the area here and would be in favor of it even though he, too, had concerns with the policing after 11:00 p.m.

Mr. Sarnasi agreed there are many bars here and noise is a factor; he felt closing the tables down and having no smoking will not make the situation worse or better than what it is now, he did not have a problem with the application. Mr. Sigler felt it was a bad situation now and he would not vote for it. Mayor Nicol felt there was too much noise, traffic, etc. and he would be against it. Mr. Condon said a lot of restaurants here have outside dining but there are homeowners right next to this deck and that is the difference; parking is a problem, he was there on Saturday and couldn't find a spot, he did not think the parking can be controlled. He would vote no on this.

As this time Mr. Langenberger made a motion to deny this application, this seconded by Mr. Sigler and this denial was approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Thomas Condon, James Langenberger, Tim Sigler, James Stenson

Noes: James Harman, Charles Sarnasi

Councilman: Garruzzo returned to the dais so the Board turned to the continuation of a hearing fora Minor Subdivision for Block 48.01, Lots 9, 9.01, 10 & 10.01, 314 % & 316 % Fisk Avenue, owned by Michael Vesuvio. As testimony had been completed by the applicant,. Mr:Tim :Middleton, Esq. came forward for Nancy Bolles, an objector to the application. He asked to proceed this evening and have his Planner give testimony. At this time Mr. Joe Kociuba came forward and was sworn in, he is a Licensed Professional Engineer.and Planner, with- a Bachelor of Science degree in Civil Engineering.and'wMasters.Degree in''Structural Engineering. He has testified before Boards in the area, Wall, Howell, Lakewood, etc. The Board accepted him as an expert witness.

He was familiar with the application, the Brielle Master Plan and the neighborhood as well as the zoning. He felt the testimony provided by the applicant does not prove positive criteria. In regards to the C-1 criteria, the statement was made that the owner purchased this property with the belief that they were two lots. The Land Use Law talks about uniquely affected property and that undue hardship applies to the property itself, not personal ownership.

Mr. Felicetta asked Mr. Middleton if Mr. Kociuba was testifying as a Planner and not an attorney and Mr. Middleton said yes.. Mr. Kociuba said the ownership issue was not a hardship. Also, because there are riparian rights they cannot be utilized as this is water and not land.. Mr. Middleton spoke and said that the C-2 criteria relates to
substantive benefits to zoning. The Planner for the applicant said that the zoning will promote appropriate populations densities and used the "Kauffman" case law - he asked Mr. Kociuba if he agreed with this. Mr. Kociuba then presented what was now marked as Exhibit 0-3, an exhibit that shows the difference between the Kauffman

Case and this case. There was a question as to him qualified to speak on this and Mr. Cantoli said he can testify as to the understanding on this issue.

Mr. Kociuba said the Kauffman case was for a minor subdivision that required variances for lot width, that property was undersized in width but a very deep property so the appropriate population density applied here. The requirement is 2.18 units per acre and they were proposing 1.26 so the Court overturned the Township of Warren's denial. The lots in this application before the Board will both be nonconforming which makes a proposed density of 6.24 units per acre where 3.87 is permitted. Therefore, to apply the Kauffman case here does not work.

Another argument was that one large home will be less desirable than two smaller homes, that two'homes would be less of an:impact. Mr. Kociuba,referred to Exhibit A-18 which shows a significant lot coverage variance requested.. He spoke of the Kauffman Case again and said that does not speak about the size of the homes but the size of the lots. Mr. Middleton said Exhibit A-14 showed one large home and two smaller ones; he asked if people-would drive to this part of Fisk Avenue to see the water views and Mr. Kociuba said no, there would be no vistas to encourage public viewing. Mr, Felicetta made an objection and Mr. Middleton answered him; Mr. Cantoli then told Mr: Middleton that he is the one to'make a determination on objections, not Mr. Middleton and Mr. Middleton apologized and said he was right.

Mr. Middleton then asked Mr. Kociuba what kind of home can be built here with 20% coverage and the answer was one that would be about 2,700 square feet in total; the application is asking for approximately 3,500 square feet, about 800 square feet over.
Mr. Cantoli commented that Mr. Kociuba was accurate that the Kauffman case was on densities but the C-2 variance criteria also refers to improving the zoning and planning in a community. Mr. Kociuba agreed and said he used the details of the case to show the differences.

Mr. Middleton then asked about light, air and open space here and Mr. Kociuba felt two large homes here would be negative to light, air and open space, more than one home. He also was not aware of any subdivision in Brielle that had no street frontage, the Ordinance requires a lot to front on a public street and address emergency access, the Fire Code requires a 20 foot right-of-way. Mr. Felicetta said they have already been over this and Mr. Cantoli agreed; this is a recommendation and not law. Mr. Kociuba countered with the comment he did not feel there was adequate access to this back property. Mr. Middleton asked how many feet to the proposed home from Fisk Avenue and the answer was approximately 170 feet and the existing home looks like about 230 feet from Fisk Avenue. Mr. Kociuba said there are adjacent structures along this easement and he again stated a 16 foot wide easement is inadequate.

Mr. Middleton then asked about an analysis on the negative criteria; Mr. Kociuba noted the variances requested, there were several and very little positive criteria was given on this in the applicant's testimony, the information presented was on the subdivision only and not on all the additional variances. He then spoke on the lots being commensurate with the neighborhood; the total area used in the applicant's testimony covered about 9.9 acres which equates to 2.9 units per acre where 3.8 units per acre is the criteria; the density of this application's proposed lots will be 6.24 units per acre or more than twice of what there is now.

Mr. Middleton then presented a tax map analysis from the year 1953, which was marked as Exhibit 0-4. Mr. Kociuba said he chose this map as the Planning Board was established in 1958 and what he was looking for was a baseline of the area versus what lots are there today: The lots on that map were all-:similar, 50 x 150 feet and this establishes that a number of lots :combined over the years and the area has tried to become more conforming to the requirements that exist now.

Mr. Middleton asked him, as an Engineer, if he has=any concerns on drainage, CAFRA, etc. and Mr. Kociuba said he had concerns regarding the Flood Hazard Area Rules which require a new permit from DEP. He saw no.testimony that these requirements were met. Mr. Cahtoli told him the Planning Board makes its own determination and does not have to be concerned,with DEP, that is the applicant's obligation and problem; the Board acts on its own merit. Mr. Kociuba said he just wanted to state what the DEP will be looking for.

Mr. Felicetta spoke and said the positive criteria was done at length, the purposes are part of the Municipal Land Use Law; Mr. Kociuba agreed they are. Mr. Felicetta commented on his statement that no one would want to look at the Glimmer Glass in this location but asked "would not the neighbors want to?" Mr. Kociuba said yes, but the Bolles home would not be affected by this. Mr. Felicetta countered with the statement made that one larger home would be better as far as light, air and open space and Mr. Kociuba said there would not be any increase in light, air and open space if there is no more volume of the structure, there will be more volume with two smaller homes. Mr. Felicetta asked if he had looked at.the property next to these lots and the answer was yes; Mr. Felicetta then said that there are 11 undersized lots today within 200 feet of this property. Mr. Kociuba agreed and said there are 18 lots that comply. Mr. Felicetta asked if he was aware that Block 48.01, Lot 7 does not meet the front requirements and Mr. Kociuba said that previously was a street that was vacated so it now does not comply. Mr. Felicetta said that the lot their client, Ms. Bolles, owns does not meet the requirements and Mr. Kociuba agreed she had a 50 foot wide lot. Mr. Felicetta noted that is the same they are asking for and there were other lots named that do not have adequate width.

Mr. Felicetta then asked about the easement on the land and if Mr. Kociuba had reviewed the International Fire Code and the answer was yes; Mr. Felicetta then said

these lots are exempt as there are less than 3 homes proposed and Mr. Kociuba said he did not know about this ruling, he did not see that in the Code.

At this time the Chairman stepped in as the 45 minute allotted time frame was done, so this hearing will be continued again on January 11, 2011; he hoped to wrap this application in January.

At this time the Board took a 5 minute recess, from 8:55 p.m. to 9:00 p.m. NEW BUSINESS:
When the Board reconvened they turned to an application for a variance for Block 105, Lot 8, 1022 Riverview Drive (also known as 1000 Shore Drive), owned by Mark & Danielle Gatanis, to allow reconstruction and expansion of the existing masonry patio deck with wall. Side Setback - 12 feet required, 8 feet proposed (& partially existing due to recent construction without permits), 4 foot variance requested.

The fee of $300 was paid, taxes are paid to date and the newspaper as well as property owners within 200 feet were properly notified.

Mr. •MarkGatanis came and was sworn in. He has lived in this property for 4 years and said there "is and was", a rear masonry patio 3-3.5 feet above grade; he had a sketch of the proposed deck and,said there are two accesses to the patio. Back in April or May atree fell on this patio, it was a neighbor's tree. The insurance company came out and lookedlat the crumbled wall that was teetering so he got it fixed. He has three children and did not want them out there when it was in bad condition.

Then his concrete slab starting to lose grade, the rebar was bent and the contractor came in to rebuild the wall while Mr. Gatanis was away working in New York City. Without removing the existing footing, he fixed the elevated masonry patio, it was a lot of work due to a fallen tree. But now everything has come to a stop, there is a difference between the new wall and the old wall and he now needs a variance. He wants this wall also as a buffer and is flexible as to its design and stated there will be no change in the existing elevation or drainage, the proposed wall will help runoff better and will direct it towards the garden and far right rear of his home.

Mr. Condon asked about the help with the runoff and if there was a problem now and Mr. Gatanis said no as he has gutters on his home. Mr-. Langenberger commented that on previous occasions he had been told to go up.there due to runoff from the driveway side and the neighbor had to put up a berm. Mr. Gatanis corrected this and said, for the record, it was his landscaper that put in that berm; he is at the bottom of a hill and water comes down Riverview Drive to him and then his neighbor, Gary Pstrak who is lower than he is. Mr. Langenberger asked who the evergreens that are there belong to and the answer was Mr. Pstrak. Mr. Gatanis said the County (Riverview Drive

is a County. road) actually had to•put a patch on Riverview Drive due to the water runoff problem; his landscaper helped.

Mr. Rubino was confused as to why Mr. Gatanis was even before the Board and Mr. Gatanis said that after the tree fell he had to have the wall rebuilt. Mr. Hills spoke up and explained that Mr. Gatanis had the wall done without permits, when the wall was destroyed it was a clear variance that was created. Mr. Rubino asked why it was done this way, did Mr. Gatanis need the extra feet and he said it was more economical for him to keep it this way, if the rebar was removed, it will compromise the area; Mr. Hilla agreed with this statement.

As Mr..Gatanis was through with his testimony, the hearing was opened to the public for questions and Mr. Gary Pstrak came forward and was sworn in, his address is 1020 Riverview Drive, he is the next door neighbor. The only question he had is how will Mr. Gatanis prevent water from coming onto his property, he has a dry basement and wants to keep it that way. Mr. Gatanis said this is part of the variance application; he will continue the tree buffer or put up something they agree on and putting up a wall will lessen the impact of water here. The water will be guided to his garden and other side.

Mayor Nicol thought there was an Ordinance on this and Mr. Hilla said there was but it applies to areas 500 feet or more. Mr. Gatanis explained this is now existing and Mr. Hilla said the Board cannot request a grading plan as this is less than 500 feet; Mr. Rubino felt the Board could still request one if they want to. Mr. Hilla said one of the conditions of the Ordinance is that is any proposed measures do not work, more requirements will be made, there is jurisdiction for this; a grading plan would require continuing jurisdiction. Mr. Gatanis said this area is really an alley way but Mr. Rubino said the Board could still ask for a plan.

As there were no further questions, that portion of the hearing was closed. Mr. Langenberger commented that Mr. Gatanis is an Engineer and wanted to know how Mr. Gatanis could give a blank okay to his contractor to do whatever he wanted to do, he told Mr. Gatanis he knew he was violating the side yard setback. Mr. Gatanis said he used the builder who built this new house. Mr. Langenberger said he was called due to runoff and he could not understand how this could be let go; Mr. Gatanis said he was very busy working on the tunnels in the city and was not around a lot of the summer and he felt there was a desperate need to get it done.

Mr. Harman asked Mr. Gatanis what his profession actually is and the answer was an architect. Mr. Harman then stated he went 4 feet over what was allowed and he couldn't believe that Mr. Gatanis, as an architect, could do this. Mr. Gatanis said the 4 feet is at the most, it goes as low as 2.8 fora larger-portion of the wail.

Mr. Rubino spoke to the Board and explained that every once in a while there is an error of doing work without a permit, but the Board has to look at the application itself; his legal burden is to prove his case to the Board just as if it's not there yet and will be built in the future. The Board has to find something in the C-2 Statute, the fact that it is already there does not count in legal issues.

Mr. Sarnasi felt if he were to take it out now it would be a lot more disruptive and he felt more landscaping and berm makes common sense to do. Mr. Sigler asked if he could not just drill anchor rebar in and Mr. Gatanis said the footings are no longer savable at this point due to the tree failing on it.

At this time the hearing was opened to the public for questions or general comments and Barbara Duska of 1023 Riverview Drive came forward and was sworn in. She was here in support of the height of the patio but noted there is no railing there. She felt Mr. Gatanis had a right for this but her concern was for Mr. Pstrak and the encroachment and she wanted to know if the patio is legal. Mr. Hilla said he believed a survey was submitted and Mr. Gatanis offered that there is no final on it; Mr. Rubino said They can require him to submit an "as-built" plan. Mr. Gatanis said the only thing pending with Mr. Ratz for a final CO is the rear patio, he has to put in railing and he was not sure of what he was putting in. Mr. Langenberger wanted to know how he can live in4the home without a CO and Mr. Gatanis said he had a temporary CO. Ms. Duska spoke again and was concerned about the runoff and why the patio is so high, she just wanted to see it done properly. Mr. Hilla said he was not involved with the permits for this, the Construction Code Official Mr. Ratz was so he has not gotten into it.

Mr. Rubino felt the Board should have something to show them and it may be better served if they had more information. Mr. Gatanis said the only final as-built is the survey. Mr. Condon noted the rear patio is not finished, there is no railing and no final CO, testimony has been given that the contractor just did this on his own; he agreed that something more informative should be seen by the Board. Mr. Gatanis said this area now is very unsafe, the wall fell in April or May of 2010; Mr. Condon countered with the comment that he has owned the home for 4 years and could have gotten a final CO. Mr. Gatanis said he went through a 3 year divorce and the house sat stagnant for a long time. Mr. Rubino said he would like to see a survey so the Board knows what it will be voting on; Mr. Condon agreed that a sealed survey should be submitted showing the property and the patio in question and he-asked for a motion to carry this until the proper documentation is provided.
Mr. Gatanis was concerned about ice and snow, water will be collecting here like a dam. Mr. Hilla did not know what the conditions were like back there and did not know of any provisions on this in Brielle's Ordinances. Mr. Langenberger still felt the Board needed the information and made a motion to carry this hearing, this was seconded by Mr. Harman and approved by voice vote, all aye. Mr. Condon said this hearing will be carried to the January 11, 2011 meeting without further notice to the

public; if this information can't be to the Board by then, the hearing will be carried until it is provided and the public will be notified when it will be on the agenda.

The last item for the Board was an application for a Minor Subdivision for Block 43.01, Lot 6, 304 Union Lane, owned by Robert & Angie Cardin, Front Yards MUST face a 50 foot right-of-way, proposed lot 16.02 does not face a 50 foot right-of-way, 28.13 feet proposed, a 21.87 foot variance requested. Impervious coverage not clear on plans, 49.09% proposed, plans appear to depict greater than maximum of 50%. Accessory Structure Height - 18 feet allowed, 19.6 feet existing & proposed, 1.6 foot variance requested; also consideration of limiting use of 1/2 story above garage.

Before this hearing started, Mr. Sigler stepped off the dais and recused himself as he lives within 200 feet of this property. The fee of $1,300 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 asked Angie Cardin to come forward and be sworn in.

Mrs. Cardin said she has owned the home since 8111177, it's a large old home built in 1820 and is on a large lot, maintaining the house is expensive. The present use is multi family and there are two tenants and them; they get licensed by the State every 5 years and she intends on giving up those uses if the subdivision goes through. They would like to subdivide and use the home for themselves. The garage on this property was an old horse barn and over the top of this garage is a room with windows but there is no heat, water or bathroom; they plan to reduce the size of the garage to bring it more into conformity. They hope to sell the lot but they don't know what will happen with the market as it is today. They spoke to Charles Gilligan about what kind of home to build that would fit in the area and she had a photo of a home as an example. Mr. Rubino marked this combined photo of suggested proposed houses as Exhibit A-1. Mrs. Cardin said the home would be a three story one that matches the area and one of the homes she is considering has a three-car garage.

Mr. Rupp asked about the present tenants and Mrs. Cardin said she has had the same one since 2007 and the other tenant left and, as she wanted to do the subdivision, she has not let out that unit, so now there is only tenant in the property. She did not know what to do with that tenant is this subdivision goes through and Mr. Rubino explained to her that there is a 190 day period to perfect the subdivision but the Board is able to give extensions if needed. Mr. Hilla noted that the demolition of the garage has to be done as well.

Mr. Rubino said that, while Mrs. Cardin submitted a couple of homes to look at, if the lot is sold a buyer may want to put up something else - he asked if she would object to a condition that any honie;built here will have to comply. Mr. Hilla said that the footprint of the lot coverage is what counts and he was confident this can be worked out.

At this time the hearing was opened for questions to Mrs. Cardin and James Madison of Homestead Road came forward and was sworn in. He asked what the new address be of the new location, would it be Homestead Road? Mr. Langenberger answered that it would be; Mr. Madison then asked if this will put another driveway on Homestead Road and Mrs. Cardin said yes, there are two existing driveways on this property now and one is from Homestead Road. Mr. Madison said he was concerned about traffic in this area. As there were no more questions from the public, that portion was closed.

Mr. Langenberger knew about a 100 foot deep well in the back of this lot and said the Cardins will be responsible for filling this in if the subdivision goes through. Mrs. Cardin said the well will still be on their side, the home they are keeping for themselves. Mr. Rupp commented that the Tax Assessor, Mary Lou Hartman, stated in her report that the lots are not numbered correctly and will have to be renumbered; one lot will have an address of Homestead Road. Mr. Stenson asked Mrs. Cardin which driveway do they use and she said the one from Homestead Road and also from Union Lane.
At this time Mr. Charles•Gilligan, Engineer and Planner came forward and was
sworn in. He has been before this, Board many times and the Board accepted him as
arrexpert witness. Mr. Rupp asked that two exhibits be marked, one as A-2 and one as A-3. Mr. Gilligan went to sheet 4 of 4, Exhibit A-2 which shows the highlighted part of the garage that will be made smaller, it may even be demolished, but folenew they are going to remove the wings on either side, so there will be a one-car garage as well as one other space and then two more spaces for the other lot, actually a total of 6 cars can be put on this lot if they are piggybacked. There are two driveways and 30,665 square feet that will be divided into two lots; the two apartments will be given up. One lot will be 21,446 square feet and the other lot will be 9,249 square feet. They need a variance for the limited frontage on Homestead Road but there is plenty of room for the home. A variance is needed for the garage due to the "wings" on the sides and they plan to remove these wings.
Mr. Gilligan then briefly went over Mr. Hilla's report; the variance needs were just explained - Mr. Gilligan also offered that Homestead Road is only 40 feet wide and 50 feet is required but there is no control over that fact. As far as drainage, they would like to keep the drains on the side yard but Mr. Hilla wants the infiltration system removed and Mr. Gilligan said he will work with him on that. He can provide a 40" perforated pipe which will replace the northern and southern system which is about two times the amount required; he felt it was a safe design. On Mr. Hilla's concern about the impervious surface Mr. Gilligan said this comes to 49% and they have no intentions of going over the 50% maximum allowed. Mr. Hilla said there was confusion on this as to what was staying and what was going. He trusted that Mr. Gilligan's calculations were correct, he just could not come to agree with them.

Mr. Gilligan noted the report spoke of a low point in the driveway on Homestead Road, about 1/2 inch; this was paragraph 5 and Mr. Rubino wanted to know if a stipulation on this should be in the Resolution. Mr. Hilla he wants to see a remedy to this so pooling is not done here, this can be addressed during the permit process and he did not feel it needs to be in the Resolution. On grading Mr. Gilligan said he supplied a drainage calculation, one will pick up the main house and the second system will go back up the driveway, they come together so he felt this was covered. Mr. Rubino wanted to know if this should be a condition in the Resolution or part of the permit process and Mr. Hilla said he would like to see it as a condition in the Resolution; Mr, Gilligan agreed with this. Mr. Hilla asked about the pipe itself and Mr. Gilligan said this can be worked out but the size of the pipes, etc. are important as there are drainage problems on Homestead Road.

Mr. Gilligan said the water and sewer will come off Homestead Road and the lines are there, he felt this subdivision will work well in this neighborhood. He then referred to Exhibit A-3 which shows how the two lots will merge together.

At this time the hearing was opened to the public for questions and Mr. Madison again came forward and wanted confirmation on_the parking here; Mr. Gilligan said
more cars will be able.to,be parked on°this•lot with the subdivision. Mr. Madison said he has never seen cars coming into this property from Homestead Road and now there will be up to 6 cars coming down Homestead Road;. he, asked if that was an excessive amount of extra' cars. Mr:. :Gilligan said right now there are three.families that can use this driveway. Mr. Madison asked when this driveway was originally put in were there 30 homes on Homestead Road and Mr. Gilligan did not think so but assured Mr. Madison there will be more parking on the lots themselves and they are going from 3 residential units to 2.

Mr. Langenberger asked about this lot being subdivided off back around 1970 as it was offered to him then; he lived next door at the time and remembered this lot as being pie shaped. Mr. Gilligan said if there was one done it was never filed.

As there were no other questions to Mr. Gilligan, that portion of the hearing was closed. Mr. Rupp then asked Cheryl Bergarilio, a Licensed Planner, to come forward and be sworn in. She has been before this Board before and has been a Certified Licensed Planner since 1997 and has appeared before Boards in Wall and Spring Lake Heights. The Board accepted her as an expert witness.

She explained they are looking for two variances, one for the front yard being only 28.13 feet wide and the height of the garage. She felt these can be granted under the C-1 and C-2 criteria. The lot is a through lot from Union Lane to Homestead Road. As shown on Exhibit A-4, the project depicted on an aerial map and tax map, dated 1218/10. The applicants can tear down the house and build two new homes on Union

Lane but they are not interested in removing the existing home; there is a 40 foot wide lot on Union Lane, this would meet the front setback and a home could be built in the rear of the lot but that also is not desirable and would be a problem for emergency vehicles. The preferred option is building on a lot with a Homestead Road address with a frontage of only 28.13 feet. If Homestead Road were not sharply bent here there would not be a frontage problem, but this is the best scenario and the access to the home will be a shorter distance with a driveway adequate for access. This will also provide an even appearance down the street and the setback between the lots will be adequate,
Under the C-2 criteria it speaks of promoting proper population density; they are reducing the units from 3 to 2, this is an oversized lot so this will promote a desirable visual environment as well. As far as the garage, they propose to make it a lot more conforming by reducing it as-they want to- keep this garage until the principal structure is built.
The hearing was opened to the public for questions to the Planner and, as there were none, that portion was closed; the Board members had no questions either.

Mr. Rupp asked Mrs. Cardin if they use the Homestead Road driveway and she said yes but right now it is being used by workmen as they have a leaky roof that is being repaired; they use it also for guests.

At this time the hearing was opened to the public for any further questions or general comments and Mr. Madison again came forward. He was concerned about the traffic as there is a lot of pedestrian foot traffic in this area, there were just two new homes built on Homestead Road and this subdivision will go from access from Union Lane to Homestead Road. He likes to walk on this street as he lives at 206 Homestead Road and did not want to see any more parking.
As there were no further comments, that part of the hearing was closed and the Board went into discussion. Mr. Langenberger lived on Homestead Road for many years and felt this subdivision will have less impact that the other subdivisions have had, the street was made a one-way to help alleviate the traffic problems and he would be in favor of the application. Mr. Harman agreed with Mr. Langenberger and did not think there would be 6 more cars at one time coming down Homestead Road; he also was in favor of the application. Mr. Sarnasi noted that no one in those homes will ever have to park on the street due to the large driveways. Mr. Stenson thought the plan was well done and the variances are minimal and he, too, was in favor of this. The rest of the Board members agreed with the comments made, with Mr. Condon stating the only concern he had was the blind spot at that end of Homestead Road.

At this time Mr. Langenberger made a motion to approve this application, as presented, this seconded by Mr. Stenson and approved by the following roll call vote:

Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, James Stenson

Noes: None

As there was no further business to come before the Board, a motion was made by Mr. Harman to adjourn, this seconded by Councilman Garruzzo and approved unanimously by the Board, all aye. The meeting was adjourned at 10:35 pm.
--a-,4/14�
S. Brisben, Recording Secretary Approved:

 

RELATED LINKS