Borough of Brielle, NJ
| February 8, 2011
February 8, 2011
|BRIELLE PLANNING BOARD TUESDAY, FEBRUARY 8, 2011
The Regular meeting of the Brielle Planning Board was held on Tuesday, February 8t", 2011 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, James Langenberger, Charles Sarnasi, Terre Vitale
Absent -- Thomas Heavey, Tim Sigler, James Stenson
Also present were. Michael Rubino, Board Attorney, Dennis Cantoli, Alternate Board Attorney, Claire Odud from Birdsall Engineering and Karen S. Brisben, Recording Secretary. There were approximately 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.
As Councilman Garruzzo was absent at the January Re-organization meeting, he was sworn in at this time for the year 2011.
The Minutes of the January 11, 2011 meeting then were approved on a motion by Mr. Langenberger, seconded by Mr. Sarnasi and approved by voice vote, all aye, with Councilman Garruzzo abstaining.
All Board members received the December/January issue of the N.J. Planner. OLD BUSINESS:
The Board then turned to the approval of a Resolution of Denial for a Minor Subdivision, Block 48.01, Lots 9, 9.01, 10 & 10.01, 314 1/2 & 316 1/2 Fisk Avenue, owned by Michael Vesuvio.
As all Board members, as well as the applicants, had received a draft Resolution and there were no changes or recommendations, the following was presented for approval:
"WHEREAS, Michael Vesuvio (the "applicant"), having a mailing address of 607 Emeral Trail, Martinsville, N.J: 08836, has applied to the Brielle Planning Board (the "Board") for minor site plan, minor subdivision and bulk variances pursuant to N.J.S.A, 40:55D-46,47,50 and 70(c); and
WHEREAS, proof of service as required by law upon appropriate property owners and governmental bodies has been furnished and determined to be in proper order; and
WHEREAS, public hearings were held on June 8, August 10, September 14, October 12, November 9, December 14, 2010 and January 22, 2011 in the Borough Hall, at which time testimony and exhibits were presented on behalf of the applicant and all interested parties having been heard; and
WHEREAS, the Board makes the following factual findings and findings of law:
1. This property is designated as Block 48.01; Lots 9 and 10 on the Borough tax map. It is a single building lot with adjacent riparian grant identified as Lots 9.01 and 10.01.
2. The property is located in the R-3 zone.
3. The property currently contains a single-family dwelling and detached garage on tax Lot 9 and a shed on tax Lot 10. Applicant proposes to subdivide to create two building lots. The existing single-family dwelling on Lot 9 will remain and the shed on Lot 10 will be removed. A new home will be built on new Lot 10. The proposed subdivision creates two undersized lots.
4. The following variances have been applied for:
ITEM REQUIRED EXISTING LOTS9 & 10 COMB. PROPOSEDLOT 9 PROPOSEDLOT 10
Min. Lot 11,250 sf 13,969.78 sf 7,493.53 sf 6,476.25 sf
Area existing proposed proposed
Min. Lot 75 ft. 100 ft. 50 ft. 50 ft.
Width existing proposed proposed
Min. Lot 125 ft. 121.22 ft. 141.57 ft. 122.22 ft.
Depth existing proposed proposed
Min. Front 30 ft. 61.2 ft. 61.2 ft. 20.21 ft.
Yard _ existing existing proposed
Min. Rear 35 ft. 19.26 ft. 19.26 ft. 44.33 ft.
Yard existing existing proposed
Min., Side 10 ft. 6.97 ft. 6.97 ft. (w) 10 ft.
Yard existing existing proposed
Max. Lot 20% 15.41% 26.63% 23.31%
Coverage existing proposed proposed
Max. 35 ft./2.5 34:04 ft.12.5 34.04 ft.12.5 38.33ft.13
BuildingHt./Stories existing existing proposed
AccessorySide Yard 5 ft. 3.06 ft. n!a .. n/a
5. Alan P. Hilia Jr., Planning Board Engineer, prepared areport to. the Board dated April 21-, 2010. The Board adopts the findings in that report and incorporates that document in this Resolution by reference.
6. Sergeant Grant Kitchenmati of the Brielle Police Department prepared a report to the Board dated March 2, 2010. The Board adopts the findings in that report and incorporates that document in this Resolution by reference.
7. Michael Johnston, Jr., Fire Chief of the Brielle Fire Co. No. 1, prepared a report to the Board dated March 23, 1010. The Board adopts the findings in that report and incorporates that document in this Resolution by reference.
8. The following exhibits were marked into evidence:
A-1... Booklet of architectural renderings
A-2... Deed dated July 12, 2004 to applicant, Michael Vesuvio A-3...Title policy from. Coastal Title Agency
A-4...Survey dated July 24, 1985
A-5...Amendment to purchase Contract
A-6...Tax map dated October, 2006
A-7...2008 tax bill
A-9... Montenegro letter
A-10...Metes &.Bounds of driveway easement
A-11....Three (3) letters dated April 8, 2010 to adjoining property owners. A-12...Aerial photograph showing subject property in red A-13...Aerial,map from Google
A-14...Photos from pages 5 and 6 of A-1
A-15...Reproduction of page lof the architectural plans
A-16... Letter from Michael Johnston, Jr.,_ Fire Chief
A-17...Sheet 1 of 1 showing overall site and blowup of lot being developed revised to January 5, 2010
A-18...Minor subdivision plan revised to January 5, 2010
A-19...Letter from the Board Secretary
A-20... Letter to Mr. Hilla dated June 3, 2008
A-21...Letter from Mr. Hilla to the Borough Attorney dated June 13, 2008 A-22... Letter from the Maser Enginee"ring firm to Vesuvio dated June 3, 2004
0-1... Borough of.Brielle Fire Prevention Safety Ordinance 0-2... Easement Agreement
0-3..;Board showing difference between Kaufmann case and subject 0-4...1953 Tax Map
9. Louis A. Felicetta, Esquire, appeared on behalf of the applicant. Timothy B. Middleton, Esquire, 'appeared on behalf of objectors.
10. Mr. Felicetta introduced Christine Cofone to give testimony as a Professional Planner. Ms. Cofone inspected the property in question. She referred to an exhibit showirig other nonconforming properties in the area. Lots colored in blue were under 75 feet in width. There were four lots in this category located next to or near the property. Lot colored in orange were underthe lot area and lot width. There are 13 such lots. The witness calculated that 65% of the lots in the zone are nonconforming.
The witness testified that Variances are needed to create two building lots as well as bulk variances *Jr the location of the proposed home. The height of the home is under-10% in excess of the zoning limitations. Ms.' Cofone focused on the "extraordinary and exceptional situation" language contained in N.J.S.A. 40:55D-2(i) by creating two smaller lots which, in her opinion, are better than one larger lot.
Ms. Cofone then discussed the CO) variance. She stated that the exhibits attached to the application detailed'the steps taken to ascertain the need for the subdivision. She referred to the letter from the Borough's attorney expressing an opinion that a subdivision is not required; a real estate listing; a certification from a prior owner as to the status of the lots; and "an opinion from a title company. She also opined that the large riparian grant associated with this property cannot be used for bulk area calculations and this creates an exceptional situation. The witness contends that all of the above establishes the positive criteria for a C(1) variance.
11. Ms. Cofone introduced Exhibit A-13,,an aerial of the property using Google. The property in question is colored with red and yellow lines. Lots 9 & 10 have a riparian grant associated with it. The riparian grant creates a hardship because it cannot be used in the calculation of the total area of the property. The lots colored yellow on Exhibit A-13 have 50-foot frontages. Most of them are 7,500 square feet. Seventeen of the 29 properties studied have some level of nonconformity. Most of the lots have similar lot areas to that of the
said stands for the proposition that a subdivision should be approved when the proposed subdivided lots are similar in size to existing lots. She said that the proposed subdivision will conform, with the. neighborhood scheme. Only 12 lots on Exhibit A-13 conform with zoning. She found that there will be no substantial detriment to the public, no substantial detriment to the,Master Plan or Zoning Ordinance and that the benefits of approving the subdivision outweigh any detriment. Her opinion is based upon the 'character of the neighborhood. She concluded by stating,that if the property is not subdivided, there is the possibility of having one large house'on the property and, in her opinion; that would have a negative impact on the neighborhood. Ms. Cofone concluded that the application promotes the general welfare as two smaller lots allow for more,light, space: and open air. This is a better zoning alternative
12. Ms Cofone testified that the application requires various bulk variances including setbacks, coverage and the number of stories in the home on proposed Lot 10. The i fitness referred to the letter from the Board's engineer which details the variances required: She finds that there is no substantial detriment caused to the neighborhood because many of the lots in the neighborhood have similar nonconformities.. The proposed home to the constructed on new-Lot 10 conforms to side yard setback requirements. The properties do not have frontage on Fisk Avenue. The property borders on Glimmer Glass, therefore, there are no neighbors to the rear impacted by the project. Other lots in the area were granted variances to allow two smaller homes rather than one large home
The existing 16-foot driveway easement traverses Lot 17 and widens as it gets closer to the subject property. Lot 9 currently gains access to Fisk Avenue by this easement.
The witness was questioned on how two homes allow for greater air, light and open space than one home. The witness stated that the larger house creates a larger mass and, therefore, has more of a visual impact than two smaller homes. She was also questioned on the height of the proposed house. If two conforming houses were built, they would each be no greater than 35 feet high and no more than 2.5 stories. The witness was also questioned about the number of cars using the easement and on lot coverage on other lots in the area. The witness stated that a larger home could have seven bedrooms, thereby having a greater impact than two smaller homes.
13. Ms. Cofone was cross-examined by Timothy Middleton, attorney for the objector. Mr. Middleton questioned the witness on how two smaller houses are better.than one bigger house. Mr. Middleton questioned the witness on the size-and lot coverage of the existing home on the lot as it now exists and the fact that the existing home could be enlarged by 640 square feet and still conform. He asked Ms. Cofone if the lot coverage for the two homes proposed will be greater than the maximum lot coverage on the existing lot. The witness was also questioned about the Kaufman case and was asked if
the decision in Kaufman was based upon population density rather than lot size.' She was also asked about her prior testimony that the confusion regarding the acquisition of the property and the need for a variance at the time that the property was purchased creates a hardship for applicant. With regard to that testimony, Mr. Middleton asked the witness if applicant obtained a certificate pursuant to N.J.S.A. 40:55D-56 which would have confirmed if the lots needed to-be subdivided or if-the property was considered one lot.
14. Richard Graham was introduced to give expert testimony as, q licensed architect in the State of New Jersey. Exhibit A ' was entered into_evidence. This exhibit consists of two'pictures, the first showing the two existing homes on the left side of the photo and a conceptual view of the proposed house on right side. This picture is'taken from Fisk Avenue. The next photo shows a conceptual rendering of a larger home that could. bebuilt across Lots 9 and 10. The witness expressed an opinion that the two smaller homes provide better light, air and visibility than a larger home constructed across both lots. Also On Exhibit A-1 is the site plan showing a footprint of a large concept home that spans across bath lots. This, concept home could be built without the need for any variances. Mr. Graham `stated his opinion that the large concept home is a type of home that is likely to be built if the subdivision is not approved.
15. Exhibit A-14 was introduced. This exhibit consists of photos from pages 5 and 6 of A-1, the architect's booklet. It also has the site plan at the bottom of the exhibit.
home. He also testified that the applicant's proposal is in keeping with the neighborhood.
Upon questioning, it was stated that the first floor has a ceiling height of 8 feet and the second floor a ceiling height of 9 feet. The half-story has a ceiling height of 8 feet or less.
17. The witness was questioned by the Board about a letter received from Michael Johnson, Jr., Fire Chief of the Brielle Fire Company, marked as Exhibit A-16. That letter-expressed concerns. with the proposed development. Mr. Graham stated that he had a conversation with the Fire.Chief. They discussed: the size of the easement and the Fire Chiefs-concern for getting equipment to the site. Mr. Graham said that, as a result of the conversation, it seemed manageable to: get equipment back to the houses. Also discussed was the location of the fire' hydrant near 316. Fisk Avenue; the fire rating for theproposed house; and the 18.91 feet of separation between the:proposed house and the existing house on Lot a
There was further testimony-concerning the easement from Fisk Avenue and whether a 16-foot easement was wide enough or should it be 18 feet, which is the common width of a fire lane. Mr. Graham said he" Was aware of other properties with similar situations. He stated that, if necessary, the proposed house'could be provided with a sprinkler system and materials used to increase the fire rating of the house; A fire hydrant could also be.placed between 314 and 314 % Fisk Avenue.
The,witness was also questioned again about the height of the proposed home.- He stated that the existing house is 34 feet high. He was asked whether the proposed home could be reduced in height. He said that the building itself is not large; it is approximately 2,800 square feet. It consists of three-bedrooms and optional fourth bedroom. The house is built above the flood plain. The floor joists are a few inches about the flood plain. In his opinion, the house architecturally, needs the height. He said that the townhouses across the street are 3 feet above the permitted height and 317 Fisk Avenue is 2 feet above the permitted height.
18. Mr: Middleton cross-examined the witness. Referring to Exhibit A-14, he asked the witness about the footprint. of the existing home. It was determined that the footprint is approximately 2,152 square feet and this constituted lot coverage of 26.63%. He suggested to the witness that 641 square feet could be added to the existing home and still be within the permitted lot coverage. The witness stated that he was more concerned about building orientation and not size: .
19. Upon redirect, Mr. Graham stated that the total square footage for both lots is 13,969 square feet. The maximum permissible lot coverage is 20% or 2,793 square feet at grade- level. A 6,507 square foot house could be built on the property containing a second and third floor. If the lot is subdivided, new Lot 10 will be 6,476.25 square feet. Lot 9 will be 7,493.53 square feet. The proposed home to be built on new Lot 10 is 822 square feet on the first
floor; 1,254 square feet on the_ second floor; and 727 square feet on,the third floor for a total living space of 2,803 square feet. Adding;the garage of 420 square feet to the first floor gives a total square footage of 3,223 square feet. The existing house on Lot 9 has 1,118 square feet on the first floor, excluding the free-standing garage. The garage is 414 square feet. The second floor is also 1,118 square feet. The total square footage, including the garage is 2,6,51 square feet;
Mr. Graham testified that the proposed home creates lot coverage of 19.17% excluding porches and balconies. In his opinion, this house is-hot excessive -for the-size-of the lot. -The existing •home-without porches and balconies creates lot coverage of 20.45%, which includes ,the free standing, garage.
The witness concludes that the main mass of the existing home almost meets the,permitted lot coverage. The witness also explained that the porches will not be enclosed. The porches add to the style of the homes. ,The witness also stated that there is plenty of fire separation between the two homes.
20. Mr. Graham said that he investigated the Uniform Fire Safety Act and spoke to.a representative of the Department of Community Affairs. lln his opinion, the Board is not bound to the 20-foot code standard for width of access to a home.
21. Mr. Graham .testified.that.the existing home is a cottage style design. The proposed home is amore traditional style home with cottage-like features. It is typical of the shore area. -
The witness was questioned about the home shown on. Exhibit A-14. He testified that the house at the top of the exhibit is not what ,he would design. The drawing showed anexample of the size of a possible home to be built on the -existing • lot.
22. Robert Bolles, 10 Carp Court, Millburn, New Jersey, asked Mr: Graham how he planned to elevate the proposed house. The witness stated thatthe first floor will.be. built at 1-foot above the floodplain;. the, house will be built on pilings. Mr-. Graham was questioned about fill on the property and he stated that care must be taken to divert water away from neighboring properties. There is no intention to fill to the river or to substantially change the grade of the lot, He confirmed that the. applicant will conform to all local, state and federal regulations.
The Board stated that if the property had to be filled more than two feet in depth, a _yarianc a would be required.
23. Michael Ves-u:vio; 607 Emerald Trail, Martinsville, New Jersey, testified that he is the applicant. He acquired that subject property on July 12, 2004. He was attracted to the town as-a great place to. live. When_he acquired the property he thought that they were-two separate pieces, He inquired of the town and was told that there were two separate lots and that an application to the Planning Board was not necessary. Thewitness referred to Exhibit A-19 which is a letter from Karen Brisben, the Board; Secretary, returning the subdivision application check.A-.request was made to the Zoning Officer for a
certification and Exhibit A-20 is a letter to Mr. Hilla dated June 3, 2008. Exhibit A-21 is Mr. Hilla's response dated June 13, 2008 forwarding applicant's request to the Borough Attorney. Exhibit A-9 is a letter from the Borough Attorney concerning the. issue of merger, finding that the properties did not merge.
The witness stated that he received two separate tax bills from the town. Exhibit A-7 shows. a tax bill for 316 %2 Fisk Avenue and 3141/ Fisk Avenue. Ultimately, the witness was advised that the lots had merged and that an application to the Board was necessary. -
Mr. Vesuvio stated that the proposed home on Lot 10 meets his needs and blends in with the community. He has heard comments from neighbors and haq revised plans to try to meet their concerns.
24. Mr. Middleton cross-examined the witness. Mr. Middleton asked if Mr. Vesuvio was represented by an attorney when he bought the property and the response was that he was. The witness agreed that prior to purchasing the property he did not attempt to get a certification from the town confirming that the property consisted of two separate lots, Mr. Vesuvio indicated that he discussed the matter with the Maser Engineering firm and Exhibit A-22 was introduced, a letter from Maser to Vesuvio dated June 3, 2004.
Mr. Vesuvio concluded by stating that he wants to do something nice on the property. He is not going to hurt anyone. He is taking into consideration drainage, runoff, etc. He stated that the prior owner represented that there were two lots.
25. Glenn Lines, P.E. & P.P., was introduced to give expert testimony as a professional. engineer. Mr. Lines introduced Exhibit A-17, Sheet 1 of 1, showing the overall site and a blowup of the lot being developed. This plan is revised through January 5, 2010.. Also introduced into evidence is Exhibit A18, the__minor subdivision plan revised through. January 5, 2010. This plan shows both the existing site and the proposed home.
The witness referred to the 16-foot wide easement from Fisk Avenue to applicant's property. The paved portion of the easement is 14 feet wide. The pavement widens to approximately 25 feet at applicant's property. On the west side of the easement is a lawn and then a home. There is all grass on the east side of the easement. As part of the access easement there is a 25foot utility easement. Mr. Lines:was asked if, in his opinion, the easement is sufficient for emergency vehicles to get to applicant's property. The witness stated that it is the current access to the existing home.
The new home will be on the easterly lot. It will be a house with a deck and an inground pool. The pool will be set back 25 feet from the mean high water line. The house is set back 41.92 feet from the mean high water line. The riparian associated with new Lot 9, the westerly lot, will have an area of 5,094.72 square feet. The riparian to be for new Lot 10', the easterly lot, will have an area of 4,488.47 square feet. There is an existing dock located within both riparian lots. The witness stated that the riparian grant sets the
mean high water line and the home has to be set back 50 feet from that mean high water line.
26. Mr. Lines testified that variances were required for lot area for both lots, lot width for both lots where 75 feet is required and 50 feet is provided. Lot 10 is deficient in lot depth where 125 feet is required and Lot 10 is proposed to be 121.22 feet. A front setback of 25 feet is required and applicant proposes 20.21 feet for new Lot 10. The R-3 Zone permits lot coverage of 20%. Lot 9 will have lot coverage of 26.63% and Lot 10 will have a lot coverage of 23.31%. A variance is required for a side yard setback on the existing home on Lot 9 of 6.97 feet where 10 feet is required.
The witness stated :that an'80-foot wide home could be built on the-existing lot which would meet the 20% lot coverage.
The witness referred to the letter from the Brielle Fire Chief, Exhibit A-16, dated March 23, 2010. He said that once an emergency vehicle passes the first house and garage along the easement, there is a 25-foot width that could accommodate two vehicles. Water supply for the fire trucks would come from a fire hydrant that is located two to three lots down Fisk Avenue. The witness estimated that fire hydrants are within 300 feet. Mr. Lines also said that the two homes along the easement are approximately 18.91 feet apart. Those homes are not as close as the Fire Chief suggested. The witness acknowledged that the front home is located approximately 1 foot off of the driveway. In response to a question concerning the ability to widen the driveway eastward, the witness stated that the neighbor would have to be consulted.
27. Mr. Middleton cross-examined the witness. The witness had confirmed that he did not have any certifications, licenses or took courses regarding fire codes. He also questioned the witness as to the requirement of the International Fire Code to have a 20-foot wide way to accomirmodate emergency vehicles. The witness was asked if this would affect his opinion and the witness responded in the negative.
Mr. Middleton introduced 0-2, a copy of the Easement Agreement. He asked the witness if CAFRA approval was Obtained and the witness responded that it had not been obtained.
Mr. Middleton questioned Mr. Lines about lot coverage. At present there is lot coverage of 15.41%. The witness was asked if a house footprint of 2,792 square feet would result in 20% lot coverage and, if so, could the existing house, which has a footprint of 2,100 square feet, accommodate an addition of approximately 691 square feet.
28. Timothy Middleton, Esq., attorney for the objector, introduced Joseph Kociuba, P.E. -& P.P. to give expert testimony as a professional engineer and professional planner. Mr. Kociuba said that he had heard all of the testimony to date, reviewed the Master Plan and Borough Ordinances and is familiar with the area in which the property is located.
The witness was asked to comment on the testimony presented by the
applicant's planner, Ms. Cofone, relative to the positive criteria for a CO) and C(2) bulk variances. Mr. Kociuba stated that a CO) variance relates to issues uniquely affecting the property. The fact that the owner thought he bought two separate building lots is not a basis for a CO) variance; a personal hardship is not the basis for a C(1) variance.
Ms.' Cofone also referred to the riparian grant associated with the properties. She testified that the area of the, riparian grant cannot be utilized to increase the size of the lot in order to comply with zoning requirements. Mr. Kociuba stated that'this was not a basis for CO) variance. He also said tht the Ordinance does not permit using the area of a riparian grant to meet the zoning requirements for a bulk area.
Applicant's planner also said that this application can also be approved based upon a C(2) variance. A C(2) variance can be granted where the application for a piece of property advances the purposes of the Municipal Land Use Law. The witness testified that Ms. Cofone' referred to the case of Kaufmann v. Plarinincj Board for the Township of Warren and stated that the application promoted appropriate "population densities. He' introduced 0=3 which is a chart depicting differences between the Kaufmann case and the subject case. He said that the zone permits 3.87 units per acre whereas-the applicant proposed 6.24 units per acre. The application in the Kaufmann case resulted in density significantly less than what was permitted in the zone. The witness
concluded that the Kaufmann case does not support applicant's argument. Ms. Cofone's second argument was that applicant's proposal resulted in a smaller home on each proposed property rather than the possibility of one large home on the un-subdivided property. The witness stated that he did not believe that this argument supported a C(2) variance.
Mr. Kociuba pointed out that if the subdivision were approved, both. homes would require significant bulk variance relief including lot coverage and bulk area. He referred to Exhibit A-19 to support his argument with regard to the variances. He suggested that the issue of the view of the Glimmer Glass, which was raised by Ms. Cofone, is not a valid issue. He said that the footprint for the two proposed homes is approximately 3,500 square feet combined. The largest possible footprint for a home on the un-subdivided lot is 2,700 square feet.
29. The witness also opined that the purposes of the Municipal Land Use Law will not be promoted by having two homes instead of one large home.. He did not agree with the argument of applicant's planner that this application increased adequate light, air and open space.
30. The witness testified that the negative criteria, in his opinion, was not met by this application. He was not familiar with any subdivision in town with no frontage on a road. This application provides for no frontage and no adequate access for emergency vehicles. It is true that the easement presently exists and serves the existing home. However, adding an additional home will put further strain on the easement. The proposed home is to be
located approximately 170 feet from Fisk Avenue The existing .home is approximately 2.30 feet from Fisk Avenue. The easement is approximately 16 feet wide. In his opinion, this is an 'unsafe condition which is exacerbated under conditions such as' excessive snow. He also finds that`the 16-foot easement is inadequate for even a'single-familyhome The fitness said that he did a study of the area and, referring to Exhibit A-12, said that in a 9.9 acre area around the subject property, the density is 2.93 units per acre which meets the density requirements of the zone.
Exhibit 0-4 was introduced, the 1953 tax map. This is the latest tax map prior to the establishment of the Planning Board. The purpose for introducing this exhibit was to show that a number of thelotsin, the "immediate 'area were combined over time to become more conforming. He referred fo ,Block 48, Lots 1.3 'and 14; 5; 6; 7 and 26 & 27. The applicant, however, is proposing to take a conforming lot and subdivide it into two nonconforming lots without street frontage which is contrary to what has been taking place in the area. The witness also commented on the fact that applicant might have a problem meeting 'DEP and CAFRA requirements and suggested that the Board require a jurisdictional determination from the DEP:
Mr: Kociube was cross-examined by' applicant's attorney. He agreed that promotion of the purposes of the Municipal Land Use Law established positive criteria. The witness agreed that'Ms: Cofone testified that, in her opinion, the project promoted light, air and open ;space. Referring to Exhibit A-14, the witness questioned whether neighbors had an interest in viewing the Glimmer Glass from Fisk Avenue and whether such a view would be impeded by a single large house on the property. The witness was also asked if he agreed that, of the properties within 200 feet, as shown on Exhibit A-12, 11 lots are'undersized. The witness said that those lots,existing in :1953 and also pointed out that 18 lots are conforming or. in excess of zoning requirements.
The witness was also questioned on other lots in the''area without frontage on roadways including Block 48.01, Lot 7, Lot 11,.which is owned by the witness' client, Lot 12 and Lots 9 80 0, which are the app,licant's properties. The witness agreed that his client's property does not meet lot width,
The witness also agreed that the easement is a recorded easement and that it will continue to serve the present home and any future homes, assuming that there is a cross-access agreement.'
Finally, the witness was asked about his'familiaritywith the Fire Safety Act and Fire Code and whether those acts exempted homes of less than three families from their requirements. The witness stated that he was unaware of that and would have to review those requirements to properly answer the question.
31. The'Board finds and determines that
(a) The property which is the subject of this application, :Block 48.01, Lots 9, 9:01, 10 and 10.01, as shown on the Borough tax map, is a conforming lot
located in the R-3 zone. The property has been owned by the applicant since July 12, 2004. Applicant seeks to subdivide the conforming lot into two nonconforming lots as follows: proposed Lot 9, 7,493.53 square feet; and proposed hot 10, 6,476.25 square feet. The minimum lot area required by the zone is 11,250 square feet. The riparian grant is not included in the calculation of lot area.
(b) The property does. not front on a Borough street. Access to the lot from Fisk Avenue is by way of a 16-foot wide access easement. If the subdivision is approved, this access easement would service both of the newly subdivided lots.
(c) In addition to the variances for lot are, applicant requires nine (9) other variances if the subdivision is approved. Those variances are set forth in a letter dated January 15, 2010 from Alan P. Hilla, Jr., Zoning Officer for the-Borough of Brielle. .
(d) Applicant bases his variance requests on both sections CO) and C(2) of N.J.S.A. 40:55D-70.
(e) In order to prove the positive criteria for a CO) variance, applicant must establish that "(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property, or the structures lawfully existing thereon, applicant is entitled to a variance from the Borough.. Zoning Ordinance." in reviewing applicant's proofs, the Board is mindful that the positive criteria for=.this variance must be based upon the property itself and not based upon personal preferences, actions on the part of others and similar facts.
(f) To support the request for a variance under CO), applicant's planner testified that the applicant took various steps to ascertain the need for a subdivision. However, those efforts were made subsequent to the purchase of the property. It was pointed out by the objector's attorney that applicant should have, prior to the purchase of the property and in accordance with U.S.A. 40:55D-56, requested from the Borough Clerk a certificate certifying that Lots 9 and 10 were two separate lots. The planner also argued that a hardship was created by the fact that the 1riparian grants associated with the upland lots could not be utilized as part of the bulk area of the lots in order to meet the zoning requirements. The objector's attorney noted that a Borough Ordinance does not permit the use of the riparian land to determine lot area.
It was further testified that the Borough Attorney issued a letter indicating that the lots had not merged, the prior owner represented that the lots were separate; and an opinion was given by a title company that the property consisted of two separate lots.
The Board finds that none of the reasons offered by the applicant's
planner established the positive criteria for a CO) variance. The reasons -given are unrelated to,the shape, topography, physical features, location of lawfully existing structures, nor any-extraordinary or exceptional situation affecting the property. Therefore, the Board finds that applicant has not established the positive criteria for a CO) variance.
(g) Applicant's planner also argued that applicant was entitled to-a variance under C(2). In order to establish a variance under this section of the statute, the applicant.must prove that the purposes of the Municipal Land Use Law "would be advanced by a deviation from the Zoning Ordinance requirement and that the benefits of the deviation would substantially outweigh any detriment."
Applicant's planner testified that the application promoted the general welfare, N.J.S.A. 40:55D-2(a), by proposing two smaller homes rather than the construction of'one large home straddling the two-Tots. The witness opined that two smaller homes would allow for greater air, light and open space. _
The Planner also suggested that the application promoted appropriate population densities, N.J.S.A.,40:55D-2(3), because the'proposed development would be more consistent with the character of the area which, in her opinion, the majority of the lots in the area are smaller than as required by.theZoning Ordinance and two smaller homes would fit better in the neighborhood scheme. The Planner also found that the proposed. development would promote a desirable visual environment , N.J.S.A. 40:55D=2(i) by creating two smaller lots, which she found to be more appropriate than one large lot. She also said that the smaller houses would allow for a better view for Fisk Avenue.to the Glimmer Glass.
(h) The_applicant has not established the positive criteria for a C(2) variance. Applicant referred to the Supreme Court decision in Kaufmann v. Planning Board for the Township of Warren, 110 N.J. 551 (1988). In that case, the court found that "No C(2) variance should be.granted when merely the purposes of the owner will be advanced. The-grant ofan approval must actually benefit the community in that it represents a better zoning alternative for the property." It has not been established that the proposed development plan will benefit the community. Testimony presented by the objector's engineer/planner was that there have been a number of lots in the areathat have been combined to create larger lots. The proposal before the`Board would be contradictory to that trend. The fact that the proposed subdivided lots will not front on a street is also not a benefit to the community. Furthermore, the use of a 16-foot wide driveway or access easement to service both lots creates safety issues. There will also bean increased use of the driveway/access easement which will not benefit the properties on either side of the easement, Also, applicant has not satisfied the Board that the development proposal will create a better visual environment or that a view of the Glimmer Glass from Fisk Avenue
has any significance to the community. Ultimately, this application only advances the purposes .of the.: applicant, not the community.
(i) Although the positive criteria has not been established for either a CO) or C(2) variance, the Board finds that applicant has not established that the variances can be granted without substantial detriment to the public good. nor that the approval will not substantially impair the intent and purpose of the Zoning Plan and Zoning Ordinance. The Board finds that the property is being over utilized. Applicant seeks to create two undersized lots and build two large homes on. them. The proposed development will result in a density of 6.24 units per acre where, 3.87 units are permitted; The use of the easement by two families will result inan increased-burden on the - homeowner adjacent:to.the driveway/access easement The Board also cannotagree_withapplicant's planner that two large houses, as.opposed to one very large house, will -result in an increase in air,; light and open space.
(j) In viewing applicant's request for a C(1) .variance; the-Board is mindful that the only reason why applicant needs variances on the subject property is because he desires to subdivide a conforming lot into two (2) nonconforming lots. Consequently, applicant's need for variances is not caused solely by the strict application of the Zoning Ordinance upon this particular property but rather is caused by the owner in requesting that the large conforming lot be subdivided into non-conforming lots. (Ketcherick v. Borough of Mountain Lakes;. Board of Adjustment, 256N.J. Super 647 (App. Div. 1992) _
NOW, THEREFORE, BE IT RESOLVED by the Brielle Planning Board on this 8th day of February, 2011 that the decision of the Board at its meeting of January 11, 2011 be memorialized and that this application be denied."
A motion to approve the above Resolution of Denial was made.by Mr. Langenberger, seconded by Mr. Harman and approved by the following. roll call vote:
Ayes: Mayor Thomas Nicol, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi
Not Eligible to Vote: Councilman Frank Garruzzo, Terre Vitale NEW BUSINESS:
The Board then turned to an application for a Minor Subdivision for Block 22.01, Lot 27, 616 Park Avenue,. owned by,Richard & Kimberly Read, Darin Muly & Heather Garrett-Muly. Lot Width - proposed lots 27.01 & 27.01, 75 feet required, 50 feet
proposed. Lot Area - 11,250 square feet required, 7,500 square feet proposed. Front Yard Setback-- proposed Lot 27.01, 30 feet required, ' 11; 65 pre-existing & proposed.
The Fee' Of $1,300 was paid, taxes are `paid to date and the property owners within 200 feet and the newspaper Were properly notified. Mr. C. Keith Henderson, Esq. carne forward to present this application and asked that Heather Garrett-Muly come forward to be sworn in and testify.�
She explained that they had purchased this in the summer of 2010 with two other people arid- she liNibs'at 28 Elizabeth Avenue it Mar a-0-r an which back' -up to the football field; she has found out that they are row disci:issing changing the field and putting lights up. She said when they purchased the'house in Brielle it was in terrible condition, they have cleaned it up and have :given the tenant until July; after she moves out they'plan on restoring the home as it is an old herb' a from 'the 1940s or older.
' If they can subdivide they will Pik up a modular home which they will purchase from her brother-in-law. She presented Exhibit A-1 which was a sample of the home they would like to build. Mr. Langenberger asked her if she was aware that this property was in the R-3 zone when it was purchased and Ms. Garrett-Muly answered yes.
Mr. Sarnasi noted the lot next door is 100 feet wide and asked her if she had approached that owner to buy some land for•this subdivision and the answer was no. As this-was the end of her testimony the hearing was opened to the public for questions and, as there were none, that portion was closed.
Alison Coffin, a Licensed Planner, then came forward and was sworn in. As she has appeared before the Board before, she was accepted as an expert witness. She said she reviewed the Zoning Ordinance and Master Plan and then addressed the variances. They wish to create two lots with two single family homes and noted this was originally two lots that wer&rnerged. Both lots need variances for lot width as 75 feet is required and 50 feet is proposed, they need variances'fer square footage as 11,500 is required and 7,500 square feet proposed. The 11.65 foot front yard setback is existing now and-will remain. She stated that a significant number of properties 'have non-conforming front yard setbacks in this part oftown; the front yard setback would fall under the G1 variance and the other variances are under the C-2 variances.
The C--1 hardship is due to the existing front yard setback. The C-2 variances can have relief due to'them being a flexible C and the purposes of the Municipal Land Use Law will be advanced due to the appropriate population density for this neighborhood.
Exhibit A-2 was then presented, showing the lots in the area; the green ones are the undersized' lots, the yellow ones'are non-conforming and the red ones`are 50 feet or less in width, - She concluded that 70% of the=lots within 200 feet are undersized. She
then widened out to 500 feet and 82 lots; of those 82 lots 58 (or 70%) lacked the proper width and 57 (69.5%) are not conforming in the area.
As far as the negative criteria, iris asked if the benefits outweigh the detriment and she felt it did as there will be no impact on the adjacent parcels, no impact on the Master Plan or Zoning Ordinance. Mr. Henderson asked her if variances have been granted in this area and. Ms. Coffin said yes, many have been for jots that are a little wider but variances were given.
Mr. Langenberger felt if this variance is granted it opens up the possibility of 17 more lots to be split in this area and he couldn't see how that was the design of the Master Plan or R.-3 Zone to allow that; he said only about 11 lots are 50 feet, some slightly over and many are 75 feet wide and larger; he did not want to see 17 more lots subdivided. Ms. Coffin didn't see where 17 new lots can be created, she only saw 5 but Mr. Langenberger said he started from Highway 71 and Ms. Coffin said that is a different zone. Mr. Langenberger agreed :but said this is still in this area and he felt this will open the door to developers. o e`
Mr. Sarnasi asked if this was in the R-4 zone at one time and Ms. Coffin did not know, the original lots were done back in 1906. Mr. Henderson said those lots were originally split into 25 foot lots but after World War li the Zoning issues came into play. Mr. Langenberger commented that the R-3 Zone was made for a particular reason, the whole town could have been made into an R-4 Zone but wasn't.
As there was no further testimony from Ms. Coffin, the hearing was opened to the public for questions and, as there were none, that portion was closed. As Mr. Henderson was done the Board went into discussion. Mr. Langenberger said his feelings were clear, this opens the way for over-development and he was against it. Mr. Harman echoed Mr. Langenberger and said the owner knew the zoning when the property was purchased last summer. Mr. Sarnasi felt the Board should stick with the Master Plan and saw a density issue. Ms. Vitale agreed with the comments made. Councilman Garruzzo agreed that some lots do not comply but he did not want to see a bad situation made worse and noted that a lot of upgrades have been done on these smaller lots; he also felt this opens the way for more development and problems. Mayor Nicol was not in favor, this property was 'purchased as a 75-foot lot and this is what it should be. Mr. Condon felt that, back in 1906, lifestyles were different than today and did not want to see more development here.
At this time Mr. Langenberger made a motion to deny this application, this seconded by Ms. Vitale and the denial was approved by the following roll call vote:
Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Terre Vitale
Tuesday, February 8, 2011 Noes: None
The last item for New Business this evening was for an application for a Minor Subdivision for Block 97, .01, Lots.2 & 33.401 & . 405,Sycamore_ Lane, owned by Thomas R. Schwier subdivide two existing lots to create a third lot. All three lots will fully conform to Zoning.
The fee of $1,000 was paid, taxes are paid to date and property owners'within 200 feet as well as the newspapers were properly notified. Mr: ThemasjHirsch, Esq. came forward to representthis application and stated it is a straight forward application as all the lots conform. He asked Jason Fichter to come forward and be sworn in, he is a Licensed Engineer and Planner in N.J. and has testified before this Board before. The Board accepted him as an expert witness.
Mr. Fichter presented Exhibit A-1, the plan submitted in the application with color added. This property comprises two lots on Sycamore Lane and Jordan Drive. Mr. Thomas Schwier owns lot 2 and has now purchased 'lot 3,these are two oversized lots and he now wants to create a third lot from the two side yards. Gas and Sewer are already there but they need an easement for the water lines.
Mr. Hirsch explained there is an existing easement to the Schwier home for the water line and now for the new lot it will go all the way through so an easement is needed. A variance was also'granted many years ago for the cabana that is on the Jordan Drive side of the property.
Mr. Rubino marked Mr. Hilla's report of January 25, 2011 as Exhibit A-2 and Mr. Fichter went over this report. He said the easement for Jordan Drive cuts across the other two lots. As far as the future dwelling on proposed Lot B, Mr. Villa asked for trees to be reserved as this is `Sycamore Lane" but he said they do propose a driveway to be made, As far as topography, future development on proposed Lot B will produce greater runoff but the stormwater management will not change here and the plan has to be reviewed anyway; he said there is no problem now with drainage and they do not foresee any.
Item #5 in the 'report asked how the subdivision will beperfected and it will be done' by deed. Mrs. Brisben spoke and said that no deed wjl-be signed until the,new lots have'. been properly numbered by the Tax Assessor and Mr. Fichter said they had asked the Assessor the new lot numbers but have not received an answer to their request as yet.
Mr. Condon asked if any of the existing homes will be taken down and the answer was no. Mr. Sarnasi asked more about the easement and Mr. Fichter said that the electricity will have to be included here as well as water, this will come into the back of the Lot C to Lot B; the sewer comes in from the front.
As there were no more Board questions, the hearing was opened to the public for questions and Karen Jordan 'of 404 Sycamore Lane came forward and was sworn in. She said they have serious issues with drainage and asked if this new construction will make it worse. Mr. Fichter referred to the topography as shown on the plan and the drainage currently runs to Jordan Drive so there will be no. problem for Ms. Jordan. She then asked what can be done if her problem does become worse due`to this construction. Mr. Fichter again said this will not affect her, she has a problem due to her lot being so flat but the water from this new home will not run off to her property. Mr. Rubino told Ms. Jordan she can always come in and see Alan Hilla if there are any concerns as drainage is a problem in Brielle and he assured her that.Mr. Hilla will look into it.
As there were no further questions, that portion of the hearing was closed. Mr. Hirsch noted that Mr..Schwier was in the audience if anyone wanted to question him and, if not, his testimony was done.
As this time the hearing was opened to the public for general comments and Ms. Jordan again came forward. She wanted to clarify that the applicant is also asking for any additional waivers or variances, this is what is says in the notice she received. Mr. Rubino explained that this is standard language for notices but no variances are requested here.
Ms. Jordan said the sycamores are in the Borough right-of-way and not on the owner's property and she wanted to know how they can be sure that they will be safe here with this construction; she was also concerned about the planter in the middle of the street, also Borough owned. She presented some photos of the trees she spoke of and these were marked as Exhibit J-1. Mr. Fichter spoke and said they added language to the plan to preserve as many trees as possible and he felt that a driveway can be added in between two trees, but Ms. Jordan said they are tightly spaced here and she just wanted to be sure they won't be harmed. Mr. Rubino suggested making a condition of approval that the developer has to seek approval from the Borough Engineer and Zoning Officer, both positions held by Mr. Hilla; this will be in the Resolution as well as on the plan.
Ms. Jordan said these trees are part of the history of Brielle and they originally lined a driveway to an estate here; she felt the trees are a critical part of her property assessment and she did not think the profit from another house is more important than some beautiful trees.
Mr. Hirsch said the developer has the right to develop his property and commented that Mr. Schwier lives on this street as well and feels the same way about the trees. Councilman Garruzzo agreed that an owner has a right to develop his property. Mr. Condon also agreed as taking as few trees down as possible will preserve
the integrity of this area and Mr. Rubino said this is a legal lot that is being created. Mr. Sarnasi said he could only see three trees that may be affected and Ms. Jordan then asked about the planter; the Mayor said that is owned by the Borough.
As there were no further comments that portion of this hearing was closed. The only other comments the Board discussed was that the Brielle Shade Tree Commission, the Environmental Commission and Code Enforcement Officer were all available if needed in this matter.
As all Board members were in agreement with. this application,ra motion was made by Councilman Garruzzo to accept the application, with the conditions discussed, this seconded by Ms. Vitale and approved by the following roll call vote:
Ayes: Mayor Thomas Nicol, Councilman Frank Garruzzo, Thomas Condon, James Harman, James Langenberger, Charles Sarnasi, Terre Vitale
Noes: None OTHER BUSINESS:
Mr. Langenberger first spoke on the monopole issue at the Alpha-Omega building; he has received information that it will be fixed and the lights lowered. The other matter he wanted to talk about was the Mark Gatanis application that is again being postponed. The Board briefly discussed this and decided that a letter. would be written to him stating that if he carinot_appear at the March 8th hearing, his application will be dismissed without prejudice::.:He can. then apply again when he gets the proper updated survey, pay the $300 fee and the Board can hear the same application at a later date.
Mr. Harman asked about the CO as he stated he is still on a Temporary CO and Mr. Rubino said nothing can be done while the application is in process, but felt he should show up and have this matter taken care of.
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 8:30 pm.
Kann S. Brisben, Recording Secretary