Meeting Agendas & Minutes

Board of Adjustment Meeting Minutes 09/27/10

Minutes of the Regular Meeting of the Morris Plains Board of Adjustment held on September 27, 2010 at 7:30 p.m. in the Council Chambers, 531 Speedwell Avenue. The following members were present:

Mr. John Conway

Mr. Martin Reilly

Mr. Roy Stewart, Vice Chairman

Mr. Michael Bozza

Ms. Joan Scaccia


Absent: Mrs. Rosemary Lopez

Mrs. Ruth Mills

Mr. John Scagnelli

Mr. David Schulz, Chairman

Present: Mr. William Denzler, Borough Planner

Mr. Leon Hall, Borough Engineer

Mr. Michael Sullivan, Board Attorney



The meeting was called to order by Mr. Stewart. Mr. Stewart 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. Bozza moved that the minutes of the August 23, 2010, Regular Meeting be accepted as submitted, seconded by Ms. Scaccia.

Roll Call

Yeas: Mr. Bozza, Ms. Scaccia, Mr. Stewart

Nays: None

Abstain: Mr. Conway, Mr. Reilly

Absent: Mrs. Lopez, Mrs. Mills, Mr. Scagnelli, Mr. Schulz

Motion carried.


Mr. Stewart 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 – Eileen & Kevin Bodnar – 26 Overlook Trail

Block: 72.04 Lot: 20

Mr. Stewart stated this application is on tonight’s agenda for completeness and hearing.


Mr. Hall, referring to their September 23, 2010 memorandum, reviewed checklist items, specifically noting waivers requested and recommended. All required information has now been submitted. From an engineering perspective, he recommended the application be found complete.


Mr. Denzler stated that in their September 23, 2010 memorandum they are recommending this application be deemed complete. As to the waivers they concur with Mr. Hall’s conclusion, but add an additional waiver relating to special reasons/bulk variances; the use variance criteria does not apply. They, too, recommend the application be deemed complete.


Mr. Conway moved that this application be deemed complete including the waivers specified, seconded by Mr. Bozza.


Roll Call

Yeas: Mr. Conway, Mr. Reilly, Mr. Bozza, Ms. Scaccia, Mr. Stewart

Nays: None

Absent: Mrs. Lopez, Mrs. Mills, Mr. Scagnelli, Mr. Schulz

Motion carried.

Mr. Sullivan swore in the Borough Professionals and the applicants.


Mr. Stewart requested that the applicants provide a review of their project.


Mr. Bodnar commented they are seeking a variance for building coverage and pervious lot coverage. They are proposing expanding the sun room, adding a front porch and enlarging the existing driveway to permit a second car to park off the street. He believes their proposal will enhance the overall neighborhood.


Mr. Hall referred to their September 23 report, page 3, III, item i. Mr. Hall read the text. He asked about the lack of steps and/or retaining walls in connection with a new walkway.


Mr. Bodnar replied that more than likely there will be steps to a small wall under 4’. He will provide a revised plan showing this.


Mr. Hall commented on several other items, recommending they be conditions of an approval if this application be approved at tonight’s meeting. He specified # III, items b, c, d, e, f, g, h and j. These are recommended revisions to either the engineering plan or the architectural plans or the involvement of the building inspector once there is excavation for the driveway expansion and exposure of the foundation wall. Structural modifications may be required to this wall.


Mr. Bodnar provided additional comment about information contained on the new plan dated July 12, 2010.


Messrs. Hall, Denzler and Sullivan all stated they do not have July 12, 2010 architectural plans. Mr. Hall stated the last plans he has are dated April 22, 2010.


Mr. Sullivan stated that Mr. Hall’s open items may already have been addressed on the new plans dated July 12, 2010.


Mr. Bodnar commented on the grate plan and the grate requirement.


Brief cross discussion on pipes and whether they are low enough.


Mr. Hall stated he believes the issue of the pipes can be made a condition subject to a construction inspection. However, if there is runoff greater than 3", then he recommends a grate.


Mr. Bodnar stated he agrees with this recommendation.


Cross discussion about Item 3b, the engineering inspection escrow account. Typically during the drywell installation there are two inspections – one is the rough hole and the second is before backfill. There are also inspections to witness the paving of the driveway expansion to ensure the paving specification in the ordinance is followed which is 4" of stone over 2" of top coarse paving over that.


Mr. Hall stated the engineering inspection escrow account would need to be approximately $600 to $1,000 for inspections over the course of the project. He also referred to Item l, the last item in his report. He recommended the waiver be granted regarding the existing driveway and the proposed expansion of same.


Mr. Denzler asked about the addition as shown on the architectural plans. He also referred to and commented on the variances required, specifically the issue of the benefits outweighing any detriments. In this case, the detriment is the excessive coverage.


Mr. Bodnar provided additional comment on the character of their house and how it fits into the overall character of the neighborhood as well as the impact of what they are proposing.


Mr. Hall requested that full sized, signed and sealed, copies of the architectural plans be submitted.


Mr. Sullivan stated that if this application is approved, this submission will be a condition of the approval.


Mr. Hall asked if the applicants can provide comment on any impacts on the neighborhood. Are any impacts substantial?


Mr. Bodnar advised that based on the feedback from neighbors over the past several months, he does not believe there will be any negative impacts to the neighbors or to the neighborhood.


Mr. Hall requested the ability for Mr. Denzler and him to review the architectural plans to ensure they are consistent with the applicant’s testimony.


Mr. Conway asked what the compelling reason is for the expansion of the sunroom and the porch.


Mr. Bodnar said that for the most part it relates to their children growing older and having more friends visiting at the house. No other family members are moving in at this time, but this is not out of the question for the future. Parents are also growing older and there is an extra bedroom in the house that could accommodate a parent(s).


Mrs. Bodnar commented that the room will go from a 9’ x 13’ room to an approximately 20’ x 24’ room.


Mr. Stewart opened the meeting for any questions from the public on the testimony by this witness. Hearing none, he closed this portion of the meeting to the public.


Mr. Conway asked about the impact on impervious coverage if the expanded portion of the driveway is not paved. He referred to a house on Washington Avenue (on the corner) where the driveway is not paved.


Mr. Hall stated it must be paved under ordinance – all driveways in the Borough must be paved in terms of new construction. And, because of the grade it would have to be paved whether the ordinance mandated it or not.


Mr. Stewart opened the meeting for any comments from the public. Hearing none, he closed this portion of the meeting to the public.


Mr. Conway moved that this application be approved with the specifications contained in the Professionals’ memoranda and all the conditions discussed during the meeting, seconded by Mr. Reilly.

Roll Call

Yeas: Mr. Conway, Mr. Reilly, Mr. Bozza, Ms. Scaccia, Mr. Stewart

Nays: None

Absent: Mrs. Lopez, Mrs. Mills, Mr. Scagnelli, Mr. Schulz

Motion carried.


Mr. Stewart advised that the application has been approved and the memorialization of the Resolution will occur at the Board’s next meeting on October 25, 2010.


The applicants thanked the Board for its time and consideration.


BA-6-10 – EJK Realty, LLC – Route 10 East & Candlewood Drive

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

Mr. Stewart stated this application is on tonight’s agenda for completeness and hearing.


Mr. Hall reviewed their September 23, 2010 report. He focused primarily on issues relating to the proposed signage. Additionally, he advised that the revised application needs a side yard setback variance and some variances for the freestanding sign and building mounted signs on the new building, the 15,000 SF building. Six signs are being proposed across the front facade and one sign each on both end walls. There is no detail for these signs; it just says a 30 SF box. This is an open item. The revised application will require a side yard setback variance and also needs variances for the freestanding sign and the building mounted signs. Additional information must still be provided; he determined that the application is incomplete.


Mr. Denzler referred to their September 23, 2010 report stating that it indicates the same outstanding submission items as Mr. Hall’s report. He, too, deemed this application incomplete because of the variances associated with the signage.


Mr. Peter McArthur, Esq., 627 North Pompton Turnpike, Pompton Plains, New Jersey, introduced himself to the Board and the Professionals. He stated he will call on Mr. Kloss during his commentary. He discussed the findings of Mr. Hall’s report first, focusing primarily on the signage.


Mr. Kloss distributed colored renderings of the freestanding sign with the dimensions and renderings of the new building with the proposed signage superimposed on it to the Board and the Professionals.


Mr. Denzler commented that the second page of the sign detail does not show the signs that are proposed for the ends of the building. These are signs that require variance relief.


Mr. Stewart stated the Board will rely on the Professionals. If they believe there is enough information to make a proposal(s) conditional, if the Board approves it, this is one option. Another option is that it will be determined that there is inadequate information to proceed.


Cross discussion about the procedure to be followed since this matter is still in the completeness phase.


Mr. McArthur stated he would like to have Mr. Kloss comment. He also added that the three tenants who currently have leases are very anxious to be able to open their businesses and are threatening Mr. Kloss that they will go elsewhere if they cannot open their businesses soon.


This was allowed as part of the completeness phase.


Mr. Kloss provided additional information concerning the proposed signage, including that the sign colors shown on the item he distributed are the colors being proposed. He also advised that Dunkin’ Donuts wants the side/end wall signage as shown. The tenants plan to have store signage that is a size that is in compliance with the Borough’s ordinance. If they are approved for 30 SF, the size of the signs will be 30 SF or less.


Mr. Hall asked about various sign heights of four signs and the proposed sign colors and lettering. Does Dunkin’ Donuts want the side/end wall sign only if access becomes available off Prospect Avenue? He said Panchero has two lines of information and this sign appears much higher than Smashburger. For each separate sign, what is the height and the width. How high is the lettering on the Smashburger sign versus the lettering on the Dunkin’ Donuts sign? More detail (for example, lettering height, various lines of lettering) is needed than that the signs will be 30 SF or less.


Mr. Kloss provided the sign height details that he could; he said he could not provide all dimensions about all the signs. He also stated that the colors of the signs represent the colors of franchise signs. Dunkin’ Donuts wants the side/end wall sign whether there is access from Prospect Avenue or not.


Mr. Denzler also raised concerns about the sign dimensions not being provided. He also stated there are two pages of wall sign criteria that they have no information on. The sign height is based on the percentage of the height of the wall; we have no information whether or not they conform or not.


Cross discussion about issues relating to the proposed signage.


Mr. Stewart asked Mr. Denzler if these issues could be made conditional.


Mr. Hall added that without a certain amount of information, the Professionals do not know if more is required. Just saying a box is 30 SF does not provide sufficient information. They need to know the overall length and the width of the sign to compare it to the ordinance requirements.


Mr. Denzler stated there will be a need for additional variances because just the fact that each one is different does not meet the ordinance. He read from the ordinance: "All signs shall be uniform in terms of style, height, design, and lettering." Per the ordinance each sign should be the same, but the presumption is that they will all be different.


Mr. Stewart asked whether or not the tenants have any documentation that explains the requirements in connection with the signage and do they understand what the requirements are.


Mr. Kloss responded that he does not believe they have any information on the requirements, other than perhaps the most basic information.


Mr. Hall concurred that there is not sufficient information to compare to the ordinance requirements. He realizes the dilemma that these businesses are all national franchises with their own sign requirements. But, in terms of the Borough’s ordinance, this is what creates the need for a variance(s).


Mr. Hall stated that the Professionals need sufficient information to identify where there is not compliance so they are able to advise the Board exactly what variances are required for the building mounted signs. He added that a variance is needed because the sign theme is not consistent. They are not saying the applicant cannot have it, but the applicant must go through the process and provide the reasons why the Board should grant the relief.


Mr. Kloss continued to provide additional information concerning the needs stated by the business tenants and signage issues.


Mr. Hall stated there is an ordinance requirement that says for multiple tenant buildings, the sign theme has to be consistent in terms of color, lettering, etc.


Mr. Hall asked about an apparently new tenant, Great Clips.


Mr. Kloss advised this is a haircutting business.


Mr. Hall recounted what occurred three or four months ago when the applicant appeared before the Board for a parking variance and a use variance to allow these restaurants. This information could have been presented at that time. There was a completeness hearing in August and the issues were the outbound tract boundary line and the elevation difference between the two structures. The Professionals only became aware of the new signage information about two weeks ago. The Board did grant a sign variance in connection with the original site plan approval, but the freestanding sign was up to 20’ 5" with an area of 96 SF


Mr. Kloss stated this was his oversight and added additional commentary about signage. .


Cross discussion concerning variances and the usual process for seeking them as well as when there is a commercial tenancy change and what is required or not required under specific circumstances.


Mr. Hall said there are seven storefronts in the new building, but the detail shows eight nameplates.


Mr. Kloss provided information concerning the nameplates as well as continuing to add more information as to his understanding of what he proposes to do and what he still must submit to the Board.


Mr. Hall stated that one of the white knock-out signs is for the Candlewood Hotel. This sign will require another variance. Based on additional commentary from Mr. Kloss, Mr. Hall summarized by stating that the applicant is really applying for the overall sign dimension of 7’ wide x 18’ tall and within that these dimensions will "float" based on the degree of tenancy within each store.


Mr. Conway stated he believes this freestanding sign is already installed.


Mr. Kloss stated that the structure is there, but the boxes are not. He would also like to include the address on top.


Mr. Stewart asked the Professionals for their opinions on conditions versus variances.


Mr. Hall referred back to the elevation of the building with the signs superimposed on it. They do not have the overall sign width, length and the letter height which is governed by ordinance. Is there sufficient information available for the Board to proceed to consider the variances being sought? The sign cannot be any longer than 50 percent of the storefront up to a maximum of 20’.


Mr. Denzler stated that the sign cannot be larger than 50 percent of the width of the wall to which it is attached, but not to exceed 20’. Further, he commented that the fact that there are nine proposed signs, but no detailed information about them would appear to make a decision by the Board at tonight’s meeting difficult.


Mr. Hall asked about the existing 20,000 SF building. Are there any proposed building mounted signs for this building?


Mr. Kloss provided an answer to Mr. Hall’s question. He referred to previous approval for two signs. He raised the issue of perhaps requesting another variance.


Mr. Hall reiterated that the Board and the Professionals need the specific details for each proposed sign.


Mr. Kloss continued to press his argument for various ways of looking at what his tenants want to do in connection with the signage and other ideas he has for addressing the same.


Cross discussion about the entire process of seeking variances, the roles of the Building/Construction Official and the Zoning Officer in signage issues, the role of the Board, the granting of permits, and the importance of an applicant knowing what it wants and providing very clear and understandable information to support that request.


Mr. Stewart asked for a recap of where the process is now in this matter, stating that his understanding is that the Professionals believe there is insufficient information to know exactly what the applicant is proposing in order to know the parameters of the variance(s) that would apply.


Mr. Sullivan suggested that the Professionals talk with the applicant or the applicant’s engineer in detail about what is being sought and must still be submitted. The application has been deemed incomplete.


Mr. Hall stated that the site plan zoning table is fairly detailed as to the freestanding and building signage. But, he reiterated again that what is needed is the specific signage details for each individual storefront signage. Mr. Hall commented that he does not believe the Board should tell the applicant what it wants; there is the ordinance. The applicant makes his proposal and the Board compares it to the ordinance and then a comparison can be made to identify where there is compliance and non compliance. A major part of the difficulty is that the tenants are national franchises who want the signs they want/need. But, with the detailed information about each sign, the signs can be compared with the ordinance. He appreciates what the applicant is dealing with in that national franchises want their own signage and there will not be a theme because all the signs will be very different in terms of lettering style, color and size. He understands what the applicant is up against. He added that this is the first brand new commercial building in the Borough in many years.


Mr. Denzler provided commentary on how the Professionals strive to maintain consistent signage in locations such as the Kohl’s Shopping Center.


Mr. Stewart commented on his hope that it can be made very clear to the applicant exactly what needs to be submitted so that this application can progress in a timely manner.


Mr. Hall stated the applicant should submit to the Board and Professionals very specific sign details, in color, with all the lettering set, everything would be set and then the Board would approve based either on testimony or on the exhibits submitted with the application. He stated the applicant is here for an amended site plan, side yard setback variance, a freestanding sign variance, and building mounted sign variances.


Mr. Kloss discussed the possibility of including awnings on the storefronts. He also asked if the signage variance requests be withdrawn from the application at this point in time?


Mr. Sullivan stated the applicant can withdraw the request for variances relating to the freestanding sign or all the signs.


Mr. McArthur asked about the notice if they are not going to proceed tonight. He would like to add several additional items on the record in terms of other issues relating to completeness. He referred to his September 24, 2010 letter addressed to the Board Secretary with copies to Messrs. Sullivan, Hall, and Denzler identifying everything the applicant knew at that point.


Mr. Sullivan stated the side yard setback is not an issue.


Mr. Denzler advised that awnings are permitted, but there are specifications in terms of height, lettering is separate. An awning is considered a sign so requirements for signage would need to be followed.


Mr. McArthur asked Mr. Kloss if he wanted to withdraw any application made for a sign variance.


Mr. Kloss stated yes.


Mr. Sullivan added "and any approval of any sign here tonight." The signs are off the table.


Mr. Hall cautioned that this means the existing freestanding sign out in the field will have to be lowered.


The Board took a five-minute recess.


The meeting of the Board resumed.


Mr. McArthur advised that Mr. Kloss wishes to formally withdraw without prejudice all the sign applications he presently has before this Board. This, he believes, leaves the amended preliminary and final site plan application as well as the application for the bulk variance for the side yard setback.


Mr. Sullivan advised of the need for a motion accepting this withdrawal, which includes any and all signs.


Mr. Conway asked how the Board can deem this application for commercial property complete without signage information.


Cross discussion about what this absence of signage information means, including Mr. Hall’s advising that all signage on the previous site plan that was already approved could be built tomorrow. All signage not granted by variance would have to comply with the Borough’s ordinance. No CO would be issued if any signage was not in compliance with the Borough’s ordinance unless the applicant returned before the Board seeking the proper variance(s).


Mr. Denzler stated he would now find the application complete.


Mr. Hall concurred.


Mr. Conway moved that the application be deemed complete based on the withdrawal of all references to approval of signage, seconded by Mr. Bozza.


Roll Call

Yeas: Mr. Conway, Mr. Reilly, Mr. Bozza, Ms. Scaccia, Mr. Stewart

Nays: None

Absent: Mrs. Lopez, Mrs. Mills, Mr. Scagnelli, Mr. Schulz

Motion carried.

Mr. Sullivan swore in the Borough Professionals.

Mr. McArthur stated he has the applicant’s engineer here at this meeting. He briefly reviewed what this Board granted to the applicant in 2007 as well as progress that has been made in relation to the new building and the site in general. He also discussed new submissions from the applicant over the past months.


Mr. Sullivan swore in the applicant’s engineer, Daniel J. Dougherty, Dynamic Engineering Consultants, 1904 Main Street, Lake Como, New Jersey.


Mr. Dougherty provided details on his educational and business background and was accepted as an expert witness. He stated that Mr. Palus from their office has provided previous testimony on this application several times. He has worked in coordination with Mr. Palus over the past five years on the plans involved with this application. He referred to the fact that Mr. Hall raised a question relating to the slope of the design grades across the driveway and for the parking lot associated with the previous building. He has discussed these issues with Mr. Hall, and the applicant, through certain modifications, will comply with his comments. Mr. Dougherty commented on the retaining wall and the previously approved setback variance of 30.1’. He said they do not anticipate any problems with the layout of any of the improvements. No encroachment during construction is anticipated.


Mr. Hall requested that during the construction of the retaining wall in that area that the property corner be staked out where the 33.5’ setback goes to. Please install a stake and label it.


Mr. Dougherty referred to a letter from the Bureau of Major Access Permits, New Jersey Department of Transportation (NJDOT). The letter was issued to Mr. Olivo and is dated July 6, 2010. He asked that it be marked as an exhibit.


Mr. Sullivan stated it will be marked as Exhibit A-1.


Mr. Hall requested that a detail of the sign be pulled into the site plan.


Mr. Dougherty advised that the approved detail was on the architectural plans. He believes the most recent architectural drawings do match floor area of the engineering drawings. It is 20,053 SF that should be shown on both the architectural floor plan and also on the site plan drawing. Revised versions of both will be submitted.


Mr. Sullivan swore in Mr. Edward Kloss, PO Box 197, Pine Brook, New Jersey 07058.


Mr. Kloss stated he is the 100 percent owner of EJK Realty. He was asked about Item No. 3 of Mr. Hall’s September 23, 2010 letter (the issue relates to the new building being 30" below the design for the first floor). He stated he had spoken with Mr. Hall about this and still does not know how this actually happened. None of his professionals know how this happened either; however, he does still want to determine how it happened and be reimbursed for the time and money he lost because of this.


Mr. Sullivan swore in Michael J. Napolitan, 445 Hudson Street, Hackensack, New Jersey.


Mr. Napolitan provided information on his education and business credentials. He stated that while he has testified before many boards over the past 30 years, he has not testified before this Board. He advised he is a New Jersey licensed planner. He stated that prior to this meeting he reviewed the site and the drawings that were submitted by Dynamic Engineering. He commented on a variety of issues relating to this application, including the setback and advancement of the general welfare and that granting of the setback variance would cause no substantial detriment to the zoning ordinance or the Master Plan.


Mr. McArthur next referred to Mr. Denzler’s September 23, 2010 report, page 3, item #2.


Mr. Napolitan advised this has been resolved.


Mr. McArthur then referred to Mr. Hall’s September 23, 2010 letter.


Mr. Napolitan stated the applicant will comply with what the Borough Engineer is asking; more detail will be provided, the ramp, the railing, the finishes on the ramp and all detailed information will be submitted. He noted a floor elevation discrepancy of roughly 4" between the site plan and architectural drawings and advised this will be corrected.


Mr. Hall stated there is a discrepancy that is almost 8’. If the application is approved, he will require a condition where the site plan, the rig survey, and the architectural plans are all identical in terms of floor elevation. As of now, each of these documents shows three different elevations. All the plans must be brought into conformance with each other and be identical. He also asked about the ramp (Sheet 4 of 13). What is the minimum required width of the ramp for handicapped access? He commented on a variety of his thoughts concerning the ramp. He recommended that the ramp width be 6’ to allow for at least 2’ of overhang for a vehicle.


Mr. Dougherty stated the site layout and the proposed building are based upon the roadway right-of-way being parallel and perpendicular. When the curb line was struck along the frontage of the existing building it is very close to being parallel. He said the applicant will do what is needed to comply with Mr. Hall’s recommendation. The minimum required width for a handicapped access ramp is 36". He also commented on maneuverability space issues, including that he likes a minimum of 60" for maneuvering. There are 8’ between the building and the curb line; in the back it is 9-1/2’.


Mr. Sullivan asked Mr. McArthur if the applicant will be satisfied with a 6’ wide ramp.


Mr. McArthur responded that the applicant will be satisfied with this size ramp.


The consensus of all was that the ramp should be 6’ wide.


In connection with the issue of the side yard setback, Mr. Denzler concurred with the planning testimony that there would not appear to be any detriment to the public good based on granting this variance. All his other comments have been addressed.


Mr. Hall commented on the grading plan and what the applicant has agreed to. He recommended that a condition be included regarding the possibility of a need for a revised Developer’s Agreement to reflect any approval this Board grants.


Mr. Sullivan stated this application is for amended preliminary and final site plan and to approve the side yard variance at 33.5’ where 38.1’ was previously approved and 75’ is required subject to all the outstanding conditions discussed as contained in Messrs. Hall’s and Denzler’s memoranda. Other conditions discussed include Mr. Hall’s condition that the 33.5’ side yard would be staked out, that the site plan, survey and architectural plans would be rectified in connection with floor elevations, that there be a revised Developer’s Agreement if deemed necessary, to have the old sign details that are on the architectural plans pulled into the revised site plan, and the ramp being narrowed to 6’


Mr. Conway moved that this application be approved with all conditions as discussed, seconded by Mr. Reilly.


Roll Call

Yeas: Mr. Conway, Mr. Reilly, Mr. Bozza, Ms. Scaccia, Mr. Stewart

Nays: None

Absent: Mrs. Lopez, Mrs. Mills, Mr. Scagnelli, Mr. Schulz

Motion carried.


Mr. Stewart stated this application is approved and will be memorialized at the next Board meeting.











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




Karen Coffey

Board Secretary


Maureen Sullivan

Recording Secretary