##VIDEO ID:I-P1TgnyZKA## e e e latest i' ever stayed good evening everybody we're going to call to order tonight's meeting of the township of Bernard Zoning Board of adjustment the first item on our agenda is the flag salute so if you can stand please join us States stand naice in accordance with the requirement of the open public meeting laws not of this meeting of the board of adjustment of the township of Bernards was posted on the Bolton board in the reception hall of the municipal building in Coler Lane Basking Ridge New Jersey it was also mailed to the Bernardsville News whiy New Jersey The Courier News and Bridgewater New Jersey and it was also filed with the Township Clerk all on January 8th of this year as it was mailed electronically to all those people who had requested individual notice the following procedur has been adopted by the Bernards Township zoning Board of adjustment there will be no new cases heard after 10:00 tonight and no new testimony heard after 10:30 Miss keber can you do a roll call for us certainly um let's see Miss Balman Miss Pichi and Miss poar are re accused this evening um chairwoman Jers here Mr Cambria here Mr K here Mr tanky here Mr helverson here M Herrera here Mr Fishinger here Mr Warner here Mr Quinn here Mr SCH here and for the Miss keeper is present Madam chair you have a quum you may proceed excellent thank you U Miss keeper um tonight we're going to be hearing signature Acquisitions which is ZB 22028 um I believe that we're up to subm um so miss Philip Smith or Mr Berlin who's going first for us Mr Berlin excellent I think um we had agreed in advance I think um all the lawyers had agreed to 30 minutes so I could ask you to keep your comments to 30 minutes or less that would be terrific mron good to see you yeah before you get the clock running I just have a brief uh statement not having to do with the merits uh during the LA almost two years of hearings you have impressed on me the importance of controlling these hearings let the record reflect the 30 minute clock will start please 30 minute clock will start please proceed with your summation by enforcing the limits I have disre disagreed at times but I understand as a result I've spent a great deal of time in the last months trying to put a square peg into a round hole over 50 years of trying jury cases I have summed up hundreds of times in order to stay within the 30 minute limit I have written out my summation I have never done that before I made choices I I have read my summation out loud to see if it can be done in 30 minutes minutes I cut and deleted I am close if I'm not interrupted and talk fast I am um I can come close within 30 minutes I suspect that I might need another five minutes or so and I hope you will have some flexibility let's see how it goes okay thank you I repres can I just ask you would it be helpful if we give you any um time markers during it or just let you go okay thank you very much I represent the fellowship residence Council and myself for the record I reside at 7106 Fellowship Road in the Zion cluster which is the cluster closest to Allen Road I address the board on behalf of the residents who oppose this application this is not an ordinary application for relief from the zoning code the application can have a substantial effect on the nature of this community applicants request 25 variances exceptions and specific approvals see Mr Warren's memo of September 23rd to allow the construction of light manufacturing facility on the 28 acre lot light manufacturing is a permitted use on that lot we alleged that the relief requested is not necessary because of any condition on the lot but is caused by the size of the building which violates the code restrictions for f now what must signature Acquisitions prove in order for the variances to be granted one the variances can be granted without substantial detrimental detriment to the public good that the benefits of the deviation from the requirement of the zoning code would substantially outweigh any detriments that the purposes of a Minal land use law would be Advanced by a deviation from the zoning codes requirements and that the granting of the variances will not substantially impair the intent and purpose of the zoning plan and the zoning ordinances now what are the issues in this matter and what should be the matter presented to this board the applicant for 18 sessions over almost two years presented testimony asking this board to Grant 25 variances exceptions and specific approvals to allow a 244,000 square foot light manufacturing facility and allowed use on the 28 acre lot under certain restrictions and conditions we allege that this is not the correct issue the issue should be can the applicant submit a proposal that complies with the zoning code and if not should this board Grant variances and exceptions to allow construction the applicants rely on two cases Coventry Square versus Westwood and randor versus randorf Township they allege that if it fits on the property and can accommodate the problems of non-compliance it is okay to build it if that is the correct reading of Coventry Square an applicant could propose a three-story 244,000 house of prostitution by just asking for a use variance it would not affect the suitability of the site and the site could accommodate non-compliance with the code there may also be some idiot who says it's it's a benefit to the community all they would need is a use variance now I know that's ridiculous but it's just trying to make a point uh to show Coventry and Randol still require proof that the proposed variances can be granted without substantial detriment to the public good and that the benefits of the deviation from requirements of the code would substantially outweigh the detriments in cantry there was testimony at length explaining the reasons for the plan's definition uh deviation the opinion sets forth and I quote in respect to the first prong of the negative criteria that the variance can be granted without substantial detriment to the public good the focus is on the effect on the surrounding properties of the grant of variances not specific deviations from the conditions imposed by the ordinance the board must evaluate the pro the impact of the proposed of The Proposal upon the adjacent properties and determine whether or not it will cause such damage to the neighborhood to constitute substantial detriment to the public good a later opinion expanded the area to the municipality and immediate vicinity now the Coventry opinion sets forth examples of U uh reason let me read them to you there must be reasons to Grant relief an applicant cannot just request relief just because it wants it the court and Coventry clearly found reasons were proven and it found one relief would eliminate any pre-existing non-conforming use and replace the use with a proposal more in keeping with the zoning plan multifam housing could provide a transition use between resident and non-residential areas the variances would permit a more pleasing development further away from the streets and lastly and more important and relevant to this matter development would be less intrusive to Neighborhood Residential Properties in Randol the court found special reasons and determined that the variances could be granted without Sub sub substantial detriment to the public good and that there was no substantial imp impairment of the zoning plan and ordinance an example of the reasons the board found there was need for a supermarket that the development of property would be a positive step in anchoring the town center and lastly the difference between the allowed F and the request was minimal 0. 03 and complies with the F permitted in adjacent zones the court specifically ruled and I quote accordingly in making these findings the board found special reasons and determined that the variances could be granted without substantial detriment to the public good a review of the testimony in this matter produces no such testimony let's disc discuss substantial detriment to the public good signature has the burden of proof to show that the relief requested can be granted without substantial detriment to the public good the only testimony from the applicants Witnesses on this subject is the testimony of the planner and the traffic engineer and maybe the director of development their testimony on this subject consisted of one sentence each and I ask you to check the transcript they said and I quote The Proposal would have no substantial detrimental impacts period that's all they said on this subject that is it and that is all the relevant testimony on this subject from the appellant now there is an a legal Theory it's called net opinion those one sentence opinions are what is legally called net opinions the net opinion rule prohibits the admission of conclusions that lack support from factual evidence or other data instead a witness must Supply a well-founded explanation for their opinions if in fact the director of development did so testify I am not sure he did he is not an expert does not even claim to be his statement if given lacks support from factual evidence the tra engineer also testified that the proposal would not have a substantial detrimental effect again no facts just the statement I bring to your attention that on February 15 2024 he testified that he had no comment on trucks having an effect on residents since it was not part of the study checked the transcript classic net opinion the planner the same just one sentence no facts to support the opinion you are all residents of this community what would your experience be if the result of the proposal affected the environment in which you live as residents of this community you most certainly would agree that the proposal would have a substantial detrimental effect when you start deliberating considering the facts of everyday life you are intelligent people do not leave your bre rains outside the municipal building while deliberating the applicant in one set in its one sentence opinions alleges that 23 8384 truck trips per day including tractor trailers one every five or six minutes during a workday will not have a substantial detriment to your neighborhood if they went through your neighborhood really if not substant what is it beautiful music there are other detriments pollution noise effect on roads there's a gas line uh under that road that these trucks will be going through now we all spent two nights here very interesting two nights although the opposition had no obligation to carry the burden of proof they have done so during the two sessions of hearing 70 residents from the hills Allen Road Fellowship Village Mount Ary Road under oath testified setting forth facts as to why this proposal would have a substantial detrimental impact on the residents and their neighborhoods there is no testimony from signature Acquisitions during these um 18 sessions contradicting their testimony except the three sent sentences of the net opinion referred to and I just the people who testified went from a 10-year-old boy to mature adults uh from fellowship Village these residents who testified are not professional testifiers who get paid for their testimony they're not hired guns they are a cross-section of this community of your community they came forward to make public statements and opposition they are friends neighbors and they care about this community yes 20 were from Friends Fellowship Village and yes I did meet with them before they test testified I told them two things do not twist the tale of Truth and speak from your heart and in fact they did speak from their heart I bring to your attention that through almost two years of testimony 18 sessions not one resident of this Township came forward before this board to support this proposal and to indicate it would be a benefit to this community of course the applicant has not carried the burden of proof to show that the building of a 244,000 square foot facility resulting in at least 8384 truck trips and there's testimony that it could be more through res residential neighborhoods requiring 25 variances exceptions and approvals will not be a substantial detriment to the public good they have not even picked up off the floor the burden to carry the proof in this matter benefit to community applicants Witnesses testified that the proposal will put the vacant property to use and increase ratables the property is vacant only because the the applicant demolished the offer the building they caus the situation A self-made hardship is not a reason to Grant variances the property will not remain vacant they can build a facility that conforms to the code I wish I could say otherwise but I cannot that is why the code has restrictions and conditions the choice is not between an empty lot and the proposal it is between a facility that conforms to the code and this one does not the applicant alleges that the township will benefit as a result of 350 new employees who will shop in the township but the applicant testified and I quote we try to empty out the building so as to not obstruct the applic ation again they caused the situation and that testimony was from the director of development on August 9th 2023 they were successful just drive down Martinsville Road and look at the entrance signs the tenants are in Warren Township there is a lack of facts we do not know how many tenants will occupy the building we do not know how many employees will be employed just a guess they don't have tenant as far as we know if there was they would have come forward and told us there is no Market survey this is another example of a net opinion now my friend Mr Lair is a very good lawyer I'm sure he knows the case law is clear that the fact that the proposal may increase ratables is not a reason to Grant variances by the way there is testimony that this organization hired a prominent Law Firm mcarter in English to apply for reducing the taxes on their many other Office Buildings the applicant alleges that it is going to create 83 84 truck trips per day one every five or six minutes it may be more it is restricting tractor trailers from making a left turn onto Allen Road so they will not go through the hills note this does not restrict Trucks Only tractor trailers I asked his experts why restrict the left turn the answer was when there was an answer was concern about speeding well that is true but they also speed on Allen Road pass fellowship and on Mount Ary Road and they are not concerned about that applicant argues that the left turn restriction benefits the community really by forcing them to go through other residential sections the applicant argues that they are reducing automobile traffic at Computing commuting times that is correct however please review the reports of the traffic engineer and his testimony there is no mention of the 83 or 84 or more truck trips each day through residential areas that have their effect on residents that is the entire testimony as to the benefits in fact there are no benefits except to the developer there are no benefits to the community I'm sure Mr L knows that benefits to the developer are not a reason to Grant variances now the final paragraph of New Jersey statute 40 colon 55- d70 applying to both C and D variances says that quote no variance or other relief may be granted without a showing that such variances or other relief can be granted without substantial detriment to the public good you must balance the benefits and the detriments in your deliberations think of the scales of Justice put on the left side the detriments of this proposal 8384 truck trips for day through residential neighborhoods destroying trees on the 28 acre lot and replacing them with only 176 saplings although 649 are required noise and pollution from trucks and Manufacturing parking with for only one half of the parking spaces required even though the office building had 7 or 800 parking spaces put on the right side the benefits and put on the left side the detriments and see how the scales trip let's discuss F use the planner testified on October 12th 2024 about the typical concerns in evaluating an F variants and they are visual impact parking traffic impact and infrastructure you may or may not agree with this test but use has to be right occasionally let's assume me is correct and discuss these concerns visual impact you testified that the proposal has no adverse visual impact because the 244,000 square foot buildings are hidden from Allen Road by trees and Shrubbery really what about the sight and noise of 83 84 or more trucks including tractor trailers pulling out of 150 Allen's driveway onto traffic right in the face of the residents of Allen Road one every five or 6 minutes during business hours you do the math from 8:00 a.m. until 6:00 p.m. what about the visual impact of the residence of Fellowship Village Mount Ary Road watching and hearing 83 84 or more truck trips 7,000 per year visual impact is more than the facade of a building the architect showed you a picture of the proposed site look at it it shows a beautiful facade a few automobiles on the interior lawn just bear with me a minute I don't have time to put this on the screen but this is what I'm talking about an illusion however they are twisting the tale of Truth it shows no trucks where are the trucks including tractor trailers in order to fit two buildings totaling 244,000 Square ft previously occupied by the 7 or 800 parking spaces eliminating the possibility of open space look at the aerial pictures of The Proposal very little room for green and again here's another one look at it they are misleading you they tried to show you a Garden of Eden instead instead they are building a monstrosity environmental impact trees help to cool and beautify they filter air pollutants and mitigate flooding they capture and store greenhouse gases they provide habitat and shelter for wildlife all of these benefits which occur naturally are crucial to combat climate changes trees are never too mature and what has signature acquisition done literally raped the property of almost all trees the code requires them to replace 649 trees they are placing 176 SA saplings only replacing 20% of the retired required trees why too expensive maybe because of the size of the proposed two buildings no room for these and is there's any question about climate change we are living through it these couple of months warmer weather than we're accustomed to no water because of a lack of rain that is climate change traffic impact in parking these concerns are obviously related the applicant has spent a great deal of money and a great deal of this board's time on traffic its traffic consultant conducted conducted three traffic surveys please read the surveys they only surveyed traffic during Prime morning and Prime late afternoon commuting times and concluded that there would be Less Auto traffic if a light manufacturing facility than if an office building that may be true they don't need an expert Common Sense would know that however what did the reports and testimony of the traffic engineer not address any detailed testimony of how 83 84 trucks per day would not substantially impact the community the traffic engineer relied heavily on a publication of it International uh Traffic Engineers manual please read the introduction purpose and caution sections of the manual the manual specifically states that one the report does not supply standards or recommendations two the report is just presented for informational purposes three the report does not include recommendations for the best action or preferred application of the data next as to parking demand for manufacturing the report consists of 20 studies with a range from 0.78 to 2.33 we do not know the zoning requirements for these locations but we do know that this Township has set a standard and it should be followed parking the code requires 639 parking spaces The Proposal is for only 328 spaces including approximately 70 under each building which adds one story to each building they allege that the demand for parking is only 328 they say it is self- adjusting if a proposed attendant requires more parking they will not come what happens to flexibility as to their testimony about loading spaces there is testimony that the code is Antiquated you have no Authority if the code is Antiquated to change it only the municipality uh can do that because it would affect every uh lot that's affected by it that as you uh as to need Donna Holquist testified totally that there's a total lacking of fact we do not know how many tenants we do not know the kind of light manufacturing we do not know how L light manufacturing will be done is it hand created computerized how much office space and how many office employees how many visitors how about the number of sales staff uh staff and what about future tenants uh along the way why is the applicant submitting this proposal that requires 25 variances exceptions and specific approvals when they can build a facility that complies with the code can the applicant construct a light manufacturing facility on this 28 acre lot that complies with the code of course it can during my cross-examination of one of the applicants Witnesses I tried to elicit from the expert uh that a light manufacturing facility could be built on this 28 acre lot that conforms to the code Mr Warner interrupted me and said quote the board knows that my initial end of quote my initial thought was if they know it what are we doing here I bring to your attention that several of e applicants experts were asked during cross exam whether they considered the building of a facility that complied with the code and whether they discussed it with the applicant they all answered in the same way no that is what not what signature Acquisitions wanted why does the applicant not want to construct a light manufacturing facility that conforms to the code let's return to the director of development one more time he testified on August 9th 2023 and I quote the buildings are designed to generate the maximum Financial return and to build as many square feet of building as possible on August 9th 2023 he further testified we tried to fit as much building as we possibly could on the site without expanding light coverage they propos to do that by covering over the existing 7800 parking spaces with buildings they are in fact expanding late lot coverage and violating the F requirement lastly to explain why signature Acquisitions does not want to build a light manufacturing facility that conforms to the code the director of development further testified on August 9th 2023 it is important quote it is important to understand that the triple rents that we can get from industrial space far exceeds the net operating income for office space he then explains in detail that the net operating income for light manufacturing is $10 a square foot more than the net operating income for office space that is why they are submitting this proposal and do not want to discuss building within the code there is no other reason the larger the building the more profit even if it substantially impacts the community that is why they want a 244,000 square foot building rather than a building that conforms to the code what they are proposing is plain and simply greed greed greed if you approve this proposal as sure as morning follows night you will have an application from 110 Allen and 108 Allen both owned by the applicant for variances to build a humongous light manufacturing facility the larger the facility the more the rent I know each application is considered on its own merits but one of the considerations is what is on the adjoining properties instead of 83 84 truck trips per day 160 truck trips or 240 truck truck trips creating the largest light manufacturing facility in Somerset County please note the large for rent sign at the entrance to 110 and 108 I'm sure Mr Warren will advise you that the ability to make the most profit from a proposal is not a reason to violate the zoning code is and is not a benefit to the community I do not have the time within 30 minutes to discuss the fact that section 21-3 of the zoning code says quote unless specifically and I emphasize the word specifically permitted by a provision of this chapter no lot shall have more than one principal structure the word specifically has a meaning cannot infer that is probably the reason the office buildings have two Wings rather than two buildings there is no provision in the code that specifically allows two buildings in a light manufacturing Zone except as an accessory building Mr Berlin we're going to need you to I'm almost there just a summary of the summary of the summation this board has the duty to address the zoning code granting variances and exceptions under certain circumstances it also has the duty to protect the community from greedy developers this proposal is a prime example the only reason they are asking for all these variances an exception to build 244,000 square fet of building is greed they can build in accordance with the requirements of the code the only reason it is not as profit profit profit unlike in Covenant and Randol there are no other reasons they have not carried the burden of proof there is no benefit to this community by building a facility that requires 2 five variant exceptions and specific approvals rather than a facility that conforms to the code to argue that the truck traffic pollution noise destruction of trees will have no impact on the community goes against common sense to argue is nonsense Bernard's Township is a relatively small residential Community we came here because of what it is with a long-term resident or recent Resident as the the berlins are we love it its future is in your hands deny the proposal the applicant can return with a proposal that conforms to the code that is the purpose of the code you have heard from 70 residents tell you how this proposal will have a substantial impact on this community please listen to them there could have been more but as Yogi barer said enough is enough now the headline of the Bernard's news says it best just not for our town just not for our town protect our community from greedy from a greedy developer deny this proposal they have not carried the burden of proof I thank you for your attention and willingness to attend all these special sessions and I thank all of the residents of this community who attended these sessions to show their support for the rejection of The Proposal please listen to them thank you thank you Mr bman Miss Philip Smith [Applause] right thank you everyone I guess for the last record last time and for this record I am Jennifer Philip Smith and I do represent Fellowship Village and I wanted to thank you for the time and consideration that you have spent over the last almost two years evaluating this application and the concerns of my client and the others here in the township this is a case about a proposed project that is simply too much and in the wrong place the applicant here wants to build buildings that are 59,000 square feet larger than what your zoning code permits those industrial buildings would be about 30% larger than what's Allowed by the code and it's not because the property is too small this particular lot is over 28 Acres which is five times the minimum lot size in the zone this property is a blank slate but yet the applicant has come forward with a proposal that generates more than 24 items of relief and approvals including multiple D variances and as I go through today I hope to highlight for you items in the record key parts of the transcript where it indicates that it's too much in the wrong place such that if this board were to deny this application it would clearly be well grounded in the record I'm going to focus my concluding thoughts here in three areas first about the flawed assumptions and missing evidence second about the D4 variance the too much part of the application and about what the increased intensity would do as far as having detrimental impacts and finally I'll conclude with a few comments on the D1 variances that are required so let's start with the flawed assumptions and the ing evidence this application is notable for what the applicant cannot and has not told you we'll start with the testimony of the architect back on June 7th of 2023 and he brought forward the floor plans which if you recall were simply rectangles that were labeled light manufacturing and light manufacturing sloff they were notable for what they did not have I went through that with the architect if you look at the testimony from June 7th 2023 around Pages 90 through 99 I asked how many employees he didn't know what would the delivery schedules be he didn't know would any of the users actually need all the loading docks proposed he didn't know how much of the building would be used for storage and warehousing he couldn't say because they don't know the tenants they know so little about what tenants might be here that when I asked how large the bathrooms needed to be which were not even shown on the floor plans he couldn't tell you because even that will have to be designed based on the tenant and that information simply isn't available the same was true when you had testimony from the owner's representative on October 23rd 2023 at Pages 60 through 63 there it was admitted that the information you were getting about how these buildings might break down as far as warehousing and storage and Manufacturing and office were quote unquote assumptions and that quote he didn't know anything about anybody's specific operation at this point and that fact hasn't changed over the course the application I also asked whether any of the land constraints were the reason for the size of these buildings and the answer on page 54 was no that there were no land constraints to prevent the development of this site from staying within that 15% F from staying within the permitted number of amount of square footage now the data that was provided because the applicant couldn't tell you who the user was would was resting on or has rested on generalized data from it the applicant gave you traffic data based on the manufacturing use and they gave you parking database and the manufacturing use again not on any specific user not on hey we have a tenant and they have another location and we went out and did counts based on their operation but on just generalized studies and the applicant couldn't even give you data directly related to light manufacturing they had to use the manufacturing code which frankly doesn't square with your permitted use here in your code here in order to be light manufacturing it cannot include the processing of raw materials whereas the manufacturing code under it does include uses that have the processing of raw materials they're simply not quite the same use but that said that's the data that you were given you didn't hear that the land was too small because it's not it's five times larger than what's permitted in the zone you didn't hear that the land was a peculiar shape because it's not you didn't hear that the specific operation or the proposed tenant or tenants necess necessitated larger buildings because the applicant doesn't know enough or anything about the tenants you've been asked to approve buildings that are 59,000 Square fet larger than permitted using an industrial driveway in a residential Zone with roughly half the required parking based on the assumption that the tenants who ultimately occupy these buildings will be perfectly average accordingly you simply don't have the information required to approve approve this application that said even if you accept that this project will behave in a perfectly average way under the it standards the applicant still hasn't demonstrated its burden of proof let's start with the F variants the D4 variants now you heard Mr Berlin just speak extensively about the negative criteria so I'll focus on a slightly different part part of the test in order for this board to Grant a D4 variance the applicant has to establish that the site will accommodate the problems associated with the floor area that is larger than permitted by ordinance so what does the extra square footage mean here I look at it in three different ways one the extra square footage physically makes the buildings larger which in this case triggers a number of variances that I'll go into in a moment second the extra square footage increases the impact on environmentally Sensi sensitive areas and third the extra square footage specifically increases the amount of truck traffic which carries with it its own detrimental impacts so let's start with the physical size of the buildings again this lot is a blank slate that starts out already five times larger applicant is keeping a portion of the ringroad that exists in the wetlands buffer but it is modifying other portions of the road to expand it and if you want clarification on that you can look back at Mr Michelle's testimony on May 11th 2023 at page 106 where he indicated that the Ring Road is not staying in exactly the same place and in fact is pushing outward to accommodate the size of the two large buildings he testified on page 107 111 and 112 that the two oversized buildings are what's driving the Ring Road to be shifted outward in certain places and that that shift is what's triggering the variances for steep slopes and retaining walls the size of the building is also what's generating the need for a setback variance it's the location of that second building that triggers the need for the variance for the canopy the applicant could move it but it didn't and for that you can look at Pages 115 and 116 of that May 11th testimony and also the architect's testimony from June 7th at page 98 it's because of the physical size of those buildings that so many trees need to be removed 417 177 of those with a caliber of 10 to 12 in and 89 trees with a caliber of 12 to 18 in and finally it's because of the size of the building that there's simply not enough room for parking necessitating a variance to allow 314 physical spaces where 610 are required in short because of that extra 59,000 Square ft those buildings are too big for the site and they generate many other variances many other instances where the buildings and the applications simply don't meet your code now let's turn to the environmental impacts the increased intensity of the use here the intensity of the size of the buildings will have an increased impact on sensitive environmental areas you heard that a portion of the Ring Road is already in a Wetlands buffer and if you look at Mr Michelle's testimony from May 11th 2023 at 103 he indicated that Wetland buffers are generally needed or recognized as needed by the D to protect threatened endangered species and the wetlands themselves here that portion of the ringroad in the wetlands will remain and every truck that uses that portion of the Ring Road will run through that Wetlands buffer Mr Michelle testified that if the second building were eliminated the Ring Road could be removed from the wetlands buff if the buildings weren't so large and for that you look at Pages 104 and 105 of his testimony I already covered that there's an impact on trees on steep slopes on the flood Hazard area on the Dead River tributary every single truck that makes a turn out of this site and heads on Allen Road is going to cross over the Dead River you did hear that there was one positive environmental impact and that is better storm water compliance but the truth is any Redevelopment of this site with any use or size of building is going to have to improve storm water so it's not a reason to approve 59,000 extra square feet of industrial space just to upgrade the storm water what you didn't hear is how the applicant was going to address the concerns of the environmental Commission in their report from April 28th of 2024 there the commission asked if the applicant was going to upgrade his storm order to comply with the recently adopted rules on July 17th 2023 I don't believe they address that they also asked how the applicant was going to comply with the master plan uh climate section I don't believe we heard anything about that either so the bigger these buildings are the more of these environmentally sensitive areas will be impacted finally we look at how the size of these buildings directly relate to truck traffic the applicants traffic engineer calculated and these are not my numbers this is his testimony from February 2024 Page 6 three that even if you discounted the office space that this application would generate 84 trucks per day and more importantly he testified that it was simply a function of the square footage of the building the more square feet the more trucks it's just math I asked him to calculate what if you didn't discount the office and you took the whole size of the building under it how many trucks would that generate and he testified 110 I asked him what if you looked at the it data and you looked at the one other building in that data that was between 200,000 and 300,000 Square ft and you appli that metric and he indicated that would add up to 200 truck trips a day showing it there's a wide range that could be generated by this particular site but even if we go back to his 84 truck trips a day I asked Mr seckler over the course of a year how many additional truck trips with that 59,000 ft of industrial create and his answer was 6,914 that's 6,914 additional trucks on the roads every year directly related to the increase of f now we know those trucks have an impact first we know that the truck trips are going to quadruple in the in the peak hour you can look at his testimony on pages 35 and 36 we know that the level of traffic is going to cause a driveway at Fellowship to go to a level of service for leftand turns which is the most common turn and movement out of Fellowship Village it will take an average of 25.8 seconds for a person to make an average person to make a left-hand turn you can look at Mr seer's testimony on pages 28 to 32 the extra trucks don't just bring extra volume they also bring added detriments Mr seckler agreed that collisions with heavy trucks are especially dangerous for passenger cars motorcycles bicycles and pedestrians look at pages 4 7 and 48 he did not disagree that there are greater concerns if trucks pass through residential areas school zones and other places where pedestrians are common you heard from the superintendent that this area of your town is frequented or traversed by thousands of school children every day you heard from many residents that this is an area where children walk you know from my client that this is an area where many seniors live you saw Maps prepared by Miss holquest showing the proximity to Fellowship showing the proximity to recreational areas all of these places have high pedestrian activity with children and seniors who are most at risk from The increased trucks caused by the increased size of this building every square foot you allow over the zoning maximum creates more trucks that go through these sensitive environmental areas areas with children and areas with seniors therefore it is clear that when you look at the F variants and you say can this site accommodate the increased density can it in accommodate the increase in intensity it cannot it creates more physical variances it impacts environmental areas and creates those extra truck trips that have their own detriment finally I'll wrap up by talking about the use variants I know that we submitted briefs and I will not repeat mine just for time but our position is that a D1 or multiple Z1 use variances are required because the driveway for this industrial use is proposed to go through a residential Zone on a property that's used for an Agricultural use you did not hear any testimony from the applicant as to how this application meets the D1 criteria you heard no testimony whatsoever how it is particularly suitable to have an industrial driveway with 84 truck trips a day go through a residential Zone there's no testimony in the record and in fact it's not you did hear from Miss Holquist who put on the record all the reasons why this site is not suitable to have an industrial driveway in a residential Zone further she put on all the testimony as to why the applicant has not met the positive and negative criteria for the D1 variances the D4 Varian or frankly any of the C variances it is on that testimony and the months of testimony that you've had before on which you have a record that supports a denial of this application it's too much and in the wrong place so for all those reasons we ask you to deny this application thank you thank you m philson thank you [Applause] no Mr Lair tonight no Mr Lair this evening uh just give me one moment I wanted to pull up the uh the renderings if I'm able to do that just to have it up it let's see yeah I'm just trying to find the uh exibit A4 oh thank you no the uh the the one the architectural renderings uh they're in there somewhere yeah I can't read that from here see I don't see it here but I know it was to right yeah they there sorry I apologize I'm if I can't find it I will uh not have it up okay all right so I guess I won't be showing the rendering but good evening Michael silbert uh from d franccesco baitman on behalf of the applicant signature Acquisitions LLC uh Mr Lair uh cannot join us this evening he had a bit of a health emergency but he's okay um I'm filling in for him and I'm wishing him a quick and speedy recovery um I first want to start off by thanking the board its professional staff as well as the members of the public for their patience and stamina during these nearly two years of hearings I would also like to extend my sincere thanks to the board chairwoman for her steadfast and evenhanded handling of this application I speak for Jeff and myself when when I say that we've never appeared before more professional and practical chairwoman given the contentious nature of these proceedings so uh Madam chair your leadership deserves the Gratitude of everyone in this room and this board is truly fortunate to have you um the purpose of my closing argument is clear to address and correct the rumors and exaggerations and mischaracterizations made by opposing Council and certain members of the public throughout these hearings I hope to clarify what this application is truly about and what it is not about whether on posters or social media we have been bombarded with a range of unfounded claims from concerns about the safety of school children despite the close to school being almost 2 miles away to the accusation that this is really a warehouse disguised as a light manufacturing facility so allow me to start with what this application is not about this application is not a warehouse use on the site despite the comments from certain members of the public and fellowship Villages planner this application is not about truck traffic generated by an F of 19.83% as the board is aware the F was deliberately reallocated at the hearing on April 11th 2024 by way of a settlement agreement that was discussed openly before the board at that hearing the light manufacturing component of the proposed buildings will be under the 15% F the impacts of which are fully contemplated in the Township's code for light manufacturing uses in the E2 Zone this application is not about an additional 6,900 annual tractor trailer trips since the proposed 4.8% exceedence of the F must be evaluated within the context of the approximately 60,000 ft of proposed office space the mischaracterization of the anticipated truck traffic for this project as presented by Fellowship Villages planner suggests that she did not review the April 11th transcript or the revision submitted to the board on that evening the opposition's planner misconstrued Mr seer's traffic testimony Mr seckler testified that if the office space were treated as light manufacturing space the approximate 60,000 Square fet excess space would result and 6,900 more truck trips annually than a conforming building Mr seckler however never testified that this proposed application and the uh increased proposed F would generate more truck trips to be clear and as testified by Mr seckler there is no increase in truck trips for this project due to the proposed f as the board is aware Mr seckler calculated the truck trips exactly as requested by the Borge traffic engineer separating the office component from the light Manufacturing component to provide the most accurate traffic impact Additionally the board's own traffic engineer did not at any time challenge Mr seer's methods or conclusions any truck traffic generated by the Light manufacturing component of this project is allowable by your code since it falls under the 15% threshold for light manufacturing additionally some members of the public have Inc incorrectly conflated truck trips with tractor trailer trips a truck trip refers to any vehic vle larger than an SUV which could include hypothetically 84 trips per day by Vans not tractor trailers the vast majority of the Public's comments focused on truck traffic I think we can all agree that the real concern with this application is not the F relief not the C variance relief and not the existing access driveway and loot 2 it is the truck traffic associated with the light manufacturing component of this application I know that this board is already aware of this but I want to emphasize for the public that this board does not create the master plan light manufacturing is a permitted use in the E2 Zone and truck traffic is an inherent consequence of this permitted use the Township's master plan was comprehensively updated in 2023 and light manufacturing continued to be permitted in the E2 Zone clearly those who adopted the 2023 master plan believe that this area of the township is appropriate for E2 uses including light manufactur facturing although it is clear that the obors and the public F focused on truck traffic they failed to present compelling evidence of any substantial detriment arising from the relief sought in other words their concerns were not specifically about the truck traffic resulting from the proposed deviations but rather and to be candid about truck traffic generally associated with light manufacturing uses by definition truck traffic stemming from a permitted use light manufacturing can not be considered a substantial detriment respectfully after two years of proceedings the objectors in public have not presented any professionally qualified traffic testimony to address the requested deviations in contrast signature has had Mr seckler testify five times providing evidence the proposed belief will not result in substantial detriment to the surrounding Community the objectors and the public have failed to substantiate their claims with compelling evidence of harm it's likely that the objectors did not retain a traffic engineer because an expert in the field would have agreed with Mr seer's study and the methodology he used which was specifically instructed by the board's own traffic engineer I asked the board isn't it both telling and ironic that the most prominent concern raised by the public truck traffic was not addressed or refuted by the objectors through any professional traffic expert additionally many comments from the public focused on County roads but these roads are outside the purview of of the board's jurisdiction residential neighborhoods in Bernard's Township account for thousands if not hundreds of thousands of truck trips annually from Amazon FedEx and other delivery services signatures anticipated truck traffic pales in comparison and I say this with all due respect but the property owners in these areas do not have an exclusive right to burnard's Township or Somerset County Roads like other businesses in the township signature is utilizing its property in a manner consistent with and contemplated by the Township's Land Development ordinances as was testified by Mr seckler a fully operational office building at 15% F would have 800 parking spaces and generate 1,600 trips per day far greater than the 84 truck trips per day associated with this application now if the applicant eliminated the office space component of this application and built a fully conforming light manufacturing building the number of truck trips would be nearly identical as to what is being has been proposed and testified to the course of these hearings any reduction to the proposed light manufacturing buildings footprint would presumably come from the office component of the project not from the light manufacturing component this application is not about increasing the potential flooding of this area based upon some fictional flood map which depicted a disaster scenario which the obor's planner admitted she had never checked to see if such flooding event ever existed in this area of the township this application is not about a study area confined to the Allen Road Corridor Fellowship Villages planner quite selectively chose a study area that disregards nearby properties but rather chose to use an arbitrary and self-serving methodology I analogize a proper study area to any planning board's preliminary investigation requirements to see what a true study area would look like a radius analysis of a study area is the universally accepted and best way to evaluate the properties most impacted by proposed development not some arbitrarily drawn study the failure of the obor's planner for example to include the i78 corridor and all the other E2 businesses in the surrounding area was clever but not productive in terms of a serious and unbiased planning analysis instead Fellowship Villages planner went out of her way to create a study area which included the fellowship Village site as her focal point in essence there was no planning rationale for this exhibit since the E2 Zone allows light manufacturing as of right and a land use application for fell Fellowship Village for Fellowship Villages property is not before the board this evening while it is Undisputed that the vast majority of the township is Serene beautiful and a true New Jersey treasure the opposition plannner characterization of this small segment as bucolic is both logical and inconsistent with the actual character of the surrounding area what exists throughout the E2 zone is a balance a balance of impeccable architecture and design that is fitting for burnard's Township with commercial uses properly placed adjacent to a major interchange Highway Route 78 it is entirely possible for an area to remain Serene and beautiful while also accommodating thoughtfully planned and diverse commercial development and that is exactly what signatures achieved through its impressive architectural designs which I wish I could show you guys but you've you've already seen so regrettably the the opposition's planner went so far as to label the site as environmentally sensitive and relied on G GIS mapping which is historically unreliable the board's aware of this but to remind the public the issuance of a letter of interpretation by the njd for this site has resolved any concerns regarding freshwater LS and flooding issues now let's transition to the axis Road unlock 2 this application is not about a newly created axis Road the axis Road on Lot 2 has been in existence since 1983 and it was imposed as a condition by the planning board as part of a site plan and subdivision for what was then known as lot 7 and block 177 for those unfamiliar lot 7 formerly lot 7 now consists of current day lots 2 3 4 5 and 15 in Block 11201 the planning board accepted jurisdiction over that application Mutual cross access agreements were signed exchanged and recorded in 1983 in the Years subsequent to memorialize the mutual access mandated by the township as expressly articulated in paragraph 3 of each easement document the objectors have attempted to frame this existing access driveway in a bubble suggesting its sole purpose is to provide access to lot three but that is simply not true vested rights to the existing access Drive in lot two as mandated by the planning board extend not only to lot three but also to Lots four 5 and 15 and you don't need to take my word for it I emplore the board to ask your planner the reality is that multiple planning board applications ensued over the last four decades and not once did the zoning officer or any other Township official determined that jurisdiction did not lie with the planning board various applications were submitted to the planning board for permitted E2 uses including medical office and research and development facilities which are permitted uses in the E2 zone for the opposition's planner to argue that well there may not have been a zoning officer at that time to refer jurisic to the zoning board is is a completely absurd statement zoning enforcement officers have existed in this Township since at least the complete recodification of the Township's Land Development ordinances adopted in 1980 and they almost certainly existed for decades prior to 1980 when reproductive Medical Associates was established on Lot 4 they were not required to obtain any D variants relief for the use of the driveway on Lot 2 when RMA then transitioned for being an office to a medical clinic with Laboratories and research and develop and development facilities again no no devarian relief was sought or required even though the lat two access road was then in use boiled down to its Essence the signature lot is a 28 plus acre lot with less than 60 ft of Frontage on Allen Road the planning board recognized this anomaly in 1983 when it required that an access easement be installed on the adjacent lot to the West lot two in order to service the E2 uses on all the non-residential lots to the east turning first to the SE variances our position is that the sea variances are warranted in light of the desire not to expand the build buildable footprint of the buildings beyond the existing ringroad for a site which is being completely redeveloped it is not unusual and this board knows us all too well to have bulk or C variances to bring the site up to modern-day standards the opposition's planner in response Focus solely upon the crossbar at the latu access road as quote not being very pleasing to look at end quote but as a reminder the crossbar was not the applicant's idea it was a good suggestion made by the board through its professionals to preclude as a mechanism to preclude left-hand turn movements by tractor trailers out of the site with respect to the parking variants the it traffic standard speak to the realistic parking demand for the project it was testified by Mr seckler that the local parking ordinance was Overkill the opposition's planner disagreed but had no proof to refute the statement while acknowledging that she was not a traffic expert she did not identify any other sites or any other data to support her conclusion that the Township's parking ordinance is the appropriate standard rather than it it was also acknowledged by Fellowship Villages planner that the steep slopes are man-made if you recall Fellowship Villages planner was rightfully not concerned with these man-made steep slopes and neither should the board the fact is a Dom Minimus disturbance is proposed to these man-made steep slopes in order to keep the proposed buildings within the existing ringroad these steep slopes do not constitute your traditional environmentally sensitive areas as may be the case in other developmental proposals regarding the retaining walls the applicant has again demonstrated that the proposed deviations result from a concerned effort to keep the development within the existing ringroad it's important to remember that the retaining walls are entirely internal to the site not visible from Allen Road or neighboring properties variance for relief is requested only for The Limited port for is requested only for limited portions of the retaining walls the obor's planner was not an expert in noise was not an expert in vibration or pollution from trucks and truck impacts to schools yet she felt that he is testifying about these issues these impacts however are all expected and contemplated by the master plan which permits light Manufacturing in the E2 Zone the anticipated impacts associated with this project are are contemplated impacts section two of the mlul provides for the purposes of the ACT purpose G speaks of providing sufficient space and appropriate locations for a variety of uses including commercial and Industrial uses in order to meet the needs of all New Jersey citizens this community determined in its wisdom that this location of the township best fits the Township's requirements for the placement of E2 uses why is that because it is at the edge of town it is near a four lane roadway known as Liberty Corner Road and it is adjacent to an interstate highway known as i78 the E2 zone is not situated for example in the Township's downtown in other words it was no mistake for the Township's elected and appointed leaders to place the E2 Zone where it is currently located and remains when discussing the SE variants relief S one of the board members asked Fellowship Villages planner a very probing question wouldn't it make more sense to redevelop the site even if it requires some minor variances instead of letting it sit vacant the answer is an unequivocal yes so let's talk a little bit about what this application is about signatures proposed buildings are designed with beautiful highquality architecture that ensures they do not resemble typical light manufacturing facilities signature plans to make a significant financial investment in this project to guarantee that the architecture Blends seamless ly with the surrounding area they have no obligation to do this they want to do this the buildings will be positioned hundreds of feet away from Allen Road will feature first class Landscaping to further enhance their integration with the community look this is not a 1950s era manufacturing building rather it embodies first class architectural designs that reflect modern Aesthetics and thoughtful planning the proposed development is not visible from Allen Road or neighboring properties dense vegetation and the PS and easement mitigates any potential visual impacts associated with requested F relief and bulk variance relief light manufacturing is a much less intensive use of the property in terms of anticipated employee per square foot than a conforming office development thus while the F exceeds what is permitted there will be fewer employees in a conforming office use although the site abuts the R1 residential Zone the actual distance to residential develop is more like, 1500 ft thus there is absolutely no potential detrimental impacts to the residential zone for the variance relief requested in this application flowing back to the settlement agreement while we recognize that the terms of this settlement agreement are not legally binding upon this board it does demonstrate the ongoing desire to work amicably with opposing Council to resolve a number of issues the revised plan exhibits I referenced earlier reflect the changes that were negotiated and agreed to in the settlement agreement over several months many of which have significantly impacted the marketability of the project for my client but in the interest of moving the application forward and in consideration of many of the concerns raised by objectors Council and members of the public signature on its own agreed to limit its own hours of operation ensuring that no outgoing tractor trailer traffic is permitted to leave the property between 9:00 p.m. and 6:00 a.m. eliminate a tight variants signature agreed to significantly reduce the number of loading Bays from 24 total Bays to 16 Bays or eight per building and I think it's important to highlight that signature did not even require variance relief for the number of loading Bays proposed it could have put 50 loading Bays into the site without the need for variance relief this reduction which represents over a 33% decrease in the number of loading Bays on the property was done to address the Public's perceptions about truck traffic despite the applicant's contention that truck traffic is generated from the square footage of the light manufacturing space and not based upon the number of loading Baye to further address truck to further address truck traffic signature agreed to reduce the overall size of the buildings most notably this reduction came entirely out of the light manufacturing portion of the proposed buildings again to directly address the Public's truck traffic concerns rather than reducing the size of the proposed office space signature on its own agreed to to a building reduction that came entirely out of the light manufacturing component of the project there is one other significant change that the board and that the public will not see on the revised plan exhibits but is included in the settlement agreement for many months certain members of the public have passionately asserted that signature's proposal is a warehouse application in Disguise signature has repeatedly refuted these claims stating over and over again that this is an application for a light manufacturing use if this application were to be approved signature has already agreed outside of any condition of approval imposed by the board to deed restrict its own property for 25 years signature will record a deed restriction that prohibits the property from having any principal Warehouse uses this deed restriction should put to rest any lingering concerns about what this application is is about for example signature cannot go back to the zoning Board in 10 years and ask for a use variance to convert to convert the uses on the property from PR IAL light manufacturing uses to principal Warehouse uses to address the proposed F relief our planner relied on the cry Square case analysis to support the D4 F variants the question for the board in layman's terms is whether the site can accommodate the increase in F irrespective of the code requirement conversely the objector planner never even mentioned the cry Square analysis in our affirmative testimony importantly the opposition's plan planner in her assessment of the requested F and bulk variance relief omitted LW two from her analysis it is difficult to understand how a planner can adequately and honestly evaluate the impact of the proposed F and bulk variance relief without considering the fact that the adjacent lot two is largely vacant and undevelopable so on the one hand the planner spends considerable time discussing the existing access driveway through lot two in the context of D1 relief but then on the other hand she fails to provide any object Ive evaluation of how the proposed F in bulk variance relief would impact surrounding properties particularly given that there are large commercial buildings in the E2 Zone to the East and to the West is lot two spanning 14 acres which is largely vacant and unsuitable for development it is also worth noting that while that while lot two is not even owned by signature a separate owner of lot two consented to the submission of this application this is an important detail that the board should consider in its analysis of this application and uh I just want to take some time to address the uh Mr Warner's November 7th 2024 memorandum on the uh D1 variance relief required for this application so signature continues to strenuously object to the memorandum and any determination by the board that D1 relief is required for the existing access driveway located on Lot 2 nevertheless should the board determine that such relief is necessary it should not pose a substantial obstacle to approval and here's why this board is well equipped to evaluate the totality of the circumstances the established record the historical context surrounding the subject properties which will ultimately lead to a conclusion that the necessary proofs for D1 relief have indeed been satisfied even as signature continues to maintain its consistent position that such relief is unwarranted the board holds authority to Grant D1 variances in cases where non-permitted uses or non-permitted principal structures are at issue provided there are special reasons to do so while the promotion of the general welfare is often seen as the core zoning purpose amplifying amplifying special reasons the New Jersey Supreme Court has explicitly recognized that undue hardship may also serve as a valid special reason for granting a D1 variance it would be unconscionable for the board to deny this application the basis that the applicant failed to demonstrate the necessary proofs for D1 variance relief turning to light manufacturing on lot two the reality is that lot three lacks adequate Street Frontage Frontage for an independent access point to the extent that the board's planner included a section 35 planning variance in the initial report I assure you if adequate Frontage existed this contrived issue would not have Arisen and signature would have proposed access to its lot through its own property now assuming the board determines that D1 relief is necessary what is before the board is known as a hardship variance a type of use variance that predates even the landmark medich case that this board is all too familiar with denying the application in the light of irrefutable facts one the existing access driveway has facilitated access to lot 3 and other properties to the east for for over 40 years and two it was required by your planning board to ensure the future development of all of those properties to the east it would constitute a blatant infringement of signatures fundamental property rights it would undermine a 40-year precedent established by the Township's own planning board a precedent that signature and its predecessors en title along with the owners of lots four five and 15 have relied upon in good faith signature argues that lot three which consists of 28 plus acres cannot reasonably conform to a permitted use due to its lack of adequate Street Frontage given the E2 uses to the east of Lot 2 and the presence of overhead transmission wires which Miss Helquist spoke about at Great Lengths it is evident that lot two will not be developed for R1 Zone permitted uses this is underscored by its continued vacancy since the planning board's 1983 requirement reaffirmed in 1985 Mand dating that the that this access driveway serve future development all the lots to the east of Lot 2 looking at lot two itself let's really hone in on what's going on here I stress again lot two is largely vacant and has been vacant for decades upon decades except for the existing access driveway and the overhead transmission transmission lines this driveway this Infamous driveway occupies approximately 1% of the approximate 14 acre lot Lot 2 has consistently been particularly suited to its long-standing function as an access point to development to the east Mr Hughes testimony demonstrates that several purposes of the municipal land use law particularly purposes a g and H would be Advanced by this application all of which are tied and transferable to the access provided by the driveway and Lot 2 these advancements remain applicable to the ongoing use of the driveway the planning board time and time again has already undoubtedly found that Lot 2 is unique uniquely and particularly suited for E2 uses merely as an access point by both virtue of its context and because it is the only reasonable means of access to lot three the continued use of the access driveway is clearly reconcilable with the Township's master plan the 2023 master plan reads in part where potential conflict exists as in cases of non-residential and ab budding residential development careful site planning and design can minimize most impacts signature has delivered deliberately situated its proposed buildings entirely within an existing constructed ringroad to minimize perceived impacts related to lot 3's nonr residential nature given its proximity to the R1 Zone signature has agreed to restrict left-hand tractor trailer turns out of lot two although Lot 2 is located within a residential Zone it Remains the perfect lot to provide access to lot three again the conflict I identified if the master plan in the master plan about non-residential development a budding residential development does not exist here because Lot 2 is not suitable for development in this limited circumstance given the context of lot two the history surrounding the existing access driveway the lack of adequate Frontage for lot 3 and taking into consideration signatures careful site planning design to minimize any impacts associated with the use of the existing driveway on Lot 2 the applicant's proposed light manufacturing use of the existing driveway on a mere 1% of lot two can be reconciled with the ordinance's emission of such use turning to the substantial detriment simply put there is no sub substantial detriment posed by the access driveway un lot to as it has always served this function Mr seer's unrefuted expert testimony confirmed that the driveway will continue to serve as an access driveway albeit with fewer vehicle trips overall while there will be an increase in tractor trailer use the board has already implemented conditions to mitigate any potential impacts associated with this existing driveway the proposed improvements to the existing driveway are minimal designed to modernize it to to current County standards and to address the board's perceives perceived impacts associated with light manufacturing uses it is also evident that signature did not create this hardship signature purchased 150 Allen Road when it was fully occupied as an office building the collapse of the office real estate market and the covid-19 pandemic both external factors led to the need for alternative uses I want to make absolutely certain that the public and the board are aware of something signature in good faith prior to filing this application explode explored residential Redevelopment of this property with the township but the township was not interested in that option so what remains for Signature is a property permitted for light manufacturing which which must rely on the access driveway unlock too I'm not going to take up the board or the Public's time on the issue of the two principal uses on lot two I'll I'll try to address it as quickly as I can so while we continue to strongly object to any conclusion that a tax exempt activity involving the cutting of a small number of trees on a portion of lot two once per year qualifies as a principal farming use particularly given the case law we have provided showing that such an activity does not establish a municip a municipally controlled land use and is more into ordinary Property Maintenance signatures prepared to AB abandon the Woodland management activity on Lot 2 as a condition of approval should the board be unwilling to Grant variance relief for two principal uses on that lot our preference is for the board to either Grant variance relief for two principal uses on lot two allowing the benign and negligible Woodlands management activity to remain or alternatively make a determination that the Woodland management activity constitutes an accessory use to the E2 uses on lot two consistent with how lot two has been treated for decades and consistent with how with how Woodland management activities are treated throughout the township of Bernards and across the entire state of New Jersey however if the board is unwilling to adopt either of these approaches again I reiterate signature will abandon the Woodland management activity altogether so I'll just briefly conclude here this has been a long and challenging process over the past two years but I respectfully ask the board to look past some of the very passionate claims that have been made over the course of these hearings and focus on the true nature of this application I urge the board not to be distracted by the lot two issues which serve as a as little more than a diversion from what this application is truly about I ask that the board approve this application so this site can once again serve as a productive use within the community this application calls for The Logical Redevelopment and reutilization of property abing the i78 corridor for a purpose that the township has consistently permitted in this location for more than four decades and I'll close by saying that the applicant remains ready and willing to work with the board to address uh and accommodate any concerns that this application has for for the board members we want to resolve those issues and we hope that you'll engage in discussions with us if you have issues before uh Mak a determination on this application so thank you for your time and patience thank you thank you okay um we're going to take a five minute a very quick five minute um break before we hear um from our attorney so if we can ask everyone to be back in your seats within five minutes because we're going to start right then thank you e e e e e e e e e can I ask everyone to take their seats I think we are back on I think uh Miss keer we're all counter all the board members are are back here we're ready to go so if I could ask everyone to take their seats and then I think uh Mr Warner wants to share some comments uh before the board uh starts their deliberations thank you madam chair the uh if everyone's back can take their seats please uh before the board uh begins to deliberate and decide whether or not the applicant has met its burden of proof with respect to all the relief required of the applicant a couple of items threshold items number one uh let the record reflect that we have six board members on the days all of whom are fully qualified to vote this evening uh because they have uh been present for all the hearings Andor uh watched the tapes and or read the transcript so as to qualify themselves to do so and that has been certified to number two that's a threshold issue in every application uh the next threshold issue is not in every application but it is in some applications and it is in this application before the board can determine whether or not the applicant met all of the relief required of it there are three items of relief three D1 variances that the applicant contends they are not required to EST establish in this case and the obors contend that they are obligated to establish in this case so when we think about it it's only natural they can't decide whether or not they met the relief required until they first decide what exactly the relief is required before they decide whether they the applicant met the burden proof or not so these three items have to be decided uh first of all uh there is no dispute that the applicant is required to establish an entitlement to preliminary and final major site plan approval a D4 floor area ratio variance and 10 bulk or C variances and seven site plan exceptions however there are three D1 use variances that are in issued the applicant uh has noticed for these three D1 variances back the year and a half so ago uh but Reserve their right to continue to argue they're not required by noticing the board has jurisdiction to decide whether or not they're required and if any one or more of them are required the board has jurisdiction to decide whether the applicant met its burden of proof or not with respect to each one or more of them okay the uh and the board also has jurisdiction to engage in this process so I want to be clear on the record this is an interpretation uh of the ordinance and the facts and a determination under the interpretive powers of the zoning board that is inherent in the powers of the zoning board and also expressly permitted in the municipal land use law for this board to engage in making this threshold determination now I'm really going to sound like a lawyer because I want to give you the authority uh section 70b of the municipal land use expressly authorizes a zoning Board of adjustment to issue interpretations of the zoning ordinance section 10g of the municipal land use Law requires all land use boards planning boards and zoning boards to make findings of fact as well as conclusions in each decision on every application for development and our courts have made it clear that conclusions quote unquote referenced in the statutory provision the municipal land use law include legal conclusions on relevant points of law at issue in the application I'm really really going to sound like an attorney now because I'm going to give case sites Centennial land and development company 165 NJ super 220 law division 1979 Pagano V Edison Board of adjustment 257 NJ super 382 law division 1992 are just two of the cases that make what I just said clear uh in the case law thus the municipal land use law as well as the case law authorizes the board to make these threshold determinations what are the three variances that the board has to decide whether or not the applicant is required to satisfy its burden of proof with respect to one or more of them one is uh if found to be required a D1 variance to per at least two more than one two principal uses on uh on lot two where no single lot in a residential Zone this is adjacent lot two adjacent to the subject lot three uh where as no single lot in a residential Zone May host more than one principal use pursuant to our ordinance another D1 variants that the applicant says they're not required to uh obtain and the objectives say they are a D1 use variants to permit the use of the driveway on adjacent lot 2 for access to lot three whereas the driveway on lot two would take on the attributes of that use on lot three and thus constitute an industrial use in the R1 residential Zone and the third uh potential D1 variants is to permit a non-permitted use be it a warehouse use or any other use that is not permitted on lot three whereas uh such non-permitted uses including a principal Warehouse of use would not be permitted in the E2 Zone the board is going to address each one of these three variances and determine whether or not each is required to be satisfied the burn approv therefore Satisfied by the applicant I just want to say that uh all three as you may have heard all three Council submitted letter briefs to argue their respective positions the obors attorneys saying that these three of course these 3D variances are required and the uh applicants attorney uh saying of course that none of the three are required uh I as was alluded to earlier by some of the council uh provided preliminary legal guidance uh to the board by way of a memo along the board read the letter briefs of all the objectors and applicants attorney and hopefully also read my memo but I'm certain they did uh summarizing the position and giving my preliminary legal opinion and I'll uh summarize what my final legal opinion is and guidance to the board with respect to those legal issues that are appropriate to me uh for me to uh aine on as far as any factual determinations those will be made by the board members themselves the first potential D1 or first D1 variants that potentially would be required of the applicant is as follows again it found to be required a D1 variance to permit there with me uh to permit the use of the driveway on lot two for access to lot three whereas the driveway would take on the attri unlock two would take on the attributes of the use and thus constitute an industrial use in an R1 residential Zone the objectors contended that the applicant requires such a d one variance to permit the use of the driveway on lot two for access to lot three whereas by virtue of being a you an accessory use to the proposed use on lot three the driveway on lot two would take on the attributes of that use on lot three and thus constitute a non-permitted industrial use in a residential Zone the obors primarily relied on the New Jersey Supreme Court decision in knuckle V Little Ferry 208 NJ 95 2011 as well as other cas law they also contended that the access driveway use on the residential lot adjacent lot 2 is not a pre-existing non-conforming use nor did it ever specifically receive variance relief from any board uh the uh and even assuming arguendo that the applicant or some predecessor entity had a vested right at one time to use that industrial access driveway on the residential YT lot excuse me any such vested right was abandoned as a matter of law when the applicant intentionally demolished the office building on lock R by contrast the applicant contended that it was not required to obtain subsection D1 variance relief in this regard alleging that the knuckle decision is materially distinguishable from the instant case and that the appell Court's decision in a different case Stop and Shop the board of adjustment 315 NJ super 427 an appell division case that was reversed by the Supreme Court is more analogous to the subject case it's my legal opinion well first to with respect my legal opinion I think it's noteworthy that the applicant appeared in their letter brief to concede that the planning board's 1983 approval that spoke to this accessway in adjacent lot did quote did not ascertain formal variance relief for the driveway end quote and hence no prior D1 use variance or for that matter any variance relief was ever granted for the use of the driveway on a residential lot to serve as a principal access drive for a nonresidential use on lot three it's my legal opinion primarily for the reasons set forth in the letter brief of the objectors that the objectors position is the more legally sound position the knuckle decision and its progeny including the New Jersey Transit Court case that I cited in my memo govern this issue the applicant's alleged vested right to use the driveway even if it ever existed was abandoned as a matter of law when the office building on lot 3 was demolished and therefore no vested right could exist that would now negate the applicants need for D1 use virence relief in this case and any argument of detrimental Reliance or Equitable estole does not apply here and would not bar this board under the facts uh from requiring such D1 use variants at this time so it's my opinion with respect to the legal positions as far as the factual determinations to be made in deciding whether or not a D1 use variance is required for this reason uh the board will make the factual determinations within the appropriate legal parameters so starting with that variance or po uh potential variance first it's for the board to deliberate as to whether or not that D1 variance is required of the applicant there'll ultimately be a uh a vote on that issue as an interpretation while D variances ultimately require five yes votes for passage when they are at issue this is an interpretation this isn't whether a D1 or D variance has been satisfied the proofs therefore have been satisfied or not this is whether or not a d variance is required in the first place and for that a majority of the board for uh uh a least of four out of six would be required to make that determination so that is the first determination to be made by the board the first of three potential items of relief to add to the list if you will before deciding ultimately whether the applicant met its burden appr proof as to all relief so with that I'll turn it over to the board to deliberate and and make a determination as to whether or not a D1 use variance is required for the driveway on lot two okay so we should do one at a time here on these one at a time each one is separate independent it may be that uh some are applicable some are not we we we need to hear from the board to make that determination okay so board um we're going to start with with our thoughts on whether this D variance is required or not required this is a D1 use variance um for the use of the driveway on lot two to access um lot three you know as Mr Warner has mentioned we've read both memos um for both uh objectors and um and the applicant um you know there's two ways we can do this we can take a straw poll to see whether have views or if someone has strong feelings right from the GetGo that that they want to air before we do a straw poll um again on this we are not uh voting on The D variants we're only saying is it required or is it not required for this application does anybody want to kick us off or you want to take a straw pole if there's comments let's hear them I have comments but the only comment I would say is um you know the driveway was used for office purposes prior which would be car trips and small um delivery trucks but uh in my opinion this is a completely different use when you're bringing tractor trailers in so I I would think a D1 would be appropriate you think it's required for this I agree you think it's required I I'll also say from from my standpoint um I think it's a non-permitted use um and we have no specific variance relief um on the books so you know it's not our job to explain why it wasn't given in the past it's only before us now so I would also say it's needed um I agree as well and I looked at the knuckle case and I think it's on point case that is most on point in this case okay thanks Mr hon that's four right there so why why don't we just take a quick maybe Miss keeper can I just ask you again this is only is it required or not required on the use of the driveby Mr cambri so a yes vote means what and a no vote a yes vote means it is required for this application it doesn't mean you're granting it or not granting it we haven't deliberated that yet it's do we think it's required for its application so a yes vote means yes it's required yes Mr T yes Mr helverson yes M Herrera yes um Mr Krauss yes and chairwoman Jers yes okay we move to the next that's one now the uh second d one variance for or D variance for consideration by the board as to whether or not it is required of the applicant is whether or not a D1 variance is required to permit two or more principal uses on lot two that same adjacent lot whereas no single lot in a residential Zone which that lot is in a residential Zone May host more than one principal use uh the uh the objetives of course contend that the applicant does require that subsection D1 use variants to permit at least two principal uses on lot two whereas no single lot in a residential Zone May host more than one principal use the objective point out in this regard that Lot 2 is assessed as farmland and that it is also used for utility transmission lines in addition to containing the principal use of an access driveway for the proposed industrial use on the adjacent lot three by contrast the applicant contends first that utility transmission lines constitute infrastructure permitted out of a public necessity and that such utility trans transmission lines cannot constitute a principal or even an accessory use on lot two the applicant further contends that while l two is conceitedly used for Woodlands management for Farmland Assessment purposes and therefore has some tax exemption or abatement it nevertheless should not be deemed to have a farming use so as not to con constitute the existence of a second principal use on lot two and finally the applicant represents that and I think we heard it again in summation that in the event a farming use is determined to be a second principal use on lot two in addition to the commercial access driveway use serving lot three then the applicant agrees to cease cease excuse me such farming use on and correspondingly abandoned the property tax benefit of the Farmland Assessment uh designation for lot two it's my opinion to the board first that I concur with the legal position of the applicant that the utility transmission lines would not constitute a second principal use on lot two however I concur with the legal position of the objectors that the conceded by the applicant's use as Woodland's management for Farmland Assessment purposes would constitute a second principal use on lot two therefore in my opinion the applicant would be required to obtain a D1 use variance for two principal uses on one lot in a residential Zone whereas no single lot in residential Zone May host more than one principal use however if the applicant agrees or stipulates to cease such farming use and correspondingly abandon the property tax benefit of the Farmland Assessment designation thereon for lot two then that zoning deviation would appear to be eliminated and the applicant would appear not to require such D1 use Finance relief because only one principal use in my opinion would remain at that point on adjacent lot two so the determination in my opinion for the board to make on this one is first is a D1 use variance required for more than one principal use on a residential lot for lot two and then if so uh do you accept the stipulation from the applicant uh that they would effectively eliminate such otherwise required D1 use variants uh because they will cease one of the two principal uses and that would be a condition of approval assuming there is a condition excuse me assuming there is an approval can I just ask you a question on that so just on that last point the the stipulation that they would cease the the farming um The Woodlands management I think I heard it as as a condition of approval so how do we think about it since there is like we haven't discussed whether it's going to be approved or not approved the Cadence of the first thing you would do is you would make the determination whether it's required or not now uh in the event you determine it's required as with any I should say all of the other variants relief that you determine is required uh you would have to decide whether or not the applicant Adit the burden of proof or not uh and then uh uh you uh if they met the burden of proof uh uh then you would make a determination that you know with respect to it would presumably it would include that condition of approval got it or or or they met the burden of proof I should say with that condition of okay so um what's before us now is uh is a D1 use variance for two principal use uses on lot to required for this application again we're not voting on whether we would Grant it or not Grant it uh or deliberating it it's is it required is a question does anyone have specific thoughts on that I have a question first for Mr Warner is it true that there are only two categories of uses for this analysis one would be principal use the other would be accessory use the there are uses that could be a principle there's uses that could be determined to be accessory and then there I guess conceivably there there's uh items that might not necessarily constitute even a use for example the public transmission lines in my opinion are not even an accessory use let alone a principal use online too basically not someone else's use so tell comp and and to be an accessory use does it have to be related to the principal use it has to be customary and incidental to the principal use on the lot so therefore if the principal use is the commercial driveway accessing lot three through this residential lot two then uh with the say in this case the farming use the accessory customary and in incidental to that principal use of commercial driveway to lot three or would it not would it be such that it would be own principle use and as far as let's say the magnitude or significance of two uses uh C can you have a use that is I'll say almost the Minimus um you know constitutes 1% of the overall use just making something up compared to what is clearly a principal use that is the the main use of the property can you have that kind of disparity and magnitude and have two principal uses the the short answer to can you is yes got it thank uh the the the uh and there is a body of case law here's my caveat but not to that answer it's a definitive yes from me but my caveat is there is a complicated body of case law on what is and is not an accessory use uh be it principal use an accessory use or as I said some are not even uses per se um so uh quite in depth but uh certainly the magnitude of the use Visa the size of the property uh or the percent that it takes up um it can be small and still constitute a separate and independent principle use anybody want to kick this off here I just have one more question about the applicants Council in the summation talked about two Alternatives one was considering an accessory use and then there was a second alternative that was presented there about it that I what was that second Al abandoning the Woodland management activity Al together C no okay not that one there was a was there another I don't believe address well bear with me one second the answer is May my advice the chair will decide of course but my advice is maybe the the uh the um there was a public utility transmission use that in my opinion is not even accessory let alone the principal use for this purposes this purpose there's the Farmland use which I find is actually a use and a principal use as opposed to accessory use um I did not hear anything other than member Herrera heard which is there's a fix if you will if indeed it's found to be a second of her use then it would uh uh uh be eliminated as a condition of approval if the board would approve the variant relief one thing that may have been referenced and you may be thinking about I don't know and that's why I said maybe uh is maybe we want to confirm uh is that if it if you were to determine notwithstanding my opinion that the farming use is an accessory use as a opposed to a second principle use it would not require if you would make that determination it would not require D1 relief because it wouldn't be two principal uses on one residential lot it would be one principal use and one accessory use on a on a single residential line and that I believe is allowed I believe that doesn't even require bulk variants relief um however do not forget that there is a separate provision of the ordinance uh that reads uh be with me uh a bulk variant to permit access to the proposed non-residential use on lot three via the driveway on lot to whereas the private access to non-residential uses shall not be through a residentially Zone lot so there there may be yet another bolt variance required for that lot too um but think that may have been what all stemming from our determination as to whether the farming is a primary or necessary use the farming is a principal an accessory or perhaps not a theoretical determination you can make I hope that any other questions for Mr Warner okay um my opinion it's a D1 um second principal use is the farming use not the utility use and I would accept the applicant stipulation to Cease the farming use thank you m tenry other thoughts on whether this one's required I have the same view under the notion that even if it's I won't use the term di Minimus but its magnitude substantially dwarfs the use of the the easement and the driveway uh it could still be a principal use uh and so I agree with my colleague that the d1's required I I would also agree I think the utility transmission lines shouldn't be viewed uh at all here they're just a public necessity and we don't really have any jurisdiction over utility lines I do view the woodlands management for forland though as a second use and I agree with Mr T crey I would accept the stipulation that the um that the applicant provided should be provided that would just concur that the Farmland knowing that there's a tax AB bment um and such a large property and amount of taxes that could be paid if that wasn't on that that use or that principal um use it would probably you know be accessory if it was just like grass land that you weren't that you're still paying taxes on to me um so it seems like there's two principal uses on this because one's a driveway and one's a tax abatement of a large property number of acres do you guys want us to go to a vote or or are there other you know are there other arguments that we should hear before we go to a vote I don't have any additional argument I can M Herer okay Miss kefir this is again um a vote on whether a D1 use variance is required for two principal uses on lot Two and A yes vote means yes it's Reed and and the determination as to accepting a stipulation would essentially come later later Mr Cambria yes Mr Krauss yes Mr T crey yes Mr hon yes M Herrera yes chairwoman janers yes Mr War that's two out of three the third of the three uh d one variances that are at least argued by the objectors uh as being required of the applicant uh is uh if found to be required a D1 use variance to permit a non-permitted use including a potentially a principal warehousing use on lot three whereas principal warehousing and other potential non-permitted uses are in indeed not permitted in the E2 Zone I.E whether this is warehousing or something other something non-permitted other than light manufacturing the board is aware of the definition of light manufacturing but being a repetitive person that I am I will repeat it uh light manufacturing as defined in section 21-31 of the Land Development ordinance is as follows light manufacturing shall mean an activity which involves the Assembly of products from previously prepared materials and which does not involve the synthesis of chemicals or the processing of raw materials you heard testimony uh from the various Witnesses with respect to this issue you heard summation argument and contention uh with respect and reference to prior testimony with respect to this issue uh whether it falls within this definition or not or if you even have sufficient evidence to make that termination one way or the other uh and uh you heard with respect to uh a stipulation uh uh with on behalf of the applicant uh that there is a settlement agreement there is already a an agreement to provide a 25y year deed restriction that the use will only be used for light manufacturing purposes with Associated office space pursuant to the ordinance definition and processes and procedures for tenants to be required to conform to same uh you heard all that I'm not going to characterize that I will not ever uh uh uh uh interpret the evidence or or or make factual determinations uh that is the province of you as board members and you alone uh so uh that is the next determination to be made uh there's no real legal issue for me to opine on for you there uh that is a is it or isn't it that that is the question yes okay so um what's a issue here is whether a D1 use variance is required for a principal Warehouse or some other non-permitted use with respect to this application definitely not I I think that by virtue of the settlement agreement and the 25y Year date restriction there there's no evidence that this is going to be used as warehouse but this is definitely going to be used as light manufacturing thanks M Herrera I agree fully applicants not asking for it so we don't even have the discretion of Grant it's not in their application uh it's essentially the issue gets kicked over to our zoning officers when permits are issued and all so it's not before us so I do not see this as an issue um yeah I'll weigh in I we did uh I think the applicant did notice for it so it's important for us I think to aine on it I I agree I don't think it's needed here I think we have a proposed use of light manufacturing and Office Space which is allowed in this Zone I think the applicant has made several stipulations helping to Aleve concern and we did hear concern from from residents over a non-permitted use but I do think the stipulations including um that the tenants would procure a zoning permit to confirm that um their proposed use complies with our ordinance and that along with the deed restrictions I just think there's enough in place here that that it's not required I'm an agreement to I have nothing to add I concur okay Miss kefir the question is is a principal is a D1 use variance required for a principal use or or some other non um allowed use wareh principal warehousing or some other non-allowed use Mr Cambria no Mr Krauss I say no on this or or yes it's not Reed no it's not required no it's not required is it required is the question don't confuse me Mr tanky no Mr hon no Miss Herrera no chair of Engineers no uh the board has concluded its threshold determinations and uh interpretations and uh the count may be 24 not 25 variances if I recall correctly but uh uh uh now the board moves on uh to its primary obligation which now that it has its full list of items of relief required of the applicant uh the board must determine whether the applicant met its burden of proof with respect to all of that relief uh very quickly uh the relief is preliminary and final major site plan approval a D1 use variance to per the use of a driveway of the driveway on lot two for access to lot three uh because it constitutes an industrial use which is not permitted in the R1 residential Zone a D1 use variance also to permit two principal uses on lot two uh whereas no single lot in any residential Zone May host more than one principal use for the ordinance uh and the rest were the nisp items of relief at D Floor floor area ratio variance to permit an excessive F floor area ratio of approximately 19.83% on lot three the subject lot whereas the maximum permitted F in the E2 zone is 15% uh then we had both variances you have this list all Council has been provided with this list of all the relief uh and it is a part of the public record and has been um so I will go quickly uh proposed disturbance of uh steep slopes in the 20 to 25% category I'm not going to get into the magnitudes uh proposed disturbance of steep slopes in the greater than 25% Capa category um I believe the building beat to PO posing a residential Zone setback of approximately 95 ft because of the canopy was that eliminated or is that still are you still proposing to go 95 ft I didn't eliminate it from my list whatever the board's buuder whatever the board's if the board wants us to eliminate it we'll eliminate it well you you have to tell the board what what relief is if you're going to take away some relief that's required by complying with the ordinance with respect to the setback I think the phrase is speak now or forever hold your peace we can eliminate it okay uh then that's eliminated it might be down to 23 uh bulk variant to propose a retaining wall uh exceeding the 8 foot maximum permitted height along the south of the uh south of I'm sorry located south of the Ring Road uh another retaining wall exceeding the maximum permitted 8 foot height Northwest of the Ring Road and another retaining wall exceeding the maximum 8 foot height south and west of building a um about bar to permit as I said non-residential use on lot three which is also a d variant so arguably subsumed uh a deficient to a proposed total of 328 off Street or on site parking stalls on lot three whereas the minimum required is 610 construction of a retaining wall and fence and regrading within the required 50ft buffer area from lot two uh a waiver of the wetlands conservation eement to the township that would pertain to a wetlands area on lot two a waiver of the obligation to merge Lots two and three into one lot uh and then the site plan exceptions which are under a different standard as the board is well aware uh 177 of the proposed on-site parking stalls would measure 9 by 18 ft uh rather than 10t by 20 foot uh as required uh light mounting Heights of approximately 16 ft on 19 proposed light poles whereas the max mounting height for light poles is 12T light poles Mount uh separated by distances greater than 80 ft whereas lighting fixtur shall be spaced a distance is not to exceed five times their height 5 time 16 is 80 uh so this would be greater than 80 ft spaced uh design exception for a uh average illumination levels of 1.3 ft candles in the area of building A's loading dock the maximum permitted is .9 foot candles uh same relief for 1.6t candles in the area of building B's loading dock whereas the maximum permitted is not9 foot candles and same relief of approximately 1 zero foot candles in the areas of both building a and building B's undercover parking area whereas the maximum permid is 09 foot candles and the final design exception deficient locations and door dimensions actually both of the fire Lanes fire lanes are required to be in front of public entrances and at least 25 ft wide and have a road edge of at least 20 feet from the structure they serve and here this would be uh those fire Lanes would be non-compliant with those requirements I'll just also mention that when you're considering all of this um there were three specific approvals they do not rise to a level of design exceptions or variance relief they're in the list that everyone saw one is a specific approval to permit the removal of existing trees of vegetation from the required 50ft buffer area along lot two that is located in the Northwest portion of lot three whereas no such removal shall occur in any buffer unless the removal is in conjunction with construction or selective thinning of trees is approved by the board so you have to decide whether you're approve it uh same similar with uh if determined by the board to be necessary a specific approval to permit insufficient screening within the required 50ft buffer area along lot two that is located in the Northwest portion of lot three uh and the third and final specific approval to permit the applicant to plant 176 replacement trees and to contribute to the township tree Fund in Le of providing uh the total number of required number of the total required number of replacement trees which is 649 replacement trees required that is the relief when you consider this two things one consider the relief uh as I understand the applicant to be pres application be presented in totality uh meaning either you approve of the relief or you do not for example five affirmative votes are required for passage of any D variants here we have two D1 variances and one D4 floor area ratio variance so in considering all of this relief consider it as one application and also consider it in conjunction with all the conditions of approval that the applicant stipulated to why do I say that because never at least in my experience has there been a vote of either it's yes for the relief or no it's yes for the Rel relief along with the conditions that the applicant stipulated to to mitigate the detriments associated with that relief or no uh NOS are unconditional uh so uh that list is a a list that was provided to everyone if I were to read it now aside from the fact that my life would be at risk uh it would probably takes several hours uh but the board members have that list applicants and objectors Council have that list that list has been part of the public record for some time now uh so I will try to preserve my life and not it now um the uh that is the final uh inquiry and deliberation a vote that you must make uh after these protracted proceedings uh and again uh if five or more of you vote in the affirmative the relief is granted if less than five of you IE 4321 um zero uh the the uh then the relief is not granted any objection from applicants or objectors councel none let the record reflect that all three noted in the negative that's for the court reporter uh it's up to the board now Mr finally finally Board gets to talk about this a little bit um does anybody want to start us off I'm happy to or somebody else wants to can can I bot Mr Warner ask him a question yeah so it's the the concept of undo hardship and what I've seen in the briefs is that it's undue hardship on the owner uh as opposed to applicant and if we're talking about the easement area on lot two uh who who Who's the relevant owner in case of hardship is it the applicant that has the easement and will benefit from the easement and the potential uh decision that we make or is it the fee simple owner of lot to if if you're considering undo hardship with respect to any of these variances uh the applicant is the party that is contending their entitled to the Rel uh it uh well under any of the criteria um so uh the they are doing so as I understand it with the consent of the owner of the adjacent lot to but the applicant is the party that is contending they're entitled to any relief that you deem required relating to adjacent lot to so the the if undo hardship becomes an issue that we deliberate we should be looking at an undue hardship to the applicant correct thank you one more U process question uh before we get into it maybe there'll be another one after this one from me like it sounds like an attorney reserving your right to ask more questions we're talking about everything all at once everything yes and we're so if we're yes over here and no over here we're talking about it all at the end ultimately the application is presented as one for example and this is just by way of example if there is a d variance that has a particular uh standard of relief that is generally higher than both variances or design exceptions and five of you do not excuse me less than five of you conclud that has not been satisfied in essence the application cannot be approved okay any other questions for Mr Warner Mr Warner's gonna eat amend yeah um I'm happy to kick us off if she want here any board member can begin deliberations any board member can end deliberations with the discretion of the chair so obviously there there's a lot um to talk about uh with this application and I'm sure board members are going to want to you know share their thoughts on it I'm happy to kick it off um and I'm going to start by focusing on the D variances because they just have the higher um burden of proof here um I think with respect to um the permitted use of the driveway which which we determined was a D1 you experience that was required um I do think there's an undue hardship argument there I do think lot three lacks the adequate Street footage and it's been in use for 40 years um and I do think there's an undue hardship argument there however when I switched to the D4 variance for the F that's where I um have some more concern terms I I think the F does generate the intensity of use of the site and and you know the possible other intensities of of traffic and and other traffic coming from trucks um I do think our ordinance anticipated truck traffic to some extent and I think um was mindful when they sent an F of 15% and I do think presumably that had to assume some degree of office space already built in there so I think limiting the light manufacturing space to 15% while it's better than what we originally heard I still think intensifies the use here um I did have some issues with the data um provided with respect to the truck traffic and in my opinion I I felt it was inconclusive we heard ratio and we heard numbers anywhere from zero to 200 the truth is nobody knows what those numbers are we don't know specifics we don't know the use we don't know the tenants so it's very very difficult I think to be convinced that there is no detriment um coming from an intensity of use um and I did not or I could not Zone in on specific benefits to the community for the increase of f um specifically so I felt that um the detriments uh did outweigh the benefits for the D4 so I guess I'll stop there I'll just say that with regard to the bulk variances I mean I don't really have an issue with them it's nothing that we don't see normally here on a project as size um the specific approvals and to me the trees I had a little bit of an issue with I think it was a little iive uh but the heart of the matter is is the D4 F and that's where I have a problem too Township puts know puts limits on the floor area due to the potential effects of the surrounding environment and the infrastructure and I just feel that this is going to put you know undue strain on the infrastructure and um I agree with the F office component was probably built into that so I I don't agree with the assumption that the light Manufacturing uh portion you know meets the township requirement that's where I came out as well I agree with both of my colleagues and in the traffic study it may be state-of-the-art industry standard but it's very generic and I found lots of the uh comments and testimony um from residents uh from Witnesses of the obors to be very compelling because they're on the ground uh they know the streets they know the traffic patterns they know the issues and I think we have to responsibly factor that in uh and the the traffic study may be as good as it gets an industry standard but we have more evidence that's been presented to us and I think we have to take that into account it's really the F issue is where I was getting stuck thank you Mr hon I agree that is where I was stuck as well um we do know there is a significant relationship between the and the truck traffic and we know that it's the truck traffic that is bringing so many different detrimental aspects um and I just don't see any positive aspects to granting with such a large floor area ratio I don't think that the 19 I believe it's 19.83% is necessary where 15% but I did hear during um applicants closing statement that they are willing to be flexible and work with us on that and I think that in the past we've worked with applicants to try to reach an agreement so I'm hoping that with us expressing our concerns that there can be some sort of dialogue thank you Mr Herrera I concur with much of U that's been said um on the D D4 so I'll Focus the comments there as well I you know I appreciated Mr uh travalini testimony um very early on and trying to be as as forthright um with what the scope of the project was and what can be anticipated but as has been noted there's just a lot of unknowns and there's also a lot of testimony and by both um Witnesses presented by the applicant and also in the public and the like about the methodology used around the the traffic study um but whatever method the methodology that was presented uh as the industry standard notes that there is going to be traffic tied to the F and while there is a range as has been noted to I don't follow the concept that because the light manufacturing aspect of the plan is less than 15% of the F that that means that there's not going to be any detrimental impact I I don't I don't follow that um and I I guess I guess I don't agree with that yeah um and I also heard tonight that there's not going to be any increase in truck trips as it relates to this increase of F and I I just don't think that the record holds that to be the case um and I also have heard um from appellant councils characterization that this is going to be the Minimus and I I don't think that the record um supports that this is going to be the Minimus in any way because of that I I I don't think that that burden has been met so I would concur um on the D on the D4 D4 is yeah I I think um I think you know the per the purpose of the F in my opinion is to limit the intensity of that use or to limit the density of development and that allows you know for a better quality of life and however we Define it we heard it defined a million different ways whether it's quieter cleaner more green space whatever however you define that um and I think you know and and also can this intensified use be supported by our roads and by our town and everything else and and I think we didn't we didn't meet the burned of proof on that one um I also agree with Mr tank creedy you know we didn't talk specifically about the C variances I think there's a lot in there I think um that makes a lot of sense I think you know I'd also add a comment that you know I do believe that signature demonstrated I think commitment to addressing the concerns voiced by our town our you know our town planner engineer all our town professionals I think there were over 125 different you know agreements or or stipulations and I think that was meant to have a positive impact within our town um um so you know I I don't agree that it's only greed that that's driving this application I just don't believe that I think that they're trying to work for us I do think that you know the last couple of years whether it's the pandemic or or other changes in our economy has caused changes and pushing businesses to innovate and adapt and and have new realities and I think embracing all these changes are going to be really critical for the long-term success of our businesses and our town and I do think having vacant buildings um is a detriment to our town whether it's lost opportunity lost jobs safety and all other things and that's the purpose of the board we're trying to work with applicants and members of our community and I view signature as also a member of our community and that's our job to try and work with you to allow for this type of evolution but it has to be done without detriments to the character of our town and we have to be sure of that I I fully agree with that and you know there there are comments characterizing signatur as an outsider coming in and I completely disagree with that notion and I think signature is has really taken a lot of steps to accommodate the the concerns that the public has that the the board has expressed uh and even you know bringing down the light manufacturing to under 15% I think that's a great move and and accredit the signature uh but it sounds like we're a bit stuck and and if echoing M Herrera there's a way to there you know we're open signature is shown that it's open so Madam chair I don't mean to interrupt anybody on the board if I'm allowed to can you I'd I'd like to finish if we can because I want to make sure that we hear all the um thoughts of the board I agree with everything that was said I appreciate all the efforts of the applicant and I appreciate your patience over all these hearings and your professionalism um but when I look to the uh 2023 master plan chapter one the third item on there is to control and calm traffic in town that's one of the failures of this application the other one is the land chapter two land use management and objectives item five is uh development densities and intensities should be planned at levels which do not exceed the capacity of natural environment and current infrastructure and growth inducing infrastructure should not be extended into the rural Country Side yes other comments from the board yeah I'd also like to make a statement with respect to um community members because we asked for the community um or we encouraged I would say um members of the community to engage in this process and and you've done so for the last 18 months feels like a lot longer than that even um but to make comments to ask questions to clarify things and that helps us I think help shape our own dialogue so I do value the community's participation and the support is vital you know as we move forward kind of together to to make the town um stronger and uh more unified Community I'll with that and I just want to say because i' I've been to most of these hearings in person I think there's only two that I watched on video and unfortunately one of them was the last one which was one when the community got to speak and I just want to I know Mr Warner said it that and I'll say it too to the community that I did watch that uh video and I did listen to everything that the community did hear and I felt badly that it couldn't be that had that had to be one of the few ones that I missed in person um but I did listen to to all of that and I do Echo what you had said before about their involvement throughout this process thank you Mr camri just say one thing as far as the traffic and and the truck traffic um one of the biggest impacts while it isn't near downtown and and in the center of our community 20% of our residents live in the Hills so that's a huge population that has to Traverse that area that we we've talked about we had a traffic study I remember questioning one item about you know how many trucks are in the study we couldn't tell what kind of truck was actually counted was it a bus was it a landscaping guys you know that are traveling in that area or was it a tractor trailer I lived in the hills for 10 years and the only tractor trailers I ever saw were people moving out of the hills or into the hills so so you know it was difficult for me to comprehend any number of trucks you know large tractor trailers that weren't going to a maybe a restaurant dropping something off going back and forth on the roads that all of us see live and Traverse and have to take our kids to and soccer practice and everything else that we're doing everybody's doing all day long for work and um just just our everyday lives and how it wouldn't impact us um we know that something can be built there we we I know that it will impact us either way right because right now there's nobody traveling um from that building um prior to that there was an office building and you know people went to work and came home from work so it was very metered and we understood what the traffic flow was with a new building it you know we can't restrict a building not being built there or something being built there there's going to be a change in the community and we're all going to have to be impacted in some way this you know this just seemed a little bit to me and maybe the board other a little bit larger than of an impact because we couldn't gauge what was going to happen um we we knew the building would be there we don't know how many trucks are going to go back and forth we don't know the hours we didn't know the use it was very difficult for me to make it you know see the positive part of it versus the negative application thank you um M keep we call a did did we address the the UND hardship issues well if we're ready to vote on the application as a whole yeah I think we we can make more comments about the undo hardship because I was agreeing with you okay chairman okay well you can well have a comment is under um so I guess at this point we would entertain a motion to either Grant the relief sought by this application or deny the relief sought by this application and all assume if it's a grant uh it's with all the stipulated two conditions as set forth in the list as mentioned previously if it's a deny all all denials are unconditional if you will Madam chair we would like the opportunity to address we've been waiting two years to hear what's what the concerns are I'm sorry I can't hear what he's saying if you're making noise the applicant's been waiting for two years to hear the board discuss this application and taking feedback we've heard questions but now we've heard board talk amongst themselves we've heard the dialogue we want the opportunity to see if we can address some of the concerns that were raised by the board sorry sorry deorum the board is more than capable of handling anything that comes before it without a loss of decorum from the members of the public please okay will you finished with your statement yes we'd like the opportunity to address the board's concerns particularly as it relates to the F okay I think um I'm happy to make a comment um my my view and unless Mr Warner is going to O overrule me I'll always weigh in if you let me but please go okay my view is that this has been going on for two years and the board has asked many questions back and forth so I think in your summation you covered some of the issues that we were already thinking about at this point so I feel like we've heard all the testimony and the case is rested and at this point we should vote I think very much regardless of the outcome of this vote we'd like to see a Redevelopment um for Signature but at this point I'm not open to additional testimony and that's well within the if I may Madam chair yeah please to assume the discretion of the chair and certainly in the event if and when in the future someone including the same applicant wishes to make a different application uh the law permits same so long as it does not cons race through deata that's one of those Latin legal uh uh uh terms we like to use uh but uh if it's substantially different sufficiently different um but uh there's no obligation of the board uh to to re-evaluate or hear different application after it has completed its hearings and fully deliberated and is preparing for a vote so the chair is well within our discretion to say no we still would like to address the square footage based on what we heard from the board and the number of loading bays and I think it would behoove the board to hear what we would come up with based upon it's fair it's fair enough for put that on the record he put that on the record the law is as I said the chair's discretion is more than well founded and so now I understand the board will proceed to a vote yeah I I think that's the right path forward here I'm interested in what you have to say but I think it's another day and another plan and I think if you wanted to come back before the board um we'd be happy um to hear your uh not substantially similar plan um so at this point if there's a motion if anybody wants to make a motion I'll make a mo you want to go ahead go ahead okay so um I would make a motion to deny the application um based on the D4 variants um the site cannot accommodate the problems associated with propos used with the greater F than permit and I'll second I said I'll second the okay and and just for the record a denial is a denial while reasons were given throughout deliberations and while reasons were given with the motion uh the fact of the matter is cumulatively uh uh the basis for the denial has been expressed by theard uh throughout these hearings including in their deliberations and ultimately there will be a resolution memorializing that determination and that resolution pursu as the cas La will govern uh the basis for the board's decision Miss Keir so so a yes Moe yes vote means no that's right that it's yeah the motion was to deny it so if you vote Yes you are voting yes deny the application that is correct Mr Cambria yes Mr Krauss yes Mr tanky yes Mr hon yes M Herrera yes chairroom Engineers yes 60 to deny and and I would say to to Signature I you know bringing the site to Modern standards I do think it's beneficial to to the community um and and a site plan of this size is always going to have a number VAR es the design exceptions and all that and um you know we I I hope it's brought to Modern standards I hope you go forward may I M chair the case is over may I no not not right now sorry um are there comments from Members I have a comment like about the case or just well no no just comment the case is over we're moving on the agenda we're moving on the agenda so it's number six comments from members but anybody can make a comment now I'd like to thank the board um you know for all their efforts you know this board is a volunteer board it is not paid um anything it's certainly been a an enormous time um commitment from the board and not just at our meetings here right we're meeing briefs and you know we're doing a lot of things when when we're not here um and you know for the last 18 months it's included uh additional meetings so you know hundreds of hours worth of additional time in addition to all the Resident cases that we normally see so I just like to thank the board you know Miss Herrera came even when she could not attend Mr Cambria had other commitments he told us a year ago he couldn't do it and and he stayed with us for for a year Mr halison was working um through some issues and made every effort to be here Mr tankr and Mr Krauss made every effort to be here here every time and and I appreciate that and our board professionals um Miss kefir Mr Warner uh big thank you to you guys for your time commitment as well and thank you madam Sher for your leadership through this it's much appreciated second that here here thank you you can see I'm not stopping right now I'm not stopping anybody from cing um uh are comments from the staff this keeper we have um next December 4 is that right Miss kefir yes December 4 is our next meeting it is um we have a full docket that night and it will also be our holiday celebration well look at that so I encage thank you December 4 a motion to adjourn motion to second second to all of you Mr Berlin thank you so much