Meeting Agendas & Minutes

Board of Adjustment Meeting Minutes 06/28/10

Minutes of the Regular Meeting of the Morris Plains Board of Adjustment held on June 28, 2010 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, Vice Chairman

Mr. Michael Bozza

Ms. Joan Scaccia

Mr. David Schulz, Chairman


Mr. William Denzler, Borough Planner

Mr. Leon Hall, Borough Engineer

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."



The Board Secretary provided information regarding minor revision on page 495, third paragraph starting with Mr. McArthur, fourth line, "at a later date" the word date after later and on page 498, third paragraph – "How will they get from the parking spaces."


Mr. Conway moved that the minutes of the May 24, 2010 Regular Meeting be approved as revised, seconded by Mr. Scagnelli.

Roll Call

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

Mr. Stewart, Ms. Scaccia, Mr. Schulz

Nays: None

Abstain: Mr. Bozza

Motion carried.



Mr. Schulz stated approval is needed of the meeting minutes of the Executive Session held on May 24, 2010.


Mr. Scagnelli moved that the meeting minutes of the May 24, 2010 Executive Session meeting be accepted, seconded by Mr. Conway.

Roll Call

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

Ms. Scaccia, Mr. Stewart, Mr. Schulz

Nays: None

Abstain: Mr. Bozza

Motion carried.


Mr. Schulz opened the meeting to the public to speak on matters other than those on the agenda. No comments were forthcoming, and this portion of the meeting was closed to the public.



BA-2-10 – Bodnar – 26 Overlook Trail, Block: 72.04, Lot: 20

Mr. Schulz advised this application is being reviewed for completeness at tonight’s meeting; there will be no testimony heard.


Mr. Kevin Bodnar introduced himself to the Board and the Board Professionals and provided an address of 26 Overlook Trail, Morris Plains, New Jersey.


Mr. Denzler presented the results of his review of this application stating the application was deemed incomplete. He gave specific details of why it was determined to be incomplete.


Mr. Hall presented the results of his review of this application making specific comments regarding different checklist items. He advised they had also deemed the application incomplete.


Mr. Schulz asked the applicants if they understood the concerns of the Borough Professionals.


Mr. Bodnar responded that he did to some extent, but not for everything. He provided information concerning grading and contour. The only change they would like to make regarding the driveway is to add parking off to the side and bring it into conformance with the pre-existing condition of the driveway they have now. He is not sure why so much topography work is needed. He does not know whether his engineer and Mr. Hall have spoken, but believes his contractor has. He thinks there may be some misunderstanding about the drainage plan that was submitted. He explained some of the items that he is uncertain about.


Mr. Schulz asked Mr. Bodnar to have his engineer contact Messrs. Hall and/or Denzler directly to discuss certain details of the proposed work project.


Mr. Hall provided additional information in connection with the drainage issues.


Mr. Schulz believes the drainage issues can be further discussed during the testimony phase of the public hearing.


Mr. Conway moved that this application be deemed incomplete based on the Professionals’ reviews, seconded by Mr. Reilly.

Roll Call

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

Mr. Stewart, Mr. Schulz

Nays: None

Abstain: Mr. Bozza, Ms. Scaccia

Motion carried.

Mr. Schulz commented that the applicants have already noticed for public hearing. He asked the Board Attorney if the notice can be preserved to next month’s Board meeting.


Mr. Sullivan stated this public notice can be preserved.


Mr. Schulz stated this application will be carried without further notice to the July Board meeting. He reminded that all documentation must be submitted to the Board Secretary a minimum of 14 days prior to the July meeting (July 12, 2010).


If the information is submitted in a timely manner, this application will be placed on the Board’s July meeting agenda for completeness and public hearing.


BA-4-10 – EJK Realty, LLC – Route 10 East and Candlewood Drive,

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


Mr. Schulz stated this application is on tonight’s agenda for continuation of the public hearing begun at the Board’s May 24, 2010 regular meeting.


Mr. Peter McArthur of the law firm of Azrak & Associates, LLC, introduced himself to the Board and Professionals as the attorney for the applicant and provided an address of 627 Newark Pompton Turnpike, Pompton Plains, New Jersey.


Mr. Sullivan swore in the Board’s Professionals.


Mr. McArthur presented a summary of the testimony provided at the Board’s May meeting, including the additional material prepared by Mr. Olivo which was submitted to the Board on or about June 14, 2010. He is present at this meeting to discuss his findings. Mr. Palus is also present at this meeting to discuss changes to the site plan which address safety concerns relating to on-site pedestrian circulation. He called Mr. Palus to explain the on-site pedestrian circulation changes.


Mr. Sullivan swore in Mr. Palus who provided the following information: John Palus, 1904 Main Street, Lake Como, New Jersey.


Mr. Palus stated his office was involved in the original site plan and design with this Board on what was previously approved. His office recently was contacted about safety concerns at the applicant’s site.


Mr. Sullivan advised that the plan now has a revision date of June 7, 2010.


Continuing, Mr. Palus commented that there were two handicapped spaces in the northwest corner; two more were added for a total of four handicapped spaces. Two crossings have been provided. He also commented on the location of the stairs in proximity to the parking spaces and different options for the final location. There are now a total of 126 parking spaces.


Mr. Sullivan swore in Harold K. Maltz who provided the following information: Harold K. Maltz, a principal of Hamal Associates, Inc., 19 Porter Road, West Orange, New Jersey. Mr. Maltz is the Board’s traffic expert.


Mr. Maltz commented on crosswalks and existing and possible sidewalks.


Mr. Denzler commented about the on-site pedestrian circulation and lighting.


Mr. Palus stated the lighting was designed to maintain a minimum of a half-foot candle in all the areas; in the pedestrian areas it is a minimum of 0.8.


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


Mr. McArthur next called Mr. Charles Olivo who was sworn in by Mr. Sullivan and who provided the following information: Charles Olivo, a principal with Stonefield Engineering and Design, 36 Ames Avenue, Suite 2B, Rutherford, New Jersey.


Mr. Olivo summarized his report dated June 11, 2010, including that he prepared a more extensive, comprehensive study including the shared-parking methodology as well as a revised shared-parking analysis table (Exhibit 1). Exhibit 2, revised shows the different periods of time that occur over the weekday and weekend periods to indicate peaks within the retail center. Two parking demand studies were conducted in connection with the Dunkin’ Donuts parking demand – one at the Morris Plains Dunkin’ Donuts at Routes 10 and 202 and also a Dunkin’ Donuts on Route 46 in Denville. He worked with Mr. Palus on a number of the other aspects of this application and site. He also addressed concerns about employee parking for the Dunkin’ Donuts. He spoke to the staff at each of the sites where demand studies were conducted. What he discovered is that the staff typically are dropped off by a single car and picked up by a single car. Only during one studied period was there one parked car. He believes that at Panchero and Smashburger there will be a more conventional employee parking situation, but there may still be some amount of carpooling. Seats or lack of seats at an establishment is not always a sure way to project parking demand. He provided additional information about typical daytime parking at Dunkin’ Donuts. He commented on probably submitting for a Letter of No Interest from the Department of Transportation (DOT). He also researched the access permit for the property. Based on his experience, he believes the DOT would issue a Letter of No Interest. He also spoke with Mr. Maltz regarding traffic issues; he believes they are generally in agreement about their respective findings. He commented on the importance of considering the type of use in such a setting as proposed in the application; convenience versus offices, medical offices, and the like where people would have to be for work or an appointment.


Mr. Hall referred to page 3 of Mr. Maltz’s report and a possible trip generation miscalculation.


Mr. Olivo replied that he would not use miscalculation, but rather that he used a different rate that is in accordance with DOT – Fast Food Usage. He explained his analysis of the specific situation.


Mr. Maltz commented on the information contained on page 3 in the second paragraph. He spoke about the determination of peak hour(s) timeframes and also provided information specific to strip malls, particularly treatment as one unit versus individual stores/businesses.


Cross discussion about trip generation issues and analyses.


Mr. Schulz asked what would happen if the Board approves this application and subsequently DOT does not issue the Letter of No Interest; but with an issue instead would this void the approval.


Mr. Sullivan responded that it would depend. The Board’s Resolution would state the applicant would have to receive the Letter of No Interest from DOT. But, if there was some material change, the applicant would have to return before the Board for a new approval.


Mr. Hall commented on Mr. Sullivan’s remarks.


Mr. Maltz stated the applicant is not changing geometrically any of the Route 10 curb cuts. The side road, Candlewood Drive, is known as alternate access. The only thing that would trigger anything happening is if the NJDOT changed its method of how the trip generation calculations are determined. He provided details on trip limits and what their effect can be on a permit.


Mr. Conway asked what the trip generation determination impact of a fourth restaurant being added to the strip mall would be. If one of the anticipated restaurants was to go out of business and a diner wanted to move-in, in its place, would the diner have to come before the Board?


Mr. Denzler said he believes the answer is yes because the anticipated restaurants would be granted approval based on the type of food establishment each is.


Mr. Stewart asked if it is the type of restaurant or is it the proper name of the restaurant. An argument could be developed that there really are no two types of restaurants that exert exactly the same impact.


Mr. Denzler stated that most diners are open 24 hours a day.


Mr. Sullivan commented that if Dunkin’ Donuts were to leave and Joe’s Doughnuts moved in, he believes this would be within the parameters of an approval granted in this matter. If a new restaurant is different in the way it conducts its business, then a decision would be made regarding a need to come before the Board.


Mr. Conway asked what if Smashburger decided to add a breakfast menu to its business and changed its hours to include early morning.


Several people stated this scenario would require a return to the Board for a new use variance.


Cross discussion on the issue of the anticipated restaurants and different restaurants coming to the site over time and their possibly changing their menus/hours of operation and when they would need to appear before the Board in connection with a possible use change.


Mrs. Lopez asked if Dunkin’ Donuts is automatically granted the ability to be open on a 24-hour basis. Does this have to be approved or is it a "given."


Mr. Sullivan replied that the Board does not need to do anything. If there was a significant reason to consider decreasing the hours, a condition addressing this could be contained within the Resolution. He is uncertain if there has been a "link" with the testimony and the hours of operation.


Mr. Olivo provided clarification regarding Exhibit 1 of this June 11, 2010 letter. He commented specifically on issues relating to parking at the site in general and parking during peak-hour timeframes. He gave detailed information concerning parking and different types of businesses. He also gave information on the typical updating cycles of the various "trip generation"/parking official manuals.


Mrs. Lopez asked if the applicant has any signed leases since the last Board meeting.


Mr. Sullivan swore in Mr. Edward Kloss, P O Box 1097, Pine Brook, New Jersey. He advised that three leases are signed: Dunkin’ Donuts, Panchero, and Smashburger. He provided information concerning one or more businesses that are considering tenancy.


Mr. Schulz asked if there were any additional questions of the traffic professionals from Board members or the public. Hearing none, he closed this portion of the meeting to Board members and members of the public.


Mr. Maltz pointed out an area where he had different calculations from those of Mr. Olivo; it was the Saturday peak period. He also commented on shared parking.


Mr. Olivo advised that the requirement by the Board for the wholesale building is 50 parking spaces. He referred to the possibility of the tenant being a larger furniture store with a showroom that would have a lower turnover use. He believes the applicant has done the best it can with the information available at this time.


Mr. Hall commented that he believes the Resolution can be structured in such a way that it will be very clear for the Zoning Officer to understand what the Board and the Professionals have done in connection with this application.


Mr. Sullivan recommended that the June 25, 2010 Hamal Associates report be marked as Exhibit B-1.


Mr. Maltz commented briefly on the site plan, pedestrian safety, and the issues of the shared parking. He did not identify anything he would consider red flags. He has used a shared parking analysis many times in the past. He concurred that he and the applicant’s traffic expert had a good dialogue and overall he agreed with the applicant’s traffic expert’s findings and conclusions.


Mr. Schulz asked the Professionals if they are satisfied with the new pedestrian safeguards. Do they provide maximum protection for pedestrians?


Messrs. Hall and Denzler replied they were and offered a number of comments.


Cross discussion about issues relating to pedestrian crossings, signage, and a possible need for railings which will be double checked.


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


Mr. MacArthur next called Mr. McSweeney.


Mr. Sullivan swore in Mr. Daniel McSweeney, 409 Washington Boulevard, Sea Girt, New Jersey, the president of McSweeney Consulting, LLC.


Mr. McSweeney stated he has appeared before this Board in the past on the two previous applications in 2007 and 2009 and was accepted by the Board at those times as an expert witness. He advised he is licensed in the State of New Jersey to practice as a professional planner. He was retained to provide a planning analysis of the variances being sought in conjunction with the amended parking plan submitted to the Board. He has reviewed the site plan prepared by Mr. Palus as well the Borough ordinances relating to land development and zoning, the Borough’s Master Plan, and the reports of the Board Professionals. He also conducted a site inspection of the subject property and reported what he observed. He reviewed what was addressed in the previous two applications and what the outcomes were. The three restaurant uses require a different parking standard than the straight retail use as covered in the Borough ordinance. Mr. McSweeney advised the property has environmental constraints in that there are monitoring wells on the site. The plan submitted to the Board anticipates a total of 126 parking spaces where 188 parking spaces are required by ordinance. The applicant is before the Board now for an amended special reason variance application. He described the work that has already taken place at this location under prior approved applications. He commented on what must be satisfied regarding special reasons. He reviewed the purposes of Municipal Land Use Law that he believes the applicant satisfied for earlier applications and which still apply today for the current application. The work the applicant has completed and is currently doing, eliminated eyesores, dilapidated buildings, and blighted conditions that previously existed on the site. The uses being proposed are consistent and compatible with the character of the area. It is his opinion that the property is particularly suited for the use as proposed; the special reasons variance, a D-1 variance, can be granted and a use variance should be granted for the proposed three small restaurant operations. He does not believe there will be any substantial detriment to the Zone Plan or the Master Plan or any adverse effect on any adjoining properties.


Mr. Denzler asked if Mr. McSweeney is satisfied with the traffic experts’ reports. He also provided additional commentary. He also gave information about his Additional Comments Nos. 2 and 3.


Mr. McSweeney responded he is. He commented on the shared parking analysis and issues relating to the building planned for wholesale type use.


Cross discussion about special reasons variance issues.


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


Mrs. Lopez expressed her concern that there will not be adequate parking, especially in light of the unknown issue of the three other units plus the wholesale use building.


Cross discussion concerning the adequacy of the proposed parking and under what circumstances a new business would have to come before the Board. It also included discussion as to the official definition of "wholesale."


Several Board members shared their thoughts about this application, all of which were essentially positive in nature, especially since the end result will be a significant enhancement in the appearance of the site.


Mr. Maltz pointed out that a benefit for the future will be that assuming this application is approved, when a new proposed business comes before the Board, the Board and Professionals will not have theoretical information about activity (traffic flow, parking issues and related matters) at the mall, but rather will have actual data as to what is occurring and whether any unanticipated problems have surfaced.


Mr. Sullivan referred to items in Messrs. Denzler’s and Hall’s reports and to recommendations contained in Mr. Maltz’s report. He stated that all references to Staples will be removed and replaced by the phrase "wholesale facility." A railing will be added next to the steps from one of the parking lots. Mr. Hall has requested a revised full set of drawings be submitted. He also commented on a specific parking space that was at issue. Messrs. Hall and Maltz will need to sign off on the signage and striping plans. These are what he believes should be the conditions of the approval resolution.


Mr. Hall made a request related to parking. He also referred to a freestanding sign (his June 24, 2010 report) stating it currently violates the variance relief that was granted by the Board; a CO should not be issued until this sign is in conformance with Borough requirements.


Mr. Sullivan noted that a condition will be included that provides an "alert" to the Zoning Officer regarding requirements in connection with any change in tenancy.


Mr. Hall read text relating to off-street parking and front yard setback requirements. He also discussed other matters relating to setbacks.


Mr. Sullivan commented on encroachment on setbacks, setback variance, and the placement of the dumpster.


Cross discussion about the placement of the dumpster.


Mr. Conway moved that this application be approved with the stipulations stated by the Board Attorney, seconded by Mr. Scagnelli.

Roll Call

Yeas: Mr. Conway, Mrs. Mills, Mr. Reilly, Mr. Scagnelli,

Mr. Stewart, Mr. Schulz

Nays: Mrs. Lopez

Abstain: Mr. Bozza, Ms. Scaccia

Motion carried.


Mr. Schulz stated the approval will require a Resolution memorializing the approval of the application. The memoralization will be on the agenda of the Board’s regular July 26, 2010 meeting.


The applicant’s attorney thanked the Board and the Professionals.



Mrs. Mills moved that the following vouchers be approved for payment:


Anderson & Denzler Asosciates – General Engineering $ 35.50

William Denzler – Professional Services for May 2010 $ 28.75

Stickel, Koenig & Sullivan – Professional Services in

connection with Raceway Petroleum v. the Borough $580.00


Mr. Conway seconded this motion.

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.






Mr. Schulz advised that BA-4-09 should be here next month and if not, there will be discussion on what action may be required.


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




Karen Coffey

Board Secretary


Maureen Sullivan

Recording Secretary