Meeting Agendas & Minutes

Board of Adjustment Meeting Minutes 03/28/11

Minutes of the Regular Meeting of the Morris Plains Board of Adjustment held on March 28, 2011 at 7:30 p.m. in the Council Chambers, 531 Speedwell Avenue. The following members were present:


Mr. John Conway

Mrs. Rosemary Lopez

Mrs. Ruth Mills

Mr. Martin Reilly

Mr. John Scagnelli

Mr. Roy Stewart

Mr. Michael Bozza

Ms. Joan Scaccia

Mr. David Schulz, Chairman


Mr. Leon Hall, Borough Engineer

Mr. William Denzler, Borough Planner

Mr. Michael Sullivan, Board Attorney




The meeting was called to order by Mr. Schulz. Mr. Schulz made the statement that adequate notice of this meeting has been published and posted in accordance with Chapter 231 of the Public Law of 1975, "Open Public Meetings Act."



Mr. Schulz stated the next agenda item is approval of the meeting minutes of the Regular Meeting on February 28, 2011.


Mrs. Mills moved the minutes be approved as revised, seconded by Mr. Conway.

Roll Call

Yeas: Mr. Conway, Mrs. Mills, Mr. Reilly, Mr. Bozza, Ms. Scaccia, Mr. Schulz

Nays: None

Abstain: Mrs. Lopez, Mr. Scagnelli, Mr. Stewart

Motion carried.


Mr. Schulz opened the meeting to the public to speak on matters other than those on the agenda. Hearing none, he closed this portion of the meeting to the public.


BA-1-11 - Gary Tahlmore – 81 West Hanover Avenue, Block: 33 Lot: 6

Mr. Schulz advised that the applicant has requested both a completeness review and a public hearing at this meeting.


Mr. Tahlmore introduced himself to the Board and the Board Professionals.


Mr. Hall reviewed his March 24, 2011 report, providing appropriate details on various checklist items. He also commented on the revised plan stating this plan shows the proposed elevations in accordance with his comments at the Board’s February meeting. The one outstanding matter is Checklist Item #23(e). He stated he is satisfied with the information, especially regarding drainage and water issues. He recommends that the Board find this application complete. He stated that the revised plan being referred to is dated March 24, 2011 and is further identified as Revision #3.


Referring to their March 24, 2011 report, Mr. Denzler stated they concur with Mr. Hall’s comments, including that the application be deemed complete.


Mr. Conway moved that this application be deemed complete, seconded by Mr. Reilly.


Roll Call

Yeas: Mr. Conway, Mrs. Lopez, Mrs. Mills, Mr. Reilly, Mr. Scagnelli, Mr. Stewart, Mr. Bozza, Ms. Scaccia, Mr. Schulz

Nays: None

Motion carried.

The Board Secretary advised that the issue of several agencies not having been notified has been addressed.


Mr. Sullivan swore in the Board’s Professionals, the applicant and Mr. Leeb.


Mr. Gary Tahlmore stated his name and address.


Mr. Seth Leeb provided personal information stating he is a licensed architect in the State of New Jersey and has practiced in the Morris Plains area for more than 13 years as well as in 11 New Jersey counties. He has presented more than 100 applications before zoning boards and planning boards in New Jersey. He has appeared before this Board.


Mr. Leeb was accepted as an expert witness.


Mr. Leeb reviewed the application packet. The application proposes a two-story two-car garage in the back right-hand corner of the property. The garage would be on the lower level with a small workshop area on the second level. Three variances are being sought that relate to: (1) accessory building height; (2) building coverage; and (3) impervious coverage. He provided information as to what currently exists in the rear of the property together with the work that will need to be done to create the proposed garage. The existing house is on a relatively small footprint. The intent is that the garage will blend in appropriately with the surrounding area and be in a Victorian style. He provided information on impervious coverage amounts allowed, existing, and proposed. He advised there have been efforts to lower the height of the proposed garage.


Mr. Sullivan marked an item as Exhibit A-1.


Mr. Leeb stated the exhibit is photographs of neighboring houses in the area with detached garages that have heights of more than 16’ high.


Mr. Sullivan marked another item as Exhibit A-2.


Mr. Leeb stated this exhibit is before and after photographs of the applicant’s house in addition to photographs of the interior to illustrate items he has built. Mr. Leeb advised the second-story of the proposed garage will have no plumbing, no heating, and no air conditioning; it will not be a space in which to live, only for Mr. Tahlmore to work in the workshop area.


Cross discussion as to what the owner could do with this space in the future and also what a future property owner might want to do.


Mr. Leeb provided information about the size of most typical garages. He estimated that approximately 236 SF would consist of useable space on the second level of the garage. He also commented that the basement space in the applicant’s house is not useable due to low ceiling height and various items of equipment (piping, ducts, etc.) located on the ceiling. He provided information on those Morris Plains properties that he is aware of that are higher than 23’ 2". This discussion revealed two properties that are actually located in Morris Township, leaving only one in the surrounding area of the applicant’s property in Morris Plains.


Mr. Sullivan requested that Mr. Leeb revise his Exhibit A-1 to identify the two properties that are actually located in Morris Township.


Cross discussion about the sizes of various other garages located in the Borough, especially those that are two stories.


Mr. Leeb commented on drainage, impervious coverage, building coverage, ground absorption, and their proposal to install a new drywell in addition to the existing cistern on the property. The applicant’s property is essentially flat. No curbing is proposed for the driveway. No catch basin is proposed at the rear of the garage.


Cross discussion about the proposed drywell capabilities and how it is expected to operate.


Mr. Denzler asked if any other types of designs were considered for the garage. He also asked about certain area garages.


Mr. Leeb advised they looked at placement of the garage and the house immediately next door on the left side (#79). He also provided additional information of how the final decisions about the garage were determined, including why they decided against an attached garage. He believes the majority of the area garages are detached, but not two stories. He advised that issues such as yard air circulation, open space, and light were taken into consideration.


Mr. Hall referred to the Retracement Survey that shows original topographic conditions. Under existing conditions water would flow toward the center of the site. He provided guidance on the drainage and drywell issues. There is not a need to install a larger than proposed drywell; the size of the drywell is adequate to address the overall lot impervious coverage. However, if the applicant wants to install a larger one that is acceptable, but it is not necessary.


Mr. Denzler asked about a part of the side of the proposed garage.


Mr. Leeb replied that this part of the side was to allow for moving a large piece of furniture out of the workshop when taking it down the stairs would not be practical.


Mr. Hall asked about a driveway paving detail being added to the plan, the overflow pipe from the drywell details, and the two seepage pit details that conflict.


Mr. Leeb advised the driveway paving detail will be provided to Mr. Hall and revisions for the other items will be made to the plan to address two checklist items on page 2, Item III, letters (a) and (e).


Mr. Sullivan added that if the application is approved, letter (f) would also apply. He proposed several other recommendations to be considered as conditions.


Mr. Hall advised the applicant that he will be subject to noise standards here.


Mr. Conway asked what the minimum width requirement would be for the woodworking shop area. He expressed concern that the proposed structure would be 44.8% higher than the standard as it relates to height. Was any consideration given to possibly widening the garage to create a two and a half car garage and locating the workshop on the first floor?


Mr. Tahlmore responded that he thought 16’ would be the minimum.


Mr. Leeb stated they did consider constructing a three-car garage, but this appeared to significantly overwhelm the property. He commented on several other ideas and combinations that he thought might have been satisfactory. He added they even considered possibly dropping the floor of the basement to create greater space.


Cross discussion relating to possible alternatives that might be adequate and acceptable, including issues related to his woodworking hobby, that he is not running a business, and exploring ways to reduce or eliminate one or more of the variances being sought.


Mr. Sullivan commented that perhaps the best course of direction would be to "stick with" the accessory building height issue; this appears to be the variance the Board has the most concern with. He commented on the specifics of several variances (C1 and C2).


Mr. Leeb advised that the variance the applicant is seeking would be a C2 variance; it is not a hardship variance, rather it is a "benefits outweigh the detriments" situation. Since there is only a shed on the property now and no garage and because it is a small property, anything added to the property will look larger. Many of the neighborhood houses have two-car detached garages, so building a two-car garage on the applicant’s property will not create an uncommon structure in terms of character of the surrounding area. He did state, however, that the majority of these detached garages are not two story. He commented that he did not envision any negative impact on the neighborhood if the applicant’s proposal is granted by the Board. The proposed two-car garage will add value to the applicant’s property.


Mr. Tahlmore added his thoughts on how he believes what he is proposing will not in any way affect the neighborhood negatively. In the end the renovation work will augment his property.


Mr. Leeb again emphasized that the applicant will not be operating a business and selling any products of his woodworking hobby. He may give some pieces he creates to family members, but he will not be selling anything as part of a business. He provided measurements data for the proposed garage as well as information relating to market standards for today’s garages.


Mr. Schulz opened the meeting to questions from the public. Hearing none, he closed this portion of the meeting to the public.


Mr. Conway reiterated that he would rather see a three and a half car garage or thereabouts than have one that is 50 percent higher than the Borough requirement. He sees no benefit to the general public in granting this application.


Mr. Stewart stated he concurs with Mr. Conway’s opinion.


Mr. Leeb asked if it would be possible for the applicant to be extended some time to review comments from various Board members and to possibly consider some alternatives to the current proposal. He offered to look at ways of trying to reduce the height of the structure.


Mr. Sullivan provided instruction in connection with Mr. Leeb’s request that this matter be carried. He advised that if the revised plan increases a variance request, the applicant will need to re-notice; for example, if the impervious surface coverage increases and the variance is now greater, it is possible someone may object to the revised plan.


The Board Secretary advised that the next Board meeting is on April 25, 2011.


Mr. Schulz stated that re-submittals and additional information must be submitted to the Board Secretary no later than April 11, 2011. The Board Professionals can be contacted as needed.


Mr. Conway moved that this application be carried to the Board’s April 25, 2011 meeting, seconded by Mr. Stewart.


Roll Call

Yeas: Mr. Conway, Mrs. Lopez, Mrs. Mills, Mr. Reilly, Mr. Scagnelli, Mr. Stewart, Mr. Schulz

Abstain: Mr. Bozza, Ms. Scaccia

Nays: None

Motion carried.

Mr. Leeb thanked the Board.

Mr. Schulz called a short break.

BA-2-11 – EJK Realty, LLC – Route 10 East and Candlewood Drive

Block: 115 Lots: 1,2,3,4,5

Mr. Schulz advised the applicant has requested both a review for completeness and public hearing at tonight’s meeting. He asked if the attorney for the applicant was present.


Mr. McArthur, the attorney for the applicant introduced himself to the Board and provided information as to the law firm he is associated with.


Mr. Hall stated he deems the application complete from an engineering perspective.


Referring to their March 24, 2011 report, Mr. Denzler stated they also are deeming this application complete.


Mr. Conway moved that the application be deemed complete, seconded by Mr. Reilly.

Roll Call

Yeas: Mr. Conway, Mrs. Lopez, Mrs. Mills, Mr. Reilly, Mr. Scagnelli, Mr. Stewart, Mr. Schulz

Abstain: Mr. Bozza, Ms. Scaccia

Nays: None

Motion carried.

Mr. McArthur advised of who would be providing testimony at tonight’s meeting.

Mr. Sullivan swore in the Board Professionals.

Mr. McArthur provided a review of what has occurred thus far in connection with this application as well as providing certain background/historical information relating to previous applications. This also included reference to several variances that were previously granted. The purpose of being before the Board tonight is to amend the existing site plan to eliminate a site driveway to the south of the existing 20,053 SF building. They are also seeking several sign variances. He commented on reviews from a number of Borough departments, none of which objected to what the applicant was proposing.


Mr. Sullivan swore in one of the applicant’s expert witnesses.


Mr. Daniel J. Dougherty provided information on his work and background and was accepted by the Board.


Mr. Dougherty presented his report relating to this application, including reporting on the grading change, access locations, ramps, the proposed wholesale building use and possible tenants (versus just one tenant), driveways, pedestrian access, and parking/parking lots. He introduced as Exhibit A-1, a colored site plan rendering. He provided reasons why they decided to propose this latest revision. The applicant is proposing these revisions so that it may have the option of having more than one tenant.


Continuing, Mr. Dougherty reviewed variances being sought by the applicant. He commented on building mounted signs and how this request relates to the Borough’s ordinance. In no situation would any sign be greater than 40 square feet. The signs on their signage table are the maximums the applicant will be requesting. He advised of a typographical error on the architectural plans regarding a sign – a sign that would be 18’ 8" – this sign would actually be 18’. The applicant now believes that the building may be more marketable to three smaller tenants rather than one tenant occupying the entire building.


Mr. Hall clarified information relating to sign dimensions – that all those indicated as 18’ 8" will actually have a length of 18’.


Mr. Dougherty replied that this is correct. Another sign variance the applicant is seeking is for the freestanding sign. The applicant’s planner will provide planning testimony relating to this variance. In his opinion, the removal of the driveway would not present a negative impact. He also commented on matters in connection with parking stalls, dead ends, and turnarounds.


Mr. Sullivan asked about the approximately 20,200 SF building and its use description as a wholesale distribution center facility as defined in the Borough’s ordinance. He also asked about the building’s original measurement being 20,053 SF versus it now being indicated as 19,678 SF. Is this due to the construction of a bump out?


Mr. Dougherty stated the building is still classified in this manner and that the difference in space is due to the bump out. There is no negative egress/ingress/traffic circulation impact as a result of what they are now requesting.


Mr. Hall stated that overall he is satisfied with the turning radii being proposed. He also commented on the matter of a third Route 10 lane.


Cross discussion about the proposed turning radii and related issues.


Mr. McArthur referred to some history regarding this project. Certain information became a part of the Developer’s Agreement EJK Retail Development has with the Borough. He had had extensive negotiations with Ms. Gail Fraser on this subject and also appeared twice before the Mayor and Borough Council. In 2007 the Board did not require Mr. Kloss to provide a dedication in light of the possible future road widening. He read a pertinent portion from an earlier Resolution. Mr. McArthur read Paragraph 3 of the Developer’s Agreement which begins on Page 3.


"Based upon a recommendation of the Borough Engineer, the Borough requested that the Developer convey to the Borough a twelve (12) foot wide road/right of way dedication along the Route 10 property. Thereafter, the Borough offered a compromise position so that the dedication to the Borough would be reduced to a 6’ wide road/right of way dedication. In lieu thereof, and in settlement of the parties’ impasse concerning the prosposed dedication to the Borough, the Borough and Developer agree as follows:


    1. The Developer will continue to reserve the area along the Route 10 property line for future right of way purposes as shown on the approved site plan.


    3. In lieu of a present dedication to the Borough as requested, the Developer agrees to make a payment to the Borough at the time the State of New Jersey by and through its Department of Transportation or any other State entity [hereinafter "State"] acquires an interest in the Property for road widening and/or right-of-way purposes, either by agreement, or eminent domain, which payment shall be equivalent to a percentage of the total compensation, or total award, paid to the Developer by the State of New Jersey. Because the Developer and Borough cannot predict, at the present time, the fair market value of the future acquisition of an unspecified interest in a portion of the property by the State, the parties agree that the compensation to be paid by the Developer to the Borough shall be equal to the ratio of the proposed 6-foot dedication/total width of the interest in the Property acquired by the State to the total compensation paid or awarded to the Developer for such interest, but in no event greater than 100% of the total compensation paid or awarded to the Developer for such interest. For example, if the State acquires an interest in a 12 foot width of the Property for the total fair market value compensation of $100,000, the Developer would make compensation to the Borough in the amount of $50,000 [6/12=50% ($100,000 = $50,000]. In the event of a conveyance of an interest in the Property by the Developer to the State of New Jersey for road widening and/or right- of-way purposes, either by voluntary conveyance or by a condemnation action, no further subdivision or variance approval by the Borough will be required to perfect said conveyance for road widening and/or right-of-way purposes.


    5. The Developer shall make such payment to the Borough of Morris Plains within thirty (30) days of the date the State delivers compensation to the Developer for such voluntary conveyance, or in the event of a condemnation action, within thirty (30) days of the date of entry of an Order fixing and awarding final compensation to the Developer. In the event the Developer defaults with respect to the payment of compensation to the Borough within the said thirty days, and said default is not remedied within ten (10 ) calendar days after delivery of a written notice of default by certified mail from the Borough to the Developer then the Developer’s payment obligation to the Borough shall be a lien upon the Property and the Developer shall be responsible for the payment of any and all attorney’s fees and disbursements resulting from or made necessary by the bringing of any suit or other legal procedure to enforce the Developer’s obligation or to collect such payment."


Continuing, Mr. McArthur stated this Agreement was signed by the Mayor on February 26, 2008, witnessed by the Borough Clerk and also signed by Mr. Kloss.


Mr. Sullivan advised that what he believes happened is that this Board "kicked" it to the Governing Body to be memorialized in the Developer’s Agreement, and this is precisely what did happen. Why is this issue being raised now?


Mr. Hall stated that information has become available from the Police Department that there have been 113 accidents along this section of Route 10 in 18 months. The Borough is actively pursuing the DOT in order to convince them to install a third lane; he is personally involved with this and has made several applications to the DOT. He also advised that over the past several years both this Board and Planning Board have included conveyances of land, generally 10’ right of way dedications, and such conveyances were included in the Resolutions and land was conveyed to the Borough. He still supports this process, especially in light of the serious accident rate in this stretch of roadway.


Mr. Sullivan recommended a discussion of what is different in the application itself and what has been approved now as opposed to back in 2007. What has changed since then? The Governing Body did reach an agreement that was negotiated as per the Board’s Resolution. Is there a changed circumstance that would warrant a reconsideration of this at this point in time?


Cross discussion about this matter, including the accident data, the construction of an acceleration lane in front of the Ceglia gas station, and problems caused by merging traffic.


Mr. Hall asked about parking and the parking lot and under the previous approval, how many linear feet were from the connecting driveway to the dead end?


Mr. Dougherty replied that it would be 190 linear feet. He also provided commentary on his opinion of the currently proposed parking/parking area. He provided additional information on this subject.


Mr. Denzler asked about the proposal to subdivide the 20,000 SF building and whether any thought has yet been given to who might use this building. He also asked about the proposed wall signage.


Mr. McArthur deferred the answering of this question to the applicant.


Mr. Hall advised that he and the engineer had spoken this afternoon and he referred the Board members to Plan Sheet A-2e of the architectural plans (elevation of the building). The detail he pointed out he said was very different from what is on the architectural plans, from the tenant plates on up. He also asked about Plan Sheet A-1e (floor plans of the wholesale building).


Mr. Daugherty provided information on what is being proposed relating to the wholesale building. The walls shown could change.


Mr. Conway commented on what if the tenants in the wholesale building are not wholesale in the end, but are retail.


Cross discussion about signage, signage variance relief and exactly what it is the applicant is requesting.


Mr. Schulz opened this portion of the meeting to questions from the public. Hearing none he closed this portion of the meeting to the public.


Mr. McArthur called the next expert witness.


Mr. Sullivan swore in Daniel McSweeney, 409 Washington Boulevard, Sea Girt, New Jersey. He provided background information on his planning work, licenses, special consulting work, and experience in serving as an expert witness before boards.


Mr. McSweeney was accepted as an expert witness.


Mr. McSweeney stated he was retained to provide a planning and zoning analysis of the sign variances being sought in conjunction with the amended site plan application before the Board. He has reviewed the plan submitted by Mr. Dougherty dated March 10, 2011, and he also reviewed the Board Professionals’ reports. He also conducted a site inspection of the property and the general surrounding area. The approximately 15,000 SF building with seven retail uses is presently under construction. The second building on the property has not yet been redeveloped. The subject property consists of 3.24 acres. Mr. McSweeney stated the existing non-retail building on the site contains 19,676 SF with the elimination of the bump out addressed earlier by Mr. Dougherty. The retail building under construction contains 15,200 SF. Considerable improvements have been made to this site as part of the earlier application. The site is located entirely within the office business zone and the Board granted a use variance in 2007 for the use of the site for the retail structure for retail uses and the wholesale use in the 19,676 SF structure. He provided a brief description of what else is located in the immediate vicinity. He provided a summary of what already has been done as a result of the previously approved application.


Mr. McSweeney stated that the plan that is now before Board is the variance being sought in conjunction with the amended site plan. The ordinance permits a freestanding sign height of 7’, the Board previously granted an approval for a sign height of 20’, and the existing sign is 27’ in height. The ordinance permits the sign to be 20 SF; the previously approved plan provided for 96 SF. He commented on the size of the property. The retail structure is set back 143’ from the frontage of Route 10 in the northwesterly portion of the site. This is far in excessive of the minimum required setback for the zone. This property has almost 500’ of frontage along Route 10. A conforming lot size for a use in the C-1 zone requires 175’ of frontage and in the OB zone 250’ of frontage compared to their site of 500’ of frontage. Their lot size is substantially larger than the minimum lot size for either zoning district. The posted speed limit along the frontage of this property on Route 10 is 50 miles per hour. There is only one means of ingress and egress to the site. He believes the variances sought can be granted pursuant to N.J.S.A. 40:55D-70c.(1) or c.(2). C-1 is a hardship variance and C-2 is commonly referred to as a flexible c variance. He provided reasons for his position, including a 20’ change in grade across the property. Additionally, the largest building on the property is not a new building; it is a rather rundown and dilapidated building, an eyesore and blight on the entire area. It is his opinion that the proposed renovations and uses clearly outweigh any possible detriments to health, safety and general welfare. The applicant would also be cleaning up an environmental problem that exists on the site today.


Continuing, Mr. McSweeney stated that the signage plan provides for proper and adequate identification of the uses on the property; it will cause no substantial adverse impact to the zoning ordinance or zone plan. He also reminded that the speed limit along this stretch of Route 10 is 50 miles per hour. He believes the signage being sought is reasonable based on the number of tenants to be located in the two buildings on the property, the total building area to be built on the site, 34,000 SF, and because the lot is 3.2 acres. A more positive business climate will be created for the site and entire surrounding area.


Cross discussion about issues relating to signage, including the freestanding sign, 20’ signage area, 27’ signage area, as well as three tenants in the wholesale building versus the original one tenant, and what else has changed since prior discussions that could affect proposed signage.


Mr. Hall discussed signage and sign height, the grading plan, topographic conditions, building orientation conditions relating to Route 10 and also commented on the use of the phrase "slight deviation" in connection with signs.


Mr. McSweeney commented on some apparently newer signage and one or two buildings nearby, one of which is the newly-renovated Aires Jewelers. He described the appearance of this signage.


Mr. Hall asked for confirmation that the applicant’s sign proposal does and will continue to comply with 13-5.8(c) 1.2(b), (d) and (c).


The applicant stated they believe this will be complied with.


Mr. Denzler commented on the freestanding sign and its size as well as other proposed signage, and raising the question of why is there an apparent need for duplicate signage.


Discussion between Mr. Denzler and Mr. McSweeney regarding signage.


Cross discussion among several Board members also regarding signage.


Mr. Schulz recommended concluding the hearing for this meeting. He stated certain information he would be expecting from the applicant at the Board’s April meeting. The matter is carried to the Board’s April meeting. The next Board meeting is scheduled for April 25, 2011.


Mr. Conway moved that this hearing be carried to the next meeting, seconded by Mrs. Mills.


Roll Call

Yeas: Mr. Conway, Mrs. Lopez, Mrs. Mills, Mr. Reilly, Mr. Scagnelli, Mr. Stewart, Mr. Schulz

Abstain: Mr. Bozza, Ms. Scaccia

Nays: None

Motion carried.



Mrs. Mills stated there is no correspondence and no bills for payment.


Escrow Report

The Board Secretary presented a status report regarding escrow. EJK will be combined.


Mr. Sullivan recommended letters be sent to all those applicants who owe on their escrow accounts.


Cross discussion of escrow accounts and escrow payment procedures, including how best to address issues of deficits and also the impact on the issuance of building permits.








There being no further business, Mr.Scagnelli moved the meeting be adjourned, seconded by Mrs. Mills. Voice vote. All in favor. Motion carried.

Karen M. Coffey

Commission Secretary