[Music] separ let's call the meeting to order welcome to the uh March 21st meeting of the Haden Heights planning board um let me get the statement here this meeting is being held in accordance with the sunshine laws of the state of New Jersey chapter 145 by mayor and Council on the planning board for official notices notice of this meeting was posted on the burough bulletin board and the bur's website for that purposes uh I have a roll call Suzanne Miss bonac Cory here Mr duus here chairman Hansen here mayor Hal here um councilman Hearn Mr famular here Mr Schmidt here and Mr shriber uh we okay that's fine uh appears we have a quum let's have a flag salute please I pledge allegiance to the flag of the United States of America and to the Republic for which it stands one nation under God indivisible liberty and justice for all okay I don't it's not on our agenda but the first order of business tonight we're going to swear in a new member and that would be Scott shriber and who is the other alter is the other alternate in attendance tonight Suzanne that we were going to appoint Lauren McCall Lauren's not here I guess I guess so we'll have a we'll have Elena swearin Scott welcome to the board good to have you I didn't mean to I didn't know where we were going to fit that in the agenda drop that on you like if it was back at rework time I would still have the feel memorized Steve price still has memor what's that swearing in I blocked it out I said in January January we're good I blocked it out by March expires on February 1st I might have it from you know what I might have it in the January folder me see here all right you ready here we go I'll come closer to you [Music] sorry support United States will the government esta in the United States and in St under the authority of the people and perform allice okay moving on we have uh just one item of administrative business this evening and that's the approval of the uh February 15 2024 minutes has everybody that was here had a chance to review the minutes if so are there any comments or revisions seeing none we uh ENT a motion to approve the minutes give a second all in favor I any opposed extensions okay no theion extensions I'm sorry uh public comments we'll open the meeting up to the public at this time for uh any comments on any matters that aren't in front of the board this evening so if you have a comment related to a specific case please wait until that case is being heard we'll have uh public participation during each of the individual cases so if anybody would like to speak about anything that's not on the agenda come forward at this time seeing no one we'll close the the public comment uh new business first case this evening case number 24-2 d3p unav LLC 414 White Horse Pike block 37 Lot 8 this is for an amended site plan and we'll we'll be having our conflict solicitor in Mr yo did I get that righto I'm sorry that's okay welcome Mike thank you don't go anywhere Elena we got plenty left I'm lucky I the one I run stand there represented by Mr bur who I haven't seen in hours hours yeah six hours all right uh good evening uh Mr chairman uh board members Christopher burr from the law firm Del du Lewis and Burr here tonight on behalf of the applicant unav LLC um this is an application for amended site plan approval uh for the property at 414 White Horse Pike it's block 37 Lot 8 um there's some history associated uh with this property and its approvals um it was initially granted a use variance and site plan approval in 2017 uh to to um develop a um mix mixed use structure into residential apartments with Associated site improvements um since that time this application has been back before the board a number of times for some amendments to that site plan and um the development is currently under construction and uh some storm water problems uh have Arisen during that construction as a result of which um our design team um has um made some technical amendments to the storm water improvements at the property and um since amended site plan approval solely with respect to those uh storm water improvements um here with me tonight I've got uh Marty Irving and Rich Overman uh from the applicants uh design team um Irving Design Group um and Mr Irving will be providing some testimony as to the plan changes that um pardon me that have been made I believe they've both testified numerous times before this board so we'll accept their uh or their respective professional credentials you want to have them swor in at this time yes please you swear swear and you swear and affirm the testimony you're going to give tonight is going to be the truth the whole truth and nothing but the truth so help you God thank you let the record show that we also swear in our board engineer Steve P the case um I understand MOS is technical so we'll turn it over to your Professionals for their okay presentation uh we ran into into very difficult soils in what was originally an open Basin that had been previously approved so as a result of the poor soils and the inability for uh the storm water to infiltrate uh down into the ground we've now come back with a design that is a combination of a rain Garden um in the area where the former Basin sat uh a outfall wear structure and we're now going to uh relocate the existing B Inlet that was constructed out into Haden Street and provide new pipe to uh discharge all of our uh on-site storm water down to the existing system near Atlantic Avenue all of that was uh worked out very very diligently with Mr Box's office and uh back and forth throughout the last uh month or two the uh original approval uh the design of the Basin was based on a 25e storm and and this system fully handles that 25e storm as well as providing uh uh no negative impact to the adjoining neighbor all the way up to the 100-year storm the uh only real site change to what's existing there right now in the asilt condition is that the retaining wall that had been uh built will be removed uh the full height curb along these parking stalls will be turned into a flush curb so that the water can simply run directly into the new rain Garden area and that be Inlet will be relocated out the street U we'll we'll work with Mr Box's office to address his handful of comments have no objection to the um the uh revision he's requesting uh One technical issue is uh item number three the invert of the 15inch pipe that we're having here just as a uh a relief for the very lowest area of of this rain Garden we're going to raise that invert up so it's not a problem and potentially make pipe a little smaller so we have enough cover on the pipe it doesn't need to be of any significant size it just needs to allow for any water that would sit in this loow low point to discharge into the new outfall structure if I can answer your question I I was going to say uh it might be appropriate rather than have the board comment or ask questions uh turn it over to Steve because this is pretty technical review there's still questions or comments after Steve goes the uh to our March 18 2024 review where we indicated uh under the project on page two the previous approval so this has had a few different iterations and the storm water has had a few different iterations uh the one point I just want to note is since the original approval this is not raising to a level of a major development under the storm waterer rules uh no more this application and previous application did not introduce more than a quarter acre of bures nor did it U disturb more than one acre uh previous versions of the storm water were a uh uh subsurface Basin uh that was completely uh disconnected from any other storm water meaning one site and then when that storm water Bas in recent the pass that he overflow across the sidewalk across the curb and down the street and down in Ence to where the inlets that are now proposing they came in for a modification setad of subsurface they had introduced The Basin they did have soil testing all the soil testing in terms of the submitted and approved application materials indicated that it would Dew within 72 hours unfortunately um in real life that's not the case and that's why they're here this evening um I support this uh hard piping of the 25e storm completely off the site past the other adjacent properties and down to the municipal storm water system that's where the flow is going predevelopment that's where the flow is going after it fills up in the Basin uh so this I believe is the most responsible way to take care of the storm water on this existing site with the with the infiltration U uh condition of the soils um just want to point out that the brain Garden is a green infrastructure under the storm water best management practices and it does have an under drain so M Irving am I correct that you're not relying at all on any infiltration at this point that is correct so goes into the rain Garden fills up to a bit goes into the Overflow pipe goes down the street and then anything that's in that rain Garden will actually go through a perforated pipe below the rain garden and go into the inlet so we should not have any other uh instances where the percolation uh would cause this thing not to be water within 72 hours correct uh and then we added some additional specific uh uh recommendations Mr Irving um are they all agreeable will you be able to comply with all those yes review comments yes one last thing we would like to get on the record is given the location of the pipe at Han Street we're uh anticipating potential uh Crossing conflicts with existing utilities so if if that were to occur and become an issue in the field we simply asked that the board would allow us to do an administrative approval with Mr Bo's office to uh adjust things that may need to happen because of utility conflicts during construction you're just talking about pipe grades and that kind of thing pipe grades potentially moving it to the opposite side of the street tying into the other Inlet still going to be the same intent same intent same design I don't have a problem with that no uh calculation problem it's just the physical potential we don't know how deep the gas is and if it ends up in the way we're going to have to you know move around so if that's okay allowing our all office just to work out the final construction details again nothing would change in terms of the capacity of what they're representing in their application but instead of the curved line adjacent to their site it might be the curved line across the way uh restoration details will be uh required they have to do uh Paving of their entire trench um and no additional Paving other than their uh extended trench area would be required here that is not under any more turn any questions comments from the board I just have this one question this section A here is this the is this the inlet here yeah that's the inlet that would appear within the former Basin area now rain Garden that's really the Overflow structure right okay so the so the the high side on the high side yeah the high side yes CU then it it drops within the inlet it within the structure it drops to the lower elevation out well it's actually the same elevation in and out it's we have to revise that oh that's that's the revision I refer to it will be the same so it will not that was one of our comments that the under drain was at a lower invert so the re infiltration as Mr testified now they will be now they be the same and they will not re relying on and is there any kind ofes or something over there'll be a there should be no the Weir is actually M Irving I'll let you describe your well I guess the short answer is no the the the pipe in the rain Garden is full barried uh in in the sand and it's perforated to allow um that to infiltrate only into the pipe not below the pipe um often they come with Filter Fabric sock but that's sort of you know they end up clogging so we don't love those and then the Box itself it's it looks like a you know an inlet it it's it's a sitting up if you will out of the you know above the Earth so that when that 100e St store comes the grade at the top will accept that and put it into the pipe industry Mr Irving there's also Weir on the face of correct on that face of that box can you describe the size of those wears I think you're concerned about safety someone getting pull into the box so the box has a you know a cast iron grade over the top of it and then ins theide of the Box just below the grate will be a notch two in by one foot that allows the water when it rises to that level to get into the box so the rear is actually a 2in slot so there would be not there's not a necessity in terms of in my opinion of having any sort of safy graes saf graes roer own yeah two two to four in anyway thank you is there any maintenance that will be involved with this that over time well general maintenance within the rain Garden itself including you know like Landscape Maintenance there's a vegetative strip proposed as Mr Bach mentioned to meet the the best man management green practices so normally with something like that once or twice a year uh that's you know weed whacked down and then it regenerates itself otherwise it's simply mowing the lawn um the the system itself on site the only maintenance that could occur is if somehow foreign object got into it it would have to be cleaned out thank you Mr Irving um I believe I I did you submit a storm order maintenance statement on on this no cuz it's not a actual Basin and we're going to mow it you know that's all it is it's not Dr veget strip pip so there wouldn't actually be an and for that so it's not a major development so it's not found to not Reed anyway there's no there's no requirement to refresh a basin for infiltration or anything else it really is a V strip going into a PL down the road so I wouldn't require any additional right I think that's appropriate anyone else uh at this time we'll open this application up for comment from the public if uh anybody from the public wishes to speak come forward we'll have be sworn in by our by our conflict solicitor seeing none we'll close that uh portion of the hearing uh bring it back to the board Michael you want to uh give a summary of what we're entertaining here yes so um what you have for you is a um amended uh site plan application for based on the storm water management controls on the site um as was already highlighted uh use variance and preliminary final site plan approval was granted on May 18th of 2017 uh in May of 2020 amended site plan approval was granted to reduce the size of the proposed building um as well as to address the proposed underground detention system uh then there was another amended site plan approval on May 19th of 2022 uh this was to create temporary parking um and then there was a further amended site plan approval on September 21st 2023 uh regarding site modifications uh raising the parking lot elevation against the building reconfiguring the handicap parking area relocation of the trash enclosure and uh addition of sidewalk from the building to the sidewalk along Haden street so as was already highlighted this site plan is been before the board a number of times for different uh site plan approval um this is all highlighted in Mr Box's uh letter that he uh provided to everyone and at this time uh as Mr uh Irving highlighted uh he's willing to comply with all of the comments made in Mr Bach's review letter um at that there's really no issues with this amended site plan application at this time uh at this time it complies with all uh ordinances and it's not asking for any waivers or variances so as long as it's in compliance with the ordinance and they're willing to comply with Mr Bach's review letter it is prepared for approval and if I could just add briefly um just uh if the board is inclined to approve the amended site plan um we would ask that the statement that Mr iring put on the record that uh any field changes or construction details that need to be uh made can be worked out um through Mr Box's office anything that doesn't substantially alter the intent of of what's been approved this evening obviously yes um would anybody like to make such a motion I'll make a motion to uh approve the application with the statement that was for Mr Bach to be able to make a determination of any changes that might be needed in the field the approval subject to a satisfying Mr Box's letter and be consistent with what's been presented yes exactly anybody want to second the motion second roll call please or any discussion on the motion I'm sorry do that first seeing none real call Suzanne Miss bonac Cory yes Mr dulus yes chairman Hansen yes mayor Hal yes Miss Heron yes Mr famular yes Mr Schmidt yes and Mr shriber yes motion passes thanks for coming in guys Michael thank you for coming in this evening always a pleasure to see you sir pleasure to see you guys everybody see let me know you're dismissed basketball gam I get uplit screenit screen right okay morning to actually we hav to do the resolution last does suzan know are board member our new board M we have to do the resolution anyway still suzan agenda I'm like I know we had something I'm looking I'm like I thought we had a case last month like we haven't had a month where we didn't have a case we have to do the resolution last no we were on table on that for those Provisions right wasn't in the agenda I missed can't go off SCP all right while while he's get while Suzanne oh I gota wait for Suzanne we did have one administrative item that I missed in advertently earlier and that was uh we have resolution from last month that we need to approve and that's for uh the one case that we heard last month and that's Georgia Maria galara for lot coverage garage height and Max garage size variance it was granted for 38th Avenue at block 42 Lot 8 is everybody had a chance to review that resolution that voted on the case I did I know Dean had some some corrections that were already made kind jump okay and it should also be noted that that was the correct resolution was the one that I had sent out like after Suzanne sent the original that was the correct one we'll swear in as soon as we're done with this resolution um did anybody else have any comments or questions on that resolution before put it to a vote seeing none entertain a motion for approval we have a second roll call the voting members Suzanne please miss bonac Cory yes Mr dulus yes chairman Hansen yes mayor Hal yes sorry made um councilman Hearn Mr famular yes and Mr Schmidt yes motion motion passes okay back to the agenda of I understand we have another new member that has joined us this evening another alternate La McCall right um we'll have Miss McCall sworn into the board at this point standing and ra your right I st your [Music] name and theit of the state of New Jersey that I bear true Fai and Allegiance the same the unit States and in this under the authority of the people and faithfully and [Music] per Welcome to the we look forward to working with you and we're back to full strength okay we'll move on our our second case this evening is case number 24-2 d1p and that's Keith and Beth forchers 1009 Sycamore Street block 70 Lot 19 welcome back Mr Burr thank you Mr Hansen um I know did you want to talk about your findings before we get started on the case we can maybe let him introduce it and then we can I'll let you handle it however you want Mr Burr all right good evening again Mr chairman and board members uh just for the record Christopher Burr uh from the law firm Del duuk Lewis and Burr here on behalf of the applicant um Keith and Beth forchers uh who are the owners of uh the property at 1,9 LaMore Street pardon me I'm here tonight with Mr Mrs uh forchers as well as our planner Jim Miller um pardon me uh the property at issue here tonight it's as I mentioned it's uh 1009 pamore street it's block 70 Lot 19 it's in your R2 Zone and it is currently improved with two existing single family homes um the main home on the property number 1009 it is um the historically protected uh Colonel Joseph Ellis house um built in the mid 1700s um there's also a rear um house at the back of the property that was built in the 1980s pursuant to a use variance um by by a by a prior owner of the property um the applicants are here tonight seeking um subdivision approval um pardon me well I'll back up a step I do have some exhibits I which I should pass out uh now before I get too far into the uh substance I'll just note these um for the record as I um hand them out thank you and are all these exhibits were they submitted with the application uh some were some some were not I'll identify them um now so just uh for the record um exhibit A1 it's a copy of the subdivision plan that was uh subed as part of the application exhibit A2 is three photos of the property all of which were also submitted with the application um exhibit A3 is a handdrawn floor plan of the uh rear home uh at the property um exibit A4 is the national register of historic places um listing for the colonel Joseph Ellis house um exhibit A5 is a copy of the 1983 uh use variance approval um resolution which permitted the additional home to be built um exhibit A6 is a copy I apologize we don't have a a copy but it it's a copy of a 2002 subdivision plan that was um proposed for this property and exhibit A7 is um a set of the January 2024 minutes of your um historic preservation committee um so Mr B the minor subdivision that's in exhibit is the same one that was submitted yes yes it is all right so um with those exhibits um before you I'll get into the subance a little bit so this is an application uh by the borers for minor subdivision approval with some ancillary bulk variances um the intent of the application is to place each of the two existing homes onto its own tax lot um and to therefore convert thank you to convert uh this property from a non-conform use with two homes on one lot into a conforming use consistent with the rest of the neighborhood um that aspect of the application is in my view fairly simple and straightforward um but this property has some history which complicates the matter and the relief that we need um specifically uh when this use variance was approved in 1983 uh to permit the second home to be built on the lot the zoning board at that time uh required as a condition of the approval that the owner deed restrict the property to prevent it from being subdivided in the future um so to permit the subdivision now we are asking uh this board to consent to the applicant's removal of that deed restriction and uh to remove that condition of the 1983 approval um and Beyond those terms of the 1983 approval the history of this property does not end there either um in 2002 the prior owner of this of this property the same one who got the got the 19 1983 use variant um he came to the owning board at that time and he in fact sought a subdivision um that request as memorialized in the board's 2002 resolution um it was based almost entirely on the owner's financial interest and inability to Market and sell the property and it was denied by the board on the basis of res judicata um so obviously there's a lot of history here on this property to deal with um that impacts application um but despite that sort of winding path of this property from 1983 till now uh there are a few questions before this board which I think are fairly straightforward um the first question is um despite the 1983 condition of the approval and despite that 2002 subdivision denial are there changed circumstances now um which permit the board to hear and decide its application on its merits um we think it's clear that there are for reasons I'll address in a moment um the second question is if that condition of the prior approval were to be removed can that use variance can can that prior approval still be justified in other words can that 1983 use variance continue to meet the positive and negative criteria which would have been necessary uh for it to be graded in the first place um here reality is that in many ways um that consideration doesn't really apply because what we were seeking to do here is eliminate that use variant Al together by making this property conform so we think that's a consideration while it typically applies in a case where you seek to eliminate a condition it shouldn't really apply here because we're seeking to eliminate the use variants altogether um and the third question before the board is does that deed restriction continue to serve any useful purpose uh in light of this of the circumstances um and so I want to touch on each of those items just briefly uh before we get into our testimony um first is change circumstances um as part of the packet I gave you there's exhibit A5 which is the 1983 use variance resolution um and as you'll note in that resolution it was noted at that time by the board that this property is oversized and could easily have been subdivided at that time um it was kept as a single lot with two homes in large part because of the applicant's private interest his his quote a preference to maintain both homes together on the same lot uh because it seems his original intent was for the rear home to serve as an accessory unit for family um but those facts no longer exist and have not existed for a long time um the Borchers are the current owners of the property they've been the owners for 20 some years now um they do not have any use or need for an accessory uh dwelling um and in fact they have no family or other individuals who could feasibly use that rear home in that as an accessory dwelling any at any time in the future and in fact as you're as you'll also hear in the testimony that rear home has not functioned as an accessory dwelling in in about 30 years um each of these two homes operates and is resided in as a independent uh dwelling there there there's no family connection between those two homes they're independent um homes on the same lot um and uh that re home built in the 80s has operated as a r property for the bulk of the last 30 some years um also very importantly as it relates to change of circumstances um is that uh in in 2006 as part of the Burrow's periodic uh reexamination of its master plan um a a new housing goal was articulated for the burrow uh specifically a goal was articulated to encourage owner occupancy of all single family homes so there are change so if we're looking at the question are there changed circumstances since the 1983 approval and since the 2002 subdivision denial I think uh we have to consider that four years after that Denial in 2006 a new a new burough planning goal was articulated um which the existing property as currently configured does not meet and which if subdivided pursuant to our plan to provide for two independent single family homes on two tax Lots would be met um in addition um Pardon Me In addition um well so I'll stop there for a moment and just I'll note that you know in light of those considerations plus others that you'll hear on the record tonight we think looking at the question of whether there are changed circumstances since um this property was last before this board we think it's clear the answer is yes other R chains change circumstances now um the board's also got to consider whether if this condition were to be removed can the original approval still be justified and does this deed restriction continue to serve any useful purpose um so on those questions I think we have to note that the original approval does not articulate any reason in imposing this condition in preventing future subdivisions um we cannot say for certain what the intent was in imposing that um condition yeah at that time I wasn't even born uh the current applicants didn't reside there no one on the board to to my knowledge no one on the board then is on the board now no one can say for sure what the intent was at that time um but what the resolution does make note of is that preserving the historic home and ensuring that the new rear home were connected to approved utilities um were some of the goals of of the approval and and uh were conditions of that approval um both of those goals are already met and will continue to be met in the future um and you know but beyond that the resolution in includes no rationale for imposing this condition um what we can know is that um the lot at that time was certainly large enough to be subdivided um into two in into two building lots and that point is explicitly noted in the resolution um that continues to be true today uh your zoning ordinance has changed the bulk standards have changed um but the lot today can can still be large enough to comply with the requirements of the R2 Zone as it did uh 40 years ago when that condition was was imposed um finally does the Restriction continue to serve any useful purpose um here we think the answer is clear that it does not um again as I mentioned we don't know what the intent was with that restriction but uh if the intent was to requ ire the rear home to be used as an accessory dwelling uh that intent has not been met in in an excess of 30 years um and Mr borchard uh cannot use the property in that way in the future as he has no family or others that could feasibly use that home as an accessory dwelling to the main home um Instead This restriction at this point serves only to force this property to remain as a use variance with two with two homes on the same lot which the applicant has no need for and which in is inconsistent with the planning goals of your master plan um so with those considerations in mind uh we think it's clear the relief that we seek tonight subdivision approval and the lifting of these old restrictions should be granted um what we're looking for at the end of the day is approval to remove this prior condition and subdivide um the lot this will result in taking away an existing use variants um providing two lots with conforming uses um it's going to be consistent with the master plan goal of of promoting single family home ownership and it's not going to impact any of the neighbors or the public uh no further development here is proposed all we're seeking to do is to draw a line on the map um the existing conditions on the property today will continue to exist in the future if the appalation is granted um and the and and the only difference will be that the rear property rather than being renter occupied can be owner occupied and and sold to to a new owner in accordance out um with the goals that your master plan envisions um so that was a bit of a u you know long introduction touching on the legal standards that we need to to address as part of this application but I think that was important to under you know to sort of set the table there for the testimony uh that you're about to hear um I will note um we have received Mr Box um review letter he notes a number of Corrections and comments and plan changes we have no problems with complying with any of those coms comments and uh will agree to work those out with his office if his application were to be approved um so with that introduction I would like to um call Mr borcher to uh to uh testify before we continue can we first establish any exhibits um that wer included in the application and then sure so uh app the exhibits that were not part of our application submitt were exhibit A3 the um the sketch floor plan of the rear home um A4 the national register of historic places listing for the main home uh A5 the 1983 us variance resolution A6 the 2002 subdivision plan you said A6 A6 and A7 the January 2024 um minutes of the historic preservation committee okay while you set up your Witnesses um I did want to go over jurisic this request and also make sure that the applicant attorney is aware um you know so I thought that um the explanation given was excellent in terms of the history of this application it is um complicated and very very diff different than to seeing um however the heed restriction is a little more complicated than simply removing or excising a condition of approval from a board resolution um many times we have apps come before the board that is is requested that we remove a from resolution that is something that the board can grant if there are change circumstances you know is a reasonable request and in this case the rant of the use variant was conditioned very specifically on that deed restriction and that restriction was as said was filed and there's case law that says that a municipal board lacks um the power to relieve an applicant from a deed restriction imposed um there isn't to be honest a ton of case LA on the matter um I read a few cases that I think are pretty instructive and while they're not exactly the same I think they all lead the same conclusion that I'm frankly not 100% confident that the board has jurisdiction to even this restruction um I'm gonna just give a few and hopefully quick um examples of the case La just so the board is kind of more familiar with what we're talking about here um there is a case law which is fre reference um and sometimes only reference as like the only published Cas on this type of thing Denville um C planning board and in that case the plaintiffs had received major subdivision approval by the board and it was conditioned on a remaining track land being subdivided um and construction was limited to single family resence so we know this is not exactly the same with our situation here but later the point of appli were to subdivide um that remaining track which was the subject of the Fe restriction and the board ruled entirely that it lacked jurisdiction uh to review even review the application um and what the the ultimately happened is what the court decided that um the deed restriction was imposed as a benefit to the community they were the third party beneficiaries so it's a little bit different than a typical restriction in place by say the PRI owner to a current owner when you're selling a property this is this is a different um a different situation it is that a little complicated but here um the only party or the only relief that the applicant can seek is really with the um with Superior Court and chanc Division and so I this was not the only case that says that and although this case particular subdivisions there are other cases that are more particular to use variant appr um and I'm not going to you know continue to go over all the case law but the point of the matter is that ultimately I don't really feel comfortable and in one of the cases that I read um after the matter made it to court the township actually requested that the matter get remanded to the zoning board to make a finding of change circumstances so potentially if this matter made it it could come back to the board anyway and to be I think fa to the applicant what I propose is that the applicant continues with their application um the board make findings whether you know they feel that there is a change circumstance or there isn't um and go over you the Le criteria that the app attorney mentioned um and then as Aion of approval request that They Se the Le if I can address that briefly so I am certainly as we discussed earlier this week um I am very familiar with the case law dealing with deed restrictions that were imposed as conditions of Prior approvals the um I'm gal case on that issue is the Susa case that I believe you mentioned a moment ago that's a case where the deed restriction at issue explicitly recites that it is for the benefit of the public it's it it says that in the body of of the restriction and the cases that have relied on that have all cited to the fact that where the public is an Express beneficiary of a deed restriction that's when only the superior court has jurisdiction to address the deed restriction that's my reading of the case law at the very least and there there is a case um this I pardon me I miss high it's not one that we discussed it's one I found subsequently to our discussion it's um Martins V Township of Cranford it's a 2020 um appell division case that makes that distinction um a board does have jurisdiction to agree to lift a deed restriction where unlike Susa it is it is not a deed restriction that is expressly in the public interest or for the benefit of the public um irrespective of that issue which I think we could probably agree could be worked out between the attorneys after the fact um the I believe it was the K one at tck case that um you had pointed out to me I think the procedure that's implicated there is the board should review the application make its findings on the merits because the board's action as to how it decides the deed restriction issue whether it agrees there's change circumstances whether the board agrees that it would be appropriate to lift the Restriction the board would certainly be a necessary party to that Court action if the deed restriction were to be lifted so if we were to get the or if we were to to seek that in court so if we were to get the board's consent at this time before the board that impacts our steps going forward on on the legal issues um so I think the the board has to have a say in that matter and there's no reason it has to be done after a court action to let the Restriction is filed rather than before would that would be my view of that and so so I think my request would be that we hear the application on its merits if the board acts favorably on it um and makes findings that would support lifting the deed restriction um a condition of approval obviously because a subdivision can't be filed until the board signs either the deed or the plat um the board wouldn't sign that theer plat until after this legal issue is [Music] resolved yeah it's um Martins V Township of Cranford yes absolutely yeah we um we'd certainly uh be agreeable to that great thank you okay uh she wasn't planning on it yeah yeah we should thank [Music] [Music] you thank you a yeah and actually just before we jump into the testimony um for the record uh Mr Miller has also prepared a a sort of marked up and highlighted version of this division plan it's the same document that you have before you as A1 although this is a marked up version so I don't know if uh for the record we should I refer to this one as A8 but it's the same document as as I left before you as A1 all right Keith so that was a lot of uh you know legal back and forth um but uh let's turn to by your application so um you're the owner of this property correct that's right all right um let's talk a little bit about the existing conditions um so the main home on the property it's 1009 pamore Street correct that's the front historic home where we live yes okay it is a designated historic building um listed on the national register of historic places correct that's right all right and and only the home itself not the overall property is is is that protected as historic considered an historic building not an historic site as as per I think we have that yeah and so exhibit A4 that's the national register of historic places um listing correct yes and in that sort of middle of the page the checkbox is it's listed as a as a uh building rather than a site uh correct they have categories of properties and buildings site District and it's only checked building not site this is what we presented to the historic preservation before we came here and they found that relevant okay um so the main home9 Sycamore Street that's your home correct that's our home okay um and as I mentioned as as you heard a lot about as you heard a lot about in the introduction uh there's also a second home on the property that was built built in yeah built in the 1980s yes and that home was was built uh pursuant to a use variance that was obtained by the prior owner Mr McAdams correct that's right okay um now is the rear home an accessory dwelling to your main home or do the two homes operate independently they've operated completely independently ever since we've been there prior to that okay um so let's talk a little bit about that so let's um we've included in the in the exhibits um a three which is a you know a handdrawn um you know floor plan of the rear building which I think uh you drew that correct yes based based on your knowledge of that home since you own it right that's that's what we're looking at here yes okay and so um how big is the is is the rear home it's one approximately 1,320 square feet okay um two story it's a twostory colonial style building with a large attic a um two bedrooms two and a half bathrooms garage full kitchen living area screen porch small deck and patio and if we look at exhibit A2 the photographs um the second document in that packet um that's what the rear home looks like right yep that's it it's it's a large you know large home of the same scale as other homes in the neighborhood it's bigger than a lot of them yeah okay and so you know would you agree that home has the scale and all the features of a standalone single family home absolutely yes okay um it has its own separate uh mailing address correct 1011 Sycamore Street yeah it was never given like a unit a or that kind of thing okay 1011 Sycamore it's own mailing dress yes so the property is not a 1009 a unit one and unit two correct it's it's no never was two Street numbers yeah yeah all right uh does the property have its own water service separate water separate Gas and Electric separate parking it's all separate yeah and there's nothing uh joined at all so other than I think both properties are accessed through the same driveway but other than that yeah that's that's true well there's a driveway entrance is shared but other than that these two homes operate entirely Park they Park up there and we park to the other side okay so one driveway access but beyond that both property both homes operate entirely independently yes okay um let's talk a little bit about the history of um the development of two homes on this lot so as as I mentioned um Mr McAdams in 1983 saw and received a use variance to construct that rear home correct yes all right and are you um familiar with So you you're familiar with Mr McAdams and his reason for doing that generally yes he's Beth's Uncle so we knew somewhat about it okay uh not limited from that I learned a lot more when I read about what happened then okay um you're understanding that he was he sought to build that rear home um with original intent to um have an accessory dwelling for for his in-laws that's right his that that's what he that's what it was that's who it was built in specifically for yes okay um and you've read the 1983 use variants approval correct yes and you're familiar with the fact that that resolution notes that the property was large enough to be subdivided but his preference was to keep those two homes together on a single lot right I mean you're familiar hist I understood it is that they want yeah they did not not seek to have it subdivided then and they mentioned that they it seemed as if they could have gone that route from the very beginning but they didn't and uh then they built what they built okay um once that rear home was built are you familiar with whether or not it actually functioned as an accessory dwelling as opposed to an independent uh home well they his in-laws then of course moved in but she only was there for a matter of a few months and had to leave and was had to go to a care facility and then his father-in-law stayed for a few years until he passed and at that point there's never they it's he had to rent it there was nothing else to that was in about 1990 about 1990 I think okay um so after about that time the property began to be rented out and used as an independent dwelling unit is that right that's right okay um because the family needs that gave rise to the initial application they had changed yeah um yeah now um when you were conveyed the property in 2000 or so you came to own the property in 2003 correct 2003 yeah we inherited there were tenant there when we moved it okay and um has that home generally been ten pied since then it has other than a brief period of time where we tried with Beth's parents to see if we could get it to work that way and it's it it didn't go very well like we immediately had to put a chairlift in her father was falling a lot we had to get more and more care and then they ended up having to move out to um uh senior facility and uh I just came to the conclusion that at that point it's not it's not built it's not good for that type of use it just isn't conducive to that for older people I would my parents now live in a elevator building which is way better like I could never put them in in this house that they wouldn't be able to get around in there the layout and the the layout the stairs the steps out in and out and um um just you know thinking about the times I had to go back out there pick him her best's father off yeah yeah so to attempt to use this home now as an accessory dwelling for parents or other relatives it just it's not been feasible in your experience it hasn't been and after after they moved out we've had tenants since then okay um at this point do you have any family or others who could feasibly use this home in the future as an accessory dwelling we don't I don't we don't know okay um let's talk about your plans for the property in the future um do you intend to continue to reside at the main home long term yes we want to live there the rest of our lives that's we we've decided we had a discussion and that's what we want to do okay um and um the reason we're before the tonight is you're proposing to subdivide the property so each of these two houses it's on its own lot correct yes um explain to the board in your own words you know why do you want to do that well I don't want to be a landlord anymore uh we don't like looking for tenants I it's I find that a stressful situation but more more importantly I don't like having our time attention money divided between maintaining two separate houses uh I want to concentrate on maintaining and preserving our the historic house that we live in that has been in my wife's family since 1940 and I don't know we just feel an obligation to really keep that up and want to put all our resources into that and would like to be rid of this house that is like I've I said saying it over and over again how separate it is from us anyway and we have no use for other than for tenants and that's what we'd like if I'm hearing you correctly you take fairly seriously your a responsibility to maintain and care for the historic home that you live in right yes and having this second home on the property that you own and are responsible for that detracts from your ability to do that and and creates one of a well it's just another house that'll have needs and and we don't we'd rather focus our attention on our house okay um now exibit A1 before the board and up here um next to me this is uh the subdivision plan that we submitted as part of this application um it depicts here highlighted in blue uh your home is at the front in blue um number 101 is in the rear in blue with the proposed dividing line in green is that that's it okay um so are you proposing any physical changes or development to the property or are you just seeking to to um no I don't want to do anything to either of them other than the regular things painting roofs Windows okay I I don't want to change any alter the structures okay so so no physical changes are proposed ju ju no no no just a lot line yeah yes um in establishing where that proposed lot line would be drawn did you take into account the way these two homes actually use and operate on the property yes that's that's all I it's considered that's why the driveway is the way it is and they have their yard yeah okay it's all the way if we live already so it won't disrupt anything okay um and so why is the lot line not not drawn to provide a you know wider lot width or Frontage um for the rear home is it well we wanted to keep the keep intact the front of our house there's a a large hedge row that we don't want disrupted and we didn't want to have to Envision another driveway cut out or anything that would disrupt the neighborhood at all I would just want my idea in this is that we would do this and no one in the neighborhood would have any idea anything even happened they they would um everything would function as as it always was so that's why that driveway was we did it that way okay and and if you look at the first page of um exhibit A2 the pictures that that depicts sort of the the the Shrubbery and the Landscaping in the overall context of the property right and that's the and that's the existing condition that were looking to maintain by drawing the lot line where you did that's right okay um now um the plan provides for shared use of that existing um driveway via an easement correct yes all right um is is that currently how the two properties or how these two homes have access to the property do do both homes share that same driveway yeah it's it's it'll operate the same way it ever has it's it's been a good situation that way in that sense okay so you know this this lot Line's not going to change at all the way either of the residents would OCC would would access or use the property in any way no it wouldn't change anything okay um and you're familiar with the fact that before you took over the property uh Mr McAdams S Sub Vision approval um in 2002 correct yes um are you propos is is the subdivision plan that you proposing different from the one that he sought approval for and was denied in 2002 there's some differences to the lines all right and and and well so just um exhibit A6 it's again it's not the best copy but it is a um photocopy of that 2002 plan is that is that right yeah I I didn't quite some of it I didn't understand and and I I gave the the back is going to be a little bit bigger than in his plan and our parking is a little bit we altered that part too yeah so if I'm comparing these two plans correctly the 2002 plan wasn't as generous with the overall lot area for the rear home didn't provide the same didn't provide the same width or depth for that I'm sorry depth for that property whereas yours it's uh other the rear property is deeper it's compliant with the R2 zoning standards yeah as far as overall lot size roughly their equal size Lots okay and it divide and as you mentioned a few moments ago it kind of divides these two properties in a way that's consistent with how they're actually used in practice right you would you think they were already divided like that if you were living there in fact I got I might as well tell you the story though I had a landscaper come and after he had cut the lawn he only cut right about where that line is I had him out front I said what do you he said did I get it about right I said no it's the whole thing we got the whole thing which uh so he he didn't he could didn't even dawn on him that these weren't already separate like and and a lot of people think that when they come to our house they they they say you own that when I tell yeah it's all in one yeah so anyway um so to to the extent this subdivision plan um presents some bulk variances are that relate to the existing location of the buildings you're not changing any of that correct it's all all the same buildings are proposed as exist now yes and um the subdivision plan does um require variance for the width of the lot because the driveway is narrow right right but that's but that's a but that driveway um it's already shared access between the two properties and it's not going to change the way these two homes function in practice right at all it's the same way these two homes have operated for the past uh 30 plus years yeah um all right so um we just mentioned that the 2002 subdivision plan was presented to the board it was denied at that time um you know would you agree with me that there have been some changed circumstances um as to the property and your ownership of it since that time well the biggest changes are that when they first built it they envisioned of it being an accessory dwelling unit with a family living there and that didn't that hasn't been the way it's functioned at all and the other thing that I had noticed in both of the decisions is how they referenced wanting to keep together an historic site and that's why we showed that it was after that they first made that decision and put this in the deed that we got the historic designation we didn't get it and and McAdams got it and it's a historic structure historic building it it specifically is not an historic site so by by doing the subdivision we're not breaking up an historic site at all we're in fact we think we really think this is going to benefit us in maintaining our the the historic building and then the other difference is that when um an and Greg came here in 2002 they had already moved out of the house and they wanted to sell the house we want the exact opposite we want to stay and they were just um at that time they they were making the argument that it was not marketable um and they were wanted to do the subdivision because it was going to be easier to sell that way but that's not that's not our our argument here in fact we thought it was marketable because eight months after that we bought it so um now um as you mentioned earlier you continue to maintain the historic home and you take seriously that obligation to do that right and so and as you think and and to to the extent you know that original approval um was concerned with maintaining the historic quality of the um home you know I think what I heard you say earlier was by not being able to subdivide that rear property off you know that increases your burden and detracts from your ability to focus on maintaining the the historic home is that right we''ve had to put money into the rear house that I would have much rather um not had to have done no um you have recently gone before the historic preservation committee to get their review and approval as to your proposed uh division plan correct yes you were before them in January yes and that's um the minutes of that uh meeting exhibit A7 in the board's packet but um did the did the HPC act favorably on your application before them yeah they they liked it so they they voted five to zero in favor and um the the one member liked that brick driveway and he wanted to be sure that that if that was ever to be he he was worried someone would want to Asphalt over that driveway so I agreed that we would make sure that since we'll have the easement there that we would go before them before anything that we would have a shared maintenance agreement with the back house and so that anything to be done to that driveway would have to go before HBC and get their opinion first so that was the only thing that arose otherwi otherwise they were all in favor of it and you'd be willing to to abide by that recommendation yeah in fact I I liked it I I I think that's a was a good recommendation okay um now in addition to some of those chain circumstances that we just went through you're also aware that there's certain planning considerations that Mr Miller is going to testify during uh during his part of's application correct and I mean I could go on now I think it's G to be it's beneficial to not just me to the town but yeah I think okay um am I correct in summarizing your intent with this application it's that you know you are looking to subdivide this property take it take it out of its current status of being a non-conforming use and subdivide it into two two conforming uses on their own tax Lots is that right that's right um and uh the home and the intent would be to convey that home to be owner occupied consistent with the housing goals of the buroughs master plan that's right we would that would eventually happen I don't know how soon I don't want to there is a tenant in there now and I don't I want her to stay as long as she can as long as she wants to but as soon as she wants to move on I don't want to look for another tenant I would rather sell to an owner o at that point or maybe she would want to buy it I don't know our previous tenant did want to buy it but she didn't realize that she can't buy it so this is what yeah all right um Keith well thank you very much those are all the questions I have for you I'm not sure the board has any for you at this point right back yeah all right uh Mr Miller um now you are familiar with this property and the applicant's plans for this property correct yes I am um you have reviewed the subdivision plan and are familiar with the uh uh our ordinance and master plan yes I am um based on all of that have you restud have you looked into the issue and and I reached any conclusions as to whether or not you think the relief that we're seeking is appropriate Justified yes I have all right could you speak to those uh opinions please yes uh first of all uh again this is a property located at 109 Sycamore Street and the second property has the address of 111 Sycamore Street uh you've already heard uh testimony describing uh both units one's an historic dwelling the other is a 1300 roughly square foot unit that was built back in 1984 and you've again gone through the floor plan for that so I won't won't go into that the area is U Zone R2 which is a single family uh detached residential district for the most part um the homes in this immediate area vary in size but uh I'd say the majority of them date from the early 20th century there's a lot of one story uh one and a half story homes that that date back to when the original development of the area occurred and the relief for seeking the evening is to expunge the condition which prohibits the subdivision of the lot uh basically the lot currently uh contains two dwelling units on one lot which is inconsistent with your code and a nonconforming uh condition uh there's actually two sections of the code which prohibit that condition section 450-1515 or building on one lot unless otherwise specifically permitted so it basically says you can't do what we're doing there unless there's something specific in the zone that would allow you to have more than one uh one dwelling on the property and then there's a second section uh section 450-2211 so there's not one but two instances in the zoning ordance that make this use a prohibited use in addition we're also seeking a bulk variance because uh although the lot's conforming in terms of its U area and for the most part the setbacks with the exception of one setback variance was granted back in 83 for the uh dwelling in the rear of the property your ordinance uh says that a flag lot has to have a minimum Frontage of 50 feet and we're proposing 12 feet for the the flag light lot that's proposed this evening so basically that's the parameters of the relief we're seeking uh the next thing I want to do is go through briefly what the uh uh variance in 1983 what that resolution uh stipulated for this property uh basically the board did find at that time that the lot could be divided into two conform lots and they one of the one of the provisions in that resolution it says that if it were not for the location of the existing historic residence so basically uh to make the lot of foring at that time there might have had to have been some kind of encroachment on the historic residence so uh that that was one of the findings that the board came to um the the resolution also said and I quote applicant prefers to maintain the entire lot without subdivision end of quote so it seems to have been something that the applicant was in favor of uh the applicant also sought to provide a dwelling for his in-laws which again you've heard testimony earlier this evening and uh one of the objectives or one of the goals that was discussed was uh to preserve the architectural and historic character of the existing dwelling and The Bard also said that they were quote worry about establishing any precedent establishing more than one residential unit on one lot so there was also concern on the part of the board at that time about having two dwelling units on a residential lot because that's traditionally not a practice that you generally allow in single family detached districts unless there's some sort of circumstance that would otherwise justify so basically when the board approved the variance to allow the two dwelling units on one lot there were three conditions attached to that relief two of those conditions dealt with this the sanitary sewer uh Provisions for the unit one was that uh they had to get approval for a septic system and then the second was that they were only allowed to have that septic system for limited time and then they'd have to tie into the public seore and then the other uh condition of the or uh resolution was quote a deed restriction approved by the board solicitor provided ing that no owner of this land will subdivide the premises end the quote so that's basically what we're here to discuss this evening that that provision and there was nothing in the resolution to explain why that provision was included and they didn't cite any zoning parameter or planning consideration that would have explained why or why not that that provision was included within the uh within the resolution so basically there's as there always is in New Jersey case law which explains if you in front of the board for a given uh relief what those criteria are for the granting of that relief and in this case uh where you're dealing with a condition of approval of Prior action of the board and seeking to uh change that condition there's a case called Al Rich V Schwarz which establishes the criteria that that that you're to follow as you as you request that Chang and interestingly alich V Schwarz dealt with a subdivision and and a a deed restriction and uh basically uh it has some similarities to the case before the board this evening it also referred to the assessa case which was was discussed a little earlier that'll be extend of the legal opinions I'm going to render this evening but just as background is as the uh the criteria for this this is the the case that establishes those criteria um there's three prongs to the argument that you have to to make to satisfy the board that the removal of the condition is Justified the first prong is that the original purpose of the condition remain intact and interested protects do they still exist so you have to answer that question secondly you have to show that will the amendment to the condition affect the criteria that support the variance and the third is does the relief continue to meet the positive and negative criteria so what I'm going to do is I'm going to go through the U the criteria and show that in my opinion we do meet the uh the standards that are established by that case and uh the first uh prong again is that the original purpose of the condition and any interest it was designed to protect no longer apply to the property um I think the first condition that's changed is that the owner currently no longer prefers to maintain the lot without the subdivision and then that's already again been put on the record Jim and that Point's important because as you noted earlier the 1983 resolution states that the property could at that time have been subdivided but it was the applicant's preference then to keep it all together so preference was really a driving factor of that original approval yes it was the second factor and again you've had testimony on this but that the household that benefit from the variance no longer occupies the property and the current owner has been in possession of the property since 2003 which was subsequent to the prior time that the uh uh condition was before the the board and I think that's significant because one of the obvious reasons that the board granted the relief it did in 83 was that they were accommoda a local household that had a familial situation uh and they were trying to accommodate them by allowing the the uh basically an extended household to occupy the second dwelling unit the current owner isn't in that situation and they don't need the second dwelling and it's also not you know going forward uh with this property questionable whether a future owner would also have that that condition it's it's not necessarily uh true that any future owner of the property would have a situation where they had an elderly in-law or parent that needed a that could be living on the property and also be at a stage in their life cycle where they could be comfortable in a two-story uh 13,000 square foot or 1300 square foot unit with two story stairs and and all the other aspects of this facility typically an accessory dwelling unit is an apartment it's on one floor and smaller and it's attached to the unit Etc so this is kind of a unique uh uh way to accommodate an in-law suite uh it's not typical the way that would ordinarily be done uh so as a result the original conditions uh you know with the older parents occupying the unit can't be rep replicated at present probably wouldn't be replicated by a future owner and um the only other interest that was identified in the resolution as a objective of the board at that time was the preservation of the historic home and that's been accomplished and would continue to be accomplished and would not be affected by uh removing that condition so basically the conditions that led to that imposition of the condition limiting the subdivision of the property no longer exist and the extent it protected any public interest that public interest would probably be limited the historic preservation of the house and that public interest will be continue to be upheld by the property owner and and the property itself the second uh prong has to do with removing the condition whether the removal of the condition will affect the criteria that support the the variance and again I believe that we can satisfy that that prong of the uh the case uh the resolution as we stated earlier didn't really contain any specific basis for the the Restriction Pro prohibiting the subdivision so it on its surface there's really no um objective that would that's on the record that really supports the condition to begin with so it's a little hard to even uh come up with with with a reason to to deny the application on that basis because there's nothing really in the resolution that says well we're putting this prohibition on subdivision on as a condition of the approval there there's just no basis for it that's articulated by the resolution um the historic dwelling is not going to be impacted if the if that's if a subdivision doesn't occur the subdivision itself won't result in any physical change to the property or any additional development or intensification of the respective uses and uh the property lines and the plan has been designed in such a way that the streetcape will be preserved the Landscaping that that uh creates the the existing streetcape will remain on the property towards the front of of the uh the lot that's toward the front of the property and they'll continue to be more than adequate separation between the Ellis house and the newly created lot so basically there's no physical impact as a result of removing the condition and allowing the subdivision and finally uh the relief continues to satisfy the the positive and negative criteria in 83 the board found that the property was particularly suited for the second dwelling and that the variances would not substantially affect the Zone plan or the zoning ordinance and that the relief met all the both the positive and negative criteria I believe that these U conclusions still remain valid today the second dwelling was was constructed in 84 in in accordance with the U um approval that was in an 83 uh the proposed subdivision is not going to alter the suitability of the location for the two residential uses again there's no physical changes contemplated for the property each home will remain a single family detached dwelling and otherwise consistent with the use controls of the district the access parking and other improvements will remain unchanged the parking is compliant with rsis there's more than sufficient parking to support uh to residential dwelling units under rsis and I think most importantly the character scale and intensity of the uses will not change they will remain the same so basically the subdivision is not going to alter the suitability of the law and it's going to continue to satisfy the positive and negative criteria I also think that um as part of the criteria we have to be specific about the negative criteria IA and there's two prongs as the board knows to that and one is that there's no substantial detriment to the public welfare and also that there will be no substantial impairment in the tenor purpose of the Zone plan and zoning ordinance terms of the public welfare prong uh the impact on the neighborhood is going to be identical to what it is now uh there's not going to be any change in the character the intensity of the use there's no physical changes to the lot and uh because of that there's no because there's no change in in the in the lot or it's or its character I don't see that there's any change in its impact on the uh on the surrounding neighborhood and certainly no substantial impact on the neighborhood and there's an extension of that on the public welfare also the relief will not impair the intented purpose of the Zone plan and I believe uh based on my reading of the ordinance that the expunging of the condition will actually Advance The Zone plan and zoning ordinance and the reason I conclude that is that again the code has two different sections which state there shall not be more than one single family detached dwelling on a single lot the current use is nonconforming from a zoning perspective creating one lot for each of the two units will actually make the property conforming to the code and remove the non-conforming use condition that that's that's currently on the lot now there will be the need for a bulk variance but the deviation from the bulk standard is a lot less of a of a deviation from your code than the current condition which is basically the the the existence of of not two non basically nonconforming use in the form of the two dwelling units on one lot also um I believe that this ordinance or this res this action would Advance the policies of that October 2006 master plan reexamination which quote has a goal which says encourages that it would encourage owner occupancy of all single family homes end of quote limiting the number of dwelling NS in one lot is obviously going to advance that purpose because currently you can only have an owner in one of the two units the other unit has to be a rental unit there's no other way to occupy it and uh basically compels the owner to have a Le one rental unit on the property that creates a burden on the landowner in that he has to maintain two homes and OCC one of one of which is occupied by another household and uh it also burden had entails the burdens of the trans nature of of renters you know you have to periodically get another rener in there uh the rener doesn't have any equity in the home or the or the or or the burrow and they may not maintain a home to the same level that a owner of the property would and those problems can all be amiliar by removing the condition in which uh prohibits the subdivision allowing the subdivision to take place and allowing that second unit to eventually evolve into an owner occupied unit which is again more consistent with the policies inherent in your in your master plan and Jim on that that policy consideration the encouraging single or owner occupancy of single family homes that is a new planning goal that was articulated in 2006 it's a change circumstance in the Burrow's planning that arose after that 2002 subdivision denial I would you agree with that yes I would uh that that policy was articulated put on the book subsequent to the the uh the a prior so that that again is another circumstance which has changed since the original uh variance was granted and also since the 2002 uh hearing as well so basically um to sum up uh I believe that the uh the the uh removing that condition is consistent with the case law and I think it's consistent with good planning I think it's consistent with the positive negative criteria in the overall policies of the bureau and would Merit the uh the approval of the board uh the other thing I would want to go through real quickly before I I conclude here is that uh we do need to put the proofs on for the C2 variants that would permit the 12- foot driveway uh basically um with the C2 variance we have to show that the relief would satisfy the p uh would satisfy purposes the municipal land use Salon represent a better zoning alternative where the benefits would outweigh the detriments um and again the applicant is seeking relief from the uh requirement that uh flag lot have 50 feet of Frontage he's requesting 12 uh I believe that in addition to the that or rather that that action would advance two purposes or three purposes Municipal land use law a to encourage Municipal action to guide the appropriate use or development of all lands in the state and the matter will promote the public health safety morals and general welfare because I think a general advances the purposes of Municipal land use law and is an appropriate use of land uh purpose I to provide a desirable visual environment through creative development techniques good Civic design and arrangement I cite that purpose because the subdivision itself maintains the existing streetcape in every aspect uh the frontage is going to continue to be attached to the storic unit which allows that all the conditions which are attended to that historic unit to be maintained by the homeowner of that unit uh so uh it it advances the preser ation goals that are cited both by the uh the plan and also by the HPC when they looked at the application as well and then finally am to encourage coordination of the various public and private procedures and activities shaping Land Development with a view of Lessing the cost of such development more efficient use of the land I also believe that subdividing this property ultimately is a more efficient way of maintaining the property than would be under it its Uh current uh condition is two dwelling units on on one property uh the benefits of the relief are basically the conversion of non-conforming use into two conforming uses the preservation of the streetcape uh basically the house will continue to be consistent and the Ellis house owner will control the impact of the uh use on uh the frontage of along Sycamore and it'll also allow the maintain maintenance of the hedges and the grading which are currently present so again there won't be any change to the street scape and also just the overall ability of an individual household to own and maintain the unit which is currently 10 uh 1011 Sycamore and again that I believe is a more efficient and better way to maintain these two properties uh in terms of any potential detriment there's no change in the character intensity of the uses involved and no potential detriment from the subdivision the area resulting last will be consistent with the zoning and both homes will have adequate parking and other uh utilities and Facilities to maintain them uh as ongoing single family detached units uh so basically the uh the character and impact of the property are not going to change and I believe that the U relief for the driveway and and the flag lot Frontage or B B will satisfy both the positive and negative criteria uh for not only the reasons I cited under the C2 criteria but also the re I cited under my testimony regarding the uh condition in the resolution and so uh to sum up I think that that relief also meets both the positive and negative criteria and would Merk the board's [Music] approval3 yeah that that that's definitely what it says yes and it's even after this second building was built on the same space still recogniz this yes even subsequent to when the second House was built seems to of course the folks in 1983 did not have understand this Happ their concern was not warranted in a way because building was the second building was built think about it Ellis property was extensive sorry was extensive and the grid the hen Height's grid was overlaid over top of this stuck the grid over the house so the site wasn't even historic and the people who got it right Federal people got it right it's not a historic site your point as as that I would also say welled having a [Music] and sotic that answer my question as you said M times doesn't it's not being used asted we are there any [Music] other EXC there any yes yes I am not aware of the de restrictions but I I believe they're uh at least from personal knowledge of the ones I know uh that they're struggling with the same uh same characteristics of originally uh built for immediate family members times change family members about pass on and they're going to rentals and instead of what was originally intended was an accessory uh dwelling for ative yeah just odd that 1903 resolution doesn't the reason it's almost when I read it it's almost because concern and concerned one right which is a point that I think at that latter point is really worth considering because by imposing that condition what the board did at that time was essentially forc this to be a us expance in perpetuity which is a really odd scenario to be in and we're seeking to make this conforming that data restriction is preventing us from doing that and we and so we think particularly here where you've heard testimony that the layout you know this two-story nature of that Carriage House it's not really appropriate for elderly relatives to reside in it doesn't fit that type of use I mean it's a it's a bad scenario for a homeowner to be and it leads to the type of potential vacancy or other issues that that the mayor mentioned you know that there's another Advantage too I think maybe the board put this restriction on there in 83 because they were concerned that that if they didn't someone might come in and as of right put a line down the center of that property which would of course be the end of the historic dwelling what this subdivision actually does is it prevents that because now you're going to have two separate Lots the line will be established on a permanent basis and I think it's actually a step towards achieving the original goal which is to ensure that that house is maintained as an historic structure with adequate open space arounded in appropriate setbacks yeah I don't believe so because you're going to recognize if they're successful this evening you're to recognize the uh the width of the what's going to be called a flagline so they would have to operate under all other provisions of the ordinance in terms of they want addition it's front yard side yard rear yard it's really a lot with theying correct and actually actually one thing I just want to bring up to Mr Mill Mr M I understand that the minimum lot we is 60t in the zone you mentioned several times 50 ft all your teston still Valu for is 65 it it is but what it it's there's a definition in the definition section of the ordinance which defines a flag lot as having the 50 Foot that's where that 50 foot came from in my testimony but the minimum width for lot in this R2 district is 60 feet I meant to put that on the record and I overlooked it when I testified but that's the relief risk for the even yes so getting back to the mayor's question I do not see any practical difficulty if they're successful here uh confirms it conforms in terms of lot size which is very important coverage and all the other uh bulk standard requirements the only relief is the lot width and the lot width is really for the area of the drive way going back to the main uh the main portion of the law well again I I caution this board this is this is on its own Merit of this this application uh very quickly so we can keep me things moving forward May uh Mr chairman U our February 9th 202 for a letter we we've heard everything that's contained here as part of the testimony um would like to note that there's several existing nonconforming conditions if they're successful this evening should be uh included in the resolution as being recognized exactly and that that way also that goes to the mayor's comment that would also protect that front uh existing historic structure in terms of its existing non-conformance uh and the applicant has already indicated that they will comply with all our uh review comments that's contained within our February 9th review and most specific of which is the appropriate access easement uh being Incorporated uh with appropriate legals uh and showing very much U uh where the access easement who gets to use it and also who is going to maintain it and we can have those covenants uh to to form acceptable for the board selic yeah uh we'd be happy to provide copies of the proposed easement documents um to to miss Hyatt's office and to to your office as well Mr Bach absolutely can I add just one more thing uh it's we wrot he tesy uh from from The Advocate that all the utilities are separate if somehow there could be some verification either by your survey or someone that utilities will either be completely within each lot or an appropriate easement um I don't know where the sory is I don't know where the water is I just want to make sure to protect any future property owner someone comes to say you to your put on my property but if you incorporate that as as it's a great Point yes absolutely to the extent of the utility lines aren consistent with how the lot lines are drawn we would we provide could be going through the could through the can we confirm that the the utilities are from both units are going directly out to the street and one's not going through from The Carriage House through the the existing house right okay but right at the the current ex I'm saying the existing condition is that is that how it is okay [Music] okay [Music] do you mean the 2002 plan no sorry the plan sorry the so there was no subdivision plan in two 198 yes that was 2002 yes yes um essentially um the and that plan it's exhibit I think it's a six but if you look at that plan this rear lot L this lot line between the two properties it's drawn further back it provides a smaller lot area for the rear home and subers testified that this line as it's drawn here is more consistent of the way the use of the property is actually split so the 2002 plan made the front property larger the rear property smaller and was inconsistent of how it's used in practice and I believe the line here as in the parking area might have been slightly uh realigned as well but but I overl I overlay both PL okay 10 difference in less in dep uh I'm Jim Rosler I live at Kings run and I lived at 1013 sore Street next to [Music] meams yes no yes when I live currently in kings run but prior prior to I lived at 1013 so we had joining driveways with 10:9 with 10109 and 1011 so at this time uh a little bit of background and M Mrs mcadam's parents were living in Cherry Hill and they were her mother was they both well but they were living so Greg Mr McAdams wanted to build wanted them to live with them so they had the property back there so they agreed to McAdams built the carrage house what we call the carrage house and uh so of course he had to get approval and but he got a separate address because it was 1011 it wasn't 10:09 was 101 uh and he was insistent he would have I wouldn't say Greg would never do anything illegal trust me but he agreed to the deed restriction and he would have done anything to get the house built and that his in-laws could move in there so you had some emotion uh in doing this and him doing this in 200 beginning of 2002 or whatever when they Greg was retiring they got to 10:06 Park Avenue they built that and he went to sell his house and couldn't for a long time and that's why he went for the second uh restriction for the separation uh they couldn't sell the house and along comes a niece who says yes I will buy it which is the boress so uh unfortunately Mrs McAdams died eight weeks ago other else otherwise she would be here uh and I think she would agree with the separation um and as I said I've known them from when they moved in in 79 I've been friends with them and uh Ann and I did a lot of talking is she loves the house but she knows and the reason they went from 109 to 10 10:06 uh Greg was retiring they just got tired putting trying to upkeep it so uh I think that Ann and Greg would agree that this property should be all they do they agree that one would be subdivided it has its own ZIP code it has its own address 1011 so I was 1013 car 10 11 and that's 10:9 so yeah uh but to to sell for for Beth and Keith to sell that house they what the meams went through was heartbreaking um but the reason they did it was they they wanted to build that house for his inlaws to take care of and that's okay yeah just just very briefly obviously uh it's been a long long presentation a lot of testimony a lot of legal issues discussed um but just to summarize it briefly um the questions before the board are there changed circumstances now from when the application was last heard in 2002 we think the answer is obvious that they are um a new owner with a new family situation time has proven that the rear property is not appropriate as an accessory dwelling unit and really cannot feasibly be used that way in the future um the pardon me the there is a new subdivision plan being proposed here tonight and what was proposed 22 years ago and also um critically the Burrow's planning considerations as articulated in a 2006 master plan reexamination have since that time further emphasized single family home ownership of which is consistent with our intent here tonight um for purposes of agreeing to or consenting to our lifting of the deed restriction obviously there are legal issues to still be sorted out um on the legal side but for the board's consideration is there a useful per does that deed restriction till still retain a useful purpose uh I think the answer is clearly no um it it is at this point preventing this property from coming into Conformity as to the Burrow's use standard um it forces this property to either be rented uh in a manner inconsistent of the B barrows master plan goals or fall vacant as the mayor EMP as the uh as the mayor mentioned which is obviously not a desirable situation so does that data restriction at this point uh retain any continued usefulness or Vitality I think the board should find it does not and that the board should consent to that de restriction being lifted and the prior condition of approval uh being vacated anything to continue to PR very well are issues although that case did stand for the proposition that the Restriction put in place had to to qualify language of public um I also found that said that that was not necessarily definitive and that the board really should interpret thetion the conditioni approval so we have kind of like saying two different things here so I think that the solution we came to tonight those make sense that we can kind of work this out um and I think it makes sense to the to put their put findings on all the record in terms of the change circumstances I also wanted to give some guidance to the board that there is treat that says change circumstances can be as limited as one priation and then second the the same application with a set that's higher even though not that can be CH I do want to tell the bo that change circumstances can be um a lower burden and you know the app demonstrated plan from year thank you um that the plans are rather the intent the applicant then versus now there's you know the case La that I read really said that the intent of the applicant doesn't necessarily go towards their change circumstances but the sub plans are different um so [Music] just thank you um so M I guess I would just ask um as far as procedurally here so if the board were inclined to Grant the application I guess what our request would be that the board vote on the issue of um a um lifting the condition of the 1983 approval consenting to the deed restriction being removed not necessarily vacating that in in and of itself because that may require more legal back and forth but just consenting or or putting an opinion on the record as to that issue and then in term um and then as a third Point um voting on the subdivision with the variance relief so I think that that that would be the three parts that we would understand to be the relief that we are seeking and would be appropriate with I think the case law as as as we've uh discussed here tonight there's all there's also it's I mean it's very closely related but there's also other removal of the 1983 condition of the of the resolution it's tied very closely uh yeah condition and de restriction it's the same point but it's two separate Avenues where it's of and we got the easement the parking and utility the uh the driveway each one was in the letter just not specific demonstration utilities are either separate Lots or yes yes and we agree and we would agree to that a relief as articulated yes I'll second [Music] it sure miss bonana Cory Mr du cus yes chairman Hansen yes mayor Hal yes councilwoman heren Mr famar yes Mr Schmidt yes Mr shriber yes and Miss McCall thank you very much everybody [Laughter] oh this is nor Scott this is normal every day it's like [Music] next I have here for a can't waste that one th I thought you oh okay that's okay see next week [Music] probably I know so that it's on record so that when they bring it up [Music] number visits and OT so you read and I think in them all to have this number but unint too many these days are just so I don't think it's funny to have a historic house it seems like it yes [Music] get what's early no I don't get no the last I I grab everybody leaves out the door I grab Ford to get everything done okay start y case 24-3 d1p Casey and Daniel hu 1728 Sycamore Street Lock 94 lot three bulk for bulk variant for an addition did you have your breakfast yet I didn't know we were next all right you're next come on up we'll have we'll have the solicitors SAR you in um do you all you want to State your names for the record Casey Hughes Danny Hughes Sloan Springer do you swear or affirm that the testimony you're about to provide is the truth the whole truth and nothing but the truth yes yes and what was your name I'm sorry Sloan Springer SL Springer okay tell us about your uh project oh yeah so um we currently you don't have uh we currently live on 1728 Sycamore it is a uh one-story ranch home two-bedroom on back um so we're seeking I think variances for setback for an addition um and also lot coverage yes so I'm I'm the architect okay well yeah I I Met You in Riverton you appear before the board for 62 612 Thomas I just got the plan yesterday that's another one here we go so we do do we accept him uh Sloan appeared before one my planning boards I found him to be very knowledgeable in the field of architecture he's a licensed architect in the state of New Jersey I think I think we should recognize him as an expert great thank tell my wife that um yeah so essentially what we're what we're hoping to do is to add a second story to the house so they can have um just gain some more living space reconfigure and get it um more room more room to grow um the existing house is built you know obviously bu the lot is slightly I forget if it's exactly undersized or not but the the setback is about the the existing house is built 2 feet over the over the setback and so in order for us to add the second floor uh from a structural perspective you know if we were to stay within the setback it would it would add a pretty significant um cost and and it would be a mess honestly um but as far as the the general public is concerned it would also look stupid um and and it would it we we tried to figure it out to make that work it just did not there was no way to do it in a way that that made sense to summarize you're just continuing the existing non-conformity correct yes we're not we're not uh not expanding upon it or anything no okay and it is about it's about two feet just the addition is 183 square feet it looks like is that correct yes looks pretty straightforward does any board have any questions for uh M for Sloan or the applicants so again exactly as you indicated Second Story extension of the existing nonconformity of the side yard and the sidey agregate they are putting a first story addition well they are adding additional footprint but none of that additional work is triggering any additional uh bul Varian is outside of the normal uh ordinance requirements and the proposed disturbance is less than 500 s feet so no uh grading plan will be required under the bur ordinance the only condition I would suggest is any of the down spouts be directed away from adjacent properties and that's all I you'll keep the down spouts directed within your own yard y yep any questions for Mr BFF open the hearing up to the public anybody want to speak on this matter please come forward we'll have the solicitor SAR you in seeing nobody will'll close it to public uh go ahead Elena so the uh to um obtain a bulky variance the applicant needs to demonstrate um both the positive and negative criteria for a C1 um variance they need to demonstrate that the strict application of the zoning regulation to the property creates a hardship or results in exceptional practical diffic difficulties um for a C2 variant um special reasons the applicant would have to show that the proposed variance advances the purposes of Municipal land use law um it sounds to me like because of the existing um non because of the way that the property is already laid out um the applicant would uh suffer a hardship and that they're not exacerbating um anything that is already [Music] existing um so sound to me like a C1 variance would be appropriate in this instance anybody like to make a motion to approve or deny the application this time um I move to approve the application based on the C1 criteria that there's hard to the property this would be those side yard setback um and aggregate side yard setback we have a second any discussion on the motion roll call vote Suzanne Miss bonac Cory yes Mr duus yes chairman Hansen yes mayor H yes councilman heren yes Mr famular yes Mr Schmidt yes Mr Shriver yes and Miss McCall yes abstain okay motion passes your applications approved thanks for being patient while we went through those first two cases I'll just make a quick disclaimer this is going to apply to to the next case as well should that be approved is that we'll do a resolution in our next meeting third Thursday in uh April I guess is next month do a resolution memorializing what was what was approved tonight and once that's published in the paper anybody that wanted to appeal the decision could do that within 45 days of the publication of the decision the newspaper seeing that nobody came out tonight that's highly unlikely I would say but if you were to proceed with your project before that 45 day day period is lapsed you'd be proceeding at your own risk that you might have to if it was appealed and they return then you might have to remove whatever was built in that time okay okay yep thank you thank you so much good luck yeah absolutely so we're going to do Crescendo is next then next case is okay we'll announce the case all right next case is case number 24-3 d3p Crescendo Ventures LLC 121 7th AV block 28 Lot 21 this is a uh Triplex certification so our councilwoman Heron and the mayor can't sit on this as a zoning matter so we'll have a uh seven member board with our alternates I guess correct who who will be the voting alternate so we have myself Michael we still have oh we have seven okay I was counting Elena I'm sorry I'm like we have eight seven Elena doesn't vote good evening good evening thank you for being patient with us while we worked through a couple complicated cases I'm sure you did so did I um my name is Robert gleener I'm an attorney and I'm in the unusual situation of being the applicant here tonight also uh Crescendo Ventures is an LLC that I am a um a part owner of uh one of the other owners Dave gorm is here with me tonight although I don't anticipate we'll need any testimony from him so we're two of the five members of the LLC you don't see any reason to have him sworn in then Rob um I don't anticipate his his testimony because I did all the leg work and I don't know if you have to swear me and I am an attorney at law but I will be giving testimony I'll defer to miss on let's swear you in just for the fun of it um do you swear or affirm that the testimony you're about to provide is the truth the whole truth and nothing but the truth I do thank you thank you as I said um I've filed the application for my LLC and basically we have um this property that we always believed and still believe is a Triplex at 121 7th Avenue um and um we were unaware that there was any issue with it until we got a notice from uh one of the uh burrow officials that we needed to get a certification so that's why we're here um I began to do the research and the initial research I did I could with Oprah requests and that sort of thing only went back to the uh mid to late 90s and everything I had and it's all in the application I have the exhibits there indicate um that it was always viewed as a Triplex I was happy uh to find out when I went to the Haden Heights library and I got the assessment card and saw a beautiful picture of the house from 1959 that also showed that it was a Triplex back then so although I have a gap in time between 1959 and the mid90s I because there's just nothing around um there was no phone book indication I I went through all that um I just couldn't uh I couldn't meet that Gap but I did find out as I said 1959 showed it was a Triplex and then everything was picked up from the late 90s um I even had the MLS listings and I tried to contact uh prior owners the only owner that I was able to contact found happened to be another attorney by the name of Mark Cherry but he owned it in the 2000s so I couldn't uh I couldn't get back and I really tried as much as I could to close that Gap I think the bottom line here is is I think I've established that it was well before your changing the ordinance uh that it was a Triplex it's always been used as Triplex uh the burough has recognized it as a Triplex and um I think we've established um uh clear that this has been a Triplex well before the ordinance and should be certified as such how how long or how long has uh LLC owned it Rob we bought it in I want to say [Music] 200 how long does the prior owner have it before then just he had it he had it oh how long he had it let me see how long did he have it before you it was owned um we actually was uh 2019 we bought it October 11th 2019 First Colonial took it by a foreclosure we ended up buying it from First Colonial they bought it as part of a larger um uh package of of properties from the prior owner that was uh Main Street home buyers LLC you don't know how long they had it I guess well according to they had it they settled it on it from in 2014 and I know this was a change in name of their company so it looks like they bought it in 2014 and they had it till 2019 when First Colonial took it back and I I it wasn't a foreclosure actually it was a deeden Le foreclosure is is how they got it and then as I said I did talk with Mark Char he earned it in 2001 but I already had proofs from then he was willing to come in and testify but I already had the proofs that said that it was a tri looked at as a Triplex back then so I didn't want to bother him on that okay so we have all the we have all the information you were able to uh every bit of information that I could track down between the MLS uh and the op requests and the Haden Heights Library you check with the I was going to ask you check with the library to see if they had any phone records or anything I asked about the phone books and the nice woman there guided me through just wasn't there wasn't I even checked voting records and I only had some recent ones you've exhausted all the resources that you you could think of to try to establish that period between 59 or well 72 and the mid90s I guess unfortunately you know people are starting to die out you can't it's we see a lot of cases where the The Neighbor comes in it's you know elderly and infirm and tough to even get I had an application before this very board about I want to say about eight years ago and I had the postman come in who testified that he had he was a child when he played on the in the uh property when the when the father was converting it into a duplex and he delivered mail to there and he was able to testify that there was two but how often are you gonna get that kind of testimony too yeah it's just not gonna happen so that's my presentation but there there's nothing with the property that would indicate to you that was it was ever converted back to a single family dwell we we've bought it we've actually we actually started upgrading it it's as far as we can see there was nothing that indicate that there was any conversion whatsoever and it really looked remarkably similar to the information that we had from the 1959 records so that was it build from a utility uh standpoint all separated they're all separated yeah it's all separated on seven on that on that block especially of seven so yeah I KN knew somebody friend owned one of them not this one I don't know if they still do does anybody else have any questions for Mr gleener um I'll open the seeing none I'll open the uh hearing up to the public for any anybody who wishes to speak on this application come forward we have the solicitor swear you in seeing none we'll close it to the public you got any you don't have anything else obviously Rob so and I think we're pretty familiar with these types of cases but we'll let Elena yeah for the benefit of the new the criteria the new members um so in 1973 the BAU adopted ordinance that prohibited duplexes and permitted only single family um dwellings and um pursuant of 4055 D68 Municipal land use law non-conforming uses may be continued upon the lot dur in the structure so occupied any such structure may be restored or repaired in the event of partial destruction thereof but the um applicant coming before us must prove that the non-conforming use must have been continued throughout the time period prior to when the ordinance was passed and there has to be no intention to abandon um so that would that would mean that if there were conversions to the property to make the the unit separate then there was an intent to abandon there um it sounds like in this case there was no intent to abandon the property looks the same as the I guess Library record from there's a picture in the application of of the actual property from there assessment record yeah 1959 assessment cards yeah so 1959 I mean that's seems pretty indicative that the property has kind of maintained its structure this whole time um so that that is the criteria that the applicant must demonstrate when um coming before the board for this like duplex or um Triplex certification think T in a lot of cases people are able to get a lot more information to fill in the gaps but it appears to me that Mr Greener did everything he could to try to establish that period and did exist as a triplex in 1959 again in the 90s so I I find it hard to believe that it was converted to a that the use was abandoned and converted to a single family and then converted back without anybody in the Construction office finding out about it yeah and the applicant doesn't necessarily need to trace it back every single year um it's nice and we have had it before and it's been very impressive um but sometimes the documentation isn't there so think he's gone through all the appropriate avenues that we would suggest to to try to we've had we've adjourned cases to try to get more information that's why I asked about the library search and all that because we've had a couple cases come back where they were able to pollster their case a little better when they went and look for further information but I I don't know if there's any other avenues that they'd be able to go down to further establish it I don't know how everybody else feels so anybody want to make a motion I make to anybody like to second the motion I'll second have any discussion on the motion seeing none we'll entertain a roll call votes then miss Bon Cory yes chairman Hansen yes Mr dulus Mr famar yes Mr Schmidt yes Mr Shri shriber yes Miss MCO thank you passes thanks for coming in Rob have a good evening enjoyed to see uh Mr gleer actually had to be sworn in a very rare courage you see an attorney actually had to be sworn in I think that's only the second time I've ever seen that we got him now we've got him now thanks for being patient no problem all right um we'll have the mayor and councilwoman Heron come back uh the next case on our agenda is bear with me case number 24-3 d2p Sean Carney 612 West High Street block 50 lot six this is a bulk variance another bulk variance case for an addition to a single family dwelling sit stand Mr Carney welcome thank you for being patient we'll have the solicitor swear you in sir can you raise your right hand um do you swear or affirm that the testimony you're about to provide is the truth the whole truth and nothing but the truth yes yes all right why don't you to tell us about your case for your project I'm sorry we just had um um our third baby I live in my wife's um grandparents and we bought that about seven years ago um love the home love the area done a ton to the house um just flat out want to stay here what we're looking to do is build a master bedroom bath above the existing back room Edition that they built in the 80s um possibly ideally a very small like mudroom area in the back the back door area um pretty much make it our forever home as far as like maintaining the home Andor advancing it further it would be new roof new HVAC um updating it so we would ultimately be there for the next few decades preferably so with the kids being little that's where we are so this another one where we're basic you're not expanding the footprint you're uh building up the only expansion on the footprint would be the the deck uh yeah the mudroom but I don't know if that's perceived as we have a back platform it would be the exact same size of that platform it's internal no it's internal that's not that's not exacerbating the side yard set back the second floor Edition is what we're looking at absolutely uh refer going to our March 14 2024 review uh what we have is existing uh uh single story uh side guard uh non-conformance and side aggregate non-conformance the applicant is proposing to uh exagerate that non-conformance only by the means of a second story no closure to the property lines uh they currently exist the applicant does indicate and I just want to uh there are several existing non-conformities which the board should take note of and the solicitor could make record in the resolution to protect the applicant on those existing nonperformance one thing I just wanted to note that the uh applicant has indicated um an existing uh lot coverage of 42.3% and the applicant is requesting to reduce the lot coverage uh my suggestion to the applicant is to stay with the existing 4 2.35% uh because there's going to be steps there's going to be a little bit of sidewalk tying everything in I have no objection if it keeps it exactly the same existing uh impervious and proposed impervious at the 42.3 five that'll gives some flexibility when they're going through and doing this work we still want to direct the down spouts towards the interior of the yard just like the last case we don't need a dryw well or anything though since they're not increasing uh and actually the actual disturbance because it is being built on uh existing uh single story and other Provisions is under 500 square ft no grading plan would be required by ordinance and in our comment on two on page 404 direct all down spouts away from Jason side you're amenable to all that Mr Carney sure okay question how were you going to reduce it by removing he's removing the pavers there's a p patio if you look at the uh this right here on the side here y right what that paper I was I didn't know how all this works if it like helped my case to to improve impervious coverage that way but I hear you if it if you leave it then you're back [Music] to% yeah so if you're getting it to 42% you could probably just leave it right I could leave so yeah work with your professional but if you stay within your existing 42% I think the board would 4 2.35% the board would be willing recog recognize that as an existing non-conformity even though the configuration I think I would ask the solicor to note that the configuration of that 40 uh 2.35% may change slight it's not going to be anything substantial though it might just be a little bit more where the mud where that mud room Edition covers it some flexibility we say 43% or something just to cover him well I was say just say work office there's there's no need there's no need to work with our office so there's no uh of course I would love to work with you but there's no grading plan required so I wouldn't even want to put the onus on the uh on the applicant to do that so as long as long as the end of the day they they uh stay within the 42.3 five% in a general configuration of currently what's out there I think that' be uh good protection for the applicant it gives that flexibility it's very successful project Mr K how does your your property drain now ISU no there's not there's two drain spouts in the back yard and then there's one that comes off the front yard that goes down into our driveway which has a slope to it and goes right out you're a seventh and high that's pretty slope ground there right yeah it's a good slope down there yeah it's on sort on a hill there your your house really is in the middle of the slope so middle of the house uh to the street slopes to the street and the rest of it slopes to the back yep kids can go SL back up to the service operations yard there or is it that far up I don't believe so you're right around the corner I'm sorry was that try were you near the service op where I work or are you close to the community back up to that pictures here could we back up to the community center right there oh you're on the same side as the school yeah so that open yard in the community center if you were to just look over top of the fence line that's our backyard okay for y okay anybody else have any questions for the applicant or for Steve uh seeing n we'll open the application to the public uh is there anybody in the public that would like to speak on this application this evening seeing none we'll bring it back to the board Elena another both variance case yep so um in order to demonstrate that the both um C variance would be warranted for C1 the applicant must demonstrate the strict application of the zoning regulation to the property create a hardship a result in exceptional practical diff difficulty because of the some of the shapes of the property for a C2 they must satisfy the purposes of zoning um just similar to the last one it sounds like this property has a lot of existing non-conforming conditions um it seems like they would suffer a hardship um and also the reason they're coming before the board is like I said because of those existing non-conforming conditions um the applicant agreed to direct down spouts away um it also was agreed upon that the existing lot cover coverage uh would remain just to give them some flexibility um I didn't hear anything about the whether you've spoken to any of your neighbors about this or if you feel that this um addition will uh continue the character of the neighborhood anything to that effect if you don't mind very much so continue the character of the neighborhood and our home specifically we've spoke to all our neighbors all our immediate neighbors I sent out the certified mail but um as far as our immediate neighbors across the street next to us they're all they're all have no problems with it but to be honest the only neighbor that would actually even see what would what would happen is our neighbor to our right which I think would be 614 West time um and they've been there for for 30 years they knew my wife's grandparents they have no problems with any of it okay and you and would you say that the additions that you're proposing will um I know you said it would continue the character of your individual home but we also say that those um those the the items that you're proposing especially the Aesthetics would meet the um the conditions of the like keep the conditions and character of the neighborhood as well yes very much so yeah anybody uh like to make a motion I make a motion to approve the application for sidey setb at 7 and other anybody like the second again based on the fact that it's siiz any discussion on the motion Suzanne roll call please sure miss Bon Cory yes Mr D yes chairman Hansen yes mayor H yes councilman Haren yes Mr famular yes Mr Schmidt yes Mr schriber and Miss Mcall congratulations thank you very much guys you want to give a disclaimer give disclaimer i' like to see Sor yeah just a second I tried to get you out oh the disclaimer did you hear the disclaimer of the other case about how we'll do a resolution next month and then the the notice of that decision will be published in the career or the I think it's a career post right it's retrospect retrospect and then technically somebody could appeal within 45 days saying as how nobody was here to object to your position tonight the likelihood of that is unlikely but you can proceed with a project at your own risk until the uh 45 day appeal periods elapsed oh God okay perfect thank you guys very much thank you thanks for being patient with us tonight we had a few applications was that said we had a few applic thank you for being patient while we got through those other applications okay we we are down to another duplex certification so councilwoman heren and mayor H can excuse themselves unless you really want to come back for ajour you can go home I know you really want to come back and see us all but [Music] okay case number 24- 3-4 P Michael M cardi 278th Avenue lock 40 Lot 23 and a duplex certification we'll have our uh I'm sure you've familiar with the process at this point we'll have our solicitor swear you in all right you raise your right hand you swear or affirm that the testimony you're about to provide is the truth the whole truth and nothing but the truth I do thank you you want to tell us a little bit about while you're here sure uh I'm here seeking uh duplex certification uh for 278 AV I bought the property in 2003 uh moved into it myself on the second floor um part of the appeal of the property that was that it was built as a duplex it seemed to me it was built as a duplex um I'm selling it now uh or I'd like to sell it now and need the certification uh as part of the sale I see that you provided a pretty lengthy I'll call it an affidavit one from Barbara trout who lived at 258th Avenue from 1961 to the present day and then another one from Diane Hastings that lives at 29 eth Avenue from 1981 to the present they listed all the various people that lived at 27 and 27 and a half over the years and it's uh it's pretty expensive as far as being from dates back as far as 1954 to present day and it fills a lot of the gaps in between there but go ahead I just want to put that on the record sure it's noteworthy that Diane Hastings owned the property I bought the property from her and her husband so she also owned the property her and she moved next door whatever her yeah she had her her mother lived in one of the units and they rented out one of the others continued to rent it after her mother moved on to an assisted living home and uh used it as a or owned it and used it as a duplex until selling it to me uh in 2003 um I also a lot like the triplex case uh you know I I explored a lot of different Avenues to try to find records uh the the zoning office itself um the burrow uh we checked at the library I had a professional researcher look into it for me who's also a librarian to try to find uh rental ads in the newspaper and things like that came up short there um but the Haden Heights Library was very useful uh Chris Walter there at the Heights Library was able to get me the assessment card which the property record cards from 1958 here I see right 19 yeah 1954 I think I see the date on the other one read and and that shows the the property was built in 1954 1972 yeah the property was built in 1954 okay uh the photo is from 1954 and it uh the photo shows the the building to be the same with the two entrances one for each unit and it also lists uh two residents for or up and down it lists two different units in the building um Harry nner up and George nner down I believe they were two brothers that lived uh in each unit and you haven't changed anything since you've owned it and you said 2003 you've owned it since 2003 correct uh and it does have separate utilities uh separate separate heater separate water heater separate electric SE SE separate gas it has one water and sewer bill um but separate gas separate electric the water and sewer is common maybe it was just built that way you said I mean seems like it was a duplex since it was built almost if it was built in 54 and we have a property record card from 58 here they' probably just build it that way rather than have two services at that but I think it's a I think you've done a pretty good job of giving us a thorough amount of information on how it documenting that the uh it's been used as a duplex pretty much continuously since before the zoning ordinance prohibited such a use in 1972 but uh does anybody want to ask any questions of uh Mr mccardy I do want to caution the board that um although these the what is I think Jeff referred to as an affidavit by the prior Property Owners um are very detailed um I had to just point out that they're not notorized and also typically when you have um documents like this the person who is testifying to it they need to actually be here to testify um so be cross-examined they need to be cross-examined yeah I mean this is really just hearsay and unfortunately I just want to point that out to the board um Mrs trout offered to come uh I I I I I hoped that it would have been enough I I told her that at this point uh I knew that I'd be late on the agenda um she's 84 years old she was very kind and gave me a lot of time with this she left her phone number uh she offered to come that did cross my mind uh but I I was I I was hoping she wouldn't be necessary I just wanted to caution the board I mean you did you look at the photo it looks purp built look at the Interiors are exactly the same so I I would say mirror images but that would suggest they were flip they're not there's a a bathroom on top of a bathroom a kitchen on top of a kitchen the two bedrooms on top of the two bedrooms it was it's very clearly intended correct two separate entrances um yeah two two separate entrances the the units are are not accessible from the interior only the exterior and you've lived there since 2003 um have you ever made any changes internally um that would you know suggest that you were intending to abandon the fact that there was a duplex buil as a duplex no I lived there from 2003 to 2007 and and rented it out to two different unit two different tenants since then the upstairs unit is now empty uh my prospective buyer is going to be another like me he'll be an owner occupant who will continue to rent it out to the first floor tenants and live there occupy it the second floor himself anybody else have any questions for the applicant I we'll open even though there's nobody here we still open it up to the public procedural matter seeing nobody in the public will return it back to the board Elena so similar to the last one in 1973 the borrow oped the ordinance which for hited duplexes and permitted only single family dwellings in the on the burrow um pursuant to Municipal land use law non-conforming uses may be continued upon the lot or in the structure so occupied um and those structures can be restored or repaired in the event of any partial destruction thereof um however an intent to um abandon the the conditions that make it a duplex would mean that it wouldn't um exist as a legal non-forming use anymore um and I should have given the traditional test of Abandonment for the new board members prior but um the traditional test is that there's an intention to abandon and some overt act or failure to which um carries a sufficient implication that the owner neither claim nor retains any interest um in the subject matter of the abandonment so temporary nonuse does not constitute abandonment and change in ownership or tency or um the inability to find a ten a tenant doesn't um terminate the non-conforming use so I should have provided that beforeand would be like tearing down a wall and trying doing activities that would constitute a converting into a single family versus a versus a duplex and that's why we ask those questions to ensure that they maintained the like physical structure of both units um to ensure that they didn't want to convert it back to a single family home excellent yeah Elan is rundown would anybody like to making a motion to approve or disapprove the application I'll make a motion to approve um I believe Mr CI did uh due diligence and going to the library and while the updated isn't notorized uh from Mrs trout uh due to the fact that she's elderly and may not have been easily come in person I think uh her update is more than sufficient um and I make a motion to approve certification I will second any uh discussions on the motion hearing none we'll entertain a roll call vote for Miss Bon Cory yes Mr dulus yes chairman Hansen yes I think the applicant did a good job of putting together as much record as he could to establish that the uh use wasn't abandoned after the enactment of the zoning ordinance prohibiting such Mr famar yes Mr Schmidt yes Mr shriber yes M McCall you're approved all right thank you now um I know that the the with the other cases there was you know a certain time frame um so moving along with the sale I want to make sure I know everything I need to know moving we'll do a resolution memorializing the decision at next month's meeting then technically somebody could appeal the decision within 45 days does it work the same for a duplex certification as a b variance settlement date pens the paperwork really just certification it's not a variance case so I don't correct yeah okay that'd be great um I have a perspective buyer that's yeah we'll do a resolution next month either way but I don't know if that the appeal period would be the same for a CER it is for a certification versus a traditional approval we're we're really making a I'm not asking for a variance no we're making like a determination we're still findings the facts and conclusions of law in in our resolution so okay I just didn't want to give him the wrong information so after we do the resolution next month somebody could technically appeal once that decision gets published in the retrospect they would have 45 days to appeal the decision but you'll have the resolution next it depends on the two parties and the lenders and orders on what they'll accept yeah okay all right thank you thank you for coming in is anybody other business we have we don't have any correspondents does anybody have anything else they want to bring up bring to the board this evening seeing nothing I'll entertain a motion to adjourn the meeting all in favor I I any oppos long on I the longest one we've had in a while weour thanks suan May a little aggressive for us sixes are it's just it doesn't give some of the applicants enough time