Minutes: August 20, 2018
1. CALL TO ORDER: 7:07 p.m.
2. STATEMENT OF COMPLIANCE
Pursuant to the Open Public Meetings Act, Chapter 213, PL 1975, adequate notice as defined in Section 3D of Chapter 231, PL 1975 of this regular meeting has been provided to the public and the press on January 22, 2018 by delivering to the press such notice and posting same at the municipal building and filed with the office of the township clerk as well as posted on the township website.
3. SALUTE TO THE FLAG
4. ROLL CALL
Michael Furrey (MF) - Chairman - P
Carol Kadish (CK) - A
Michael Cheski (MC) - P
Angela Erichsen (AE) - A
Craig Williams (CW) - P
ALSO PRESENT—Laura Lai-Minteer, Recording Secretary
5. PUBLIC PARTICIPATION
Motion to open the meeting to the public was made by Chairman Furrey and was seconded by Mr. Williams. All were in favor.
3 Silver Spruce Drive Soil Dumping
Pam McCann - 5 Red Oak Court, Sussex. Mrs. McCann asked for an update regarding any soil testing done at 3 Silver Spruce, its neighboring properties, and soil that remained in the overturned dump truck. Chairman Furrey replied that Mayor Shortway and Congressman Gottheimer had a conference call with DEP’s enforcement division of solid and hazardous waste. He said they reviewed the approximately 15 site visits the DEP made and received information today that, apparently, on January 23, 2018, the DEP took core samples of the road leading up to the dirt but he does not know the depth of the sampling. Chairman Furrey answered Mr. Williams that the dirt pile is about 75 feet high with a width of 5,000 square feet. He said the mayor and Rep. Gottheimer asked for the test results because they believe testing might not have been done in the right area. Chairman Furrey said he followed up and spoke to the assistant commissioner and the director of solid waste enforcement, who both indicated the DEP did some testing. He said he also went out with Eric (Gorovoy) and took various runoff water samples on Mr. Gorovoy’s property at 1 Silver Spruce, on his road, and brought them back to the lab. Chairman Furrey said no volatile organic compounds (VOCs), such as gasoline byproducts, were detected in the water sample test results. He said the DEP has not provided the results of the soil testing that the DEP apparently did in January even though they were requested.
Chairman Furrey said his understanding is that during the investigation of the dump truck that overturned on May 21, it was understood that samples of the material were to be taken by the Sussex County hazardous materials emergency response team for analysis. He said does not know samples were not taken, but his understanding is because the accident occurred on a county road. He said Vernon Township did its own investigation with county involvement. Chairman Furrey answered Mrs. McCann that she could contact the mayor’s office to try to find out where the dirt went after the accident. Mrs. McCann wanted to know the role of the EC in the investigation if it was not to find out this information. Chairman Furrey responded that this question has been posed a lot. He said it has been discussed at EC meetings for the last four months and is in the minutes and he thinks he made it clear at the last town council meeting that because the EC is not a regulatory body, it does not have enforcement powers. Mrs. McCann asked if the EC had the power to investigate by asking questions.
Chairman Furrey said he has had several phone conversations since January with DEP enforcement agents, the assistant commissioner, and the director of solid and hazardous waste. He said the answer was that there was nothing there, that there was no solid waste. Chairman Furrey said when he went to the site, he saw solid waste, including bricks, concrete, asphalt, rebar, and height. He asked the DEP how they did 14 site visits and never saw any solid waste. He said the only way to find out the answer to everybody’s question whether the soil is contaminated is to do discrete core sampling of the material. He said the EC made several requests to the DEP in writing. EC members agreed with Mrs. McCann that the DEP is not doing its job. Chairman Furrey said the EC requested for samples to be taken and tested. He said his assumption is that the police did an investigation and know what happened to the truck, if it was impounded, and where it ended up. Mr. Williams thinks the EC should ask for the police report involving the incident. He said he will speak for himself and will ask for the police report. He thought there should be a log and said the EC also can inquire about anyone’s presence at the accident, specifically, any county representatives, to ascertain their role during the accident and what they did do or did not do, i.e., take samples. Mr. Williams said the EC may not have jurisdictional wherewithal but can apply pressure. Mrs. McCann said this type of support is what the rest of the community is seeking and would be in cooperation with the community to get answers.
Chairman Furrey said now the regulatory authority is Vernon Township zoning officer Alison Larocca. He said in 2014, the Sussex County Soil Conservation District (SCSCD) did an investigation and gave (Joseph Wallace) a violation. Chairman Furrey said the DEP then came out. He said he read today that the DEP issued a notice of violation, and subsequent DEP visits for four years claimed there is no solid waste, which he found puzzling. Mr. Williams said Josh Gottheimer has more influence than the EC, and he went to the site. Chairman Furrey added that Rep. Gottheimer lodged a complaint about the DEP, contacted the Environmental Protection Agency (EPA), and started a petition on Vernon’s behalf. The EC is trying to get the word out to people using Facebook to have them voice their opinion. Mrs. McCann agreed that having the congressman’s support is helpful but does not think it is enough. She asked how long it takes to show up when a soil gets contaminated. Chairman Furrey said what he got from the DEP is that some of the activities are not as regulated in New Jersey as they are in New York state, and that is one of the reasons Wallace’s activity could be stopped in New York. He said what defines a clean (non-contaminated) fill and moving of dirt and moving of material is not very well regulated. He said how to define if it is contaminated or not is by testing and then it can be compared to site remediation standards, under soil cleanup criteria. He said they have very strict direct contact criteria with limits and if the tests exceed those limits, then it is considered contaminated. Mr. Williams does not understand why SCSCD required silt fencing when he built his house and excavated but now this huge mound exists apparently without any requirement of such fencing, which allows runoff to go wherever. Chairman Furrey said in 2014, Cliff Lundin, now retired but who was with SCSCD at the time, issued a stop work order that included a requirement for an erosion plan, a mitigation plan, which was never done. He also does not understand why the SCSCD is not doing more to have Mr. Wallace comply. Chairman Furrey said the mayor is meeting with SCSCD this week to try to get them to respond and help mitigate the situation.
Mrs. McCann said the dirt broker idea is not a new concept, mentioned the Dirty Dirt investigative report, and said there also have been cases tried in New Jersey. The Dirty Dirt report was done by the New Jersey State Commission of Investigation (SCI), which was after Superstorm Sandy when there was a lot of illegal dirt movement, which Chairman Furrey said sparked Senator Bob Smith among others to start pushing the senate bill to support action, which would give Vernon Township more enforcement power. Chairman Furrey said Vernon Township is the first municipality to pass this type of soil fill ordinance, which was passed in April. He said it was then modified after an environmental attorney and two engineers provided background information to improve the ordinance. He said a problem with the ordinance is that it does not address issues that occurred before its adoption, which have to be addressed by other regulatory agencies. He said anything forward can be enforced. Chairman Furrey said his last conversation with the assistant commissioner and the director of solid waste was encouraging because they said they were going to follow up and do something. He said one of the actions demanded was for them to examine the solid waste, test the soil, follow up on solid waste regulations, and follow up on any violations. Mr. Williams commented that the DEP has changed in the past decade and is now underfunded with staff reduction. Chairman Furrey thinks the state and county are pushing it down to the local level and that Vernon Township needs to stay focused while trying to address the issue on its own.
Chairman Furrey said the EC can ask if the testing on the soil from the overturned truck was done and, if so, where are the results. Mr. Williams and Chairman Furrey answered Mrs. McCann that the EC would be as transparent as possible and should be able to make information gathered from the mayor’s upcoming meeting with the SCSCD available. Mrs. McCann said she is not pointing any fingers but asked if the silt fencing was a local zoning issue as well as a county issue. Mr. Williams said the silt fencing is handled by the county and not locally. He wondered, if that is being ignored, then where do you even go? Chairman Furrey answered if it is spilling onto the neighbor’s property, then it is a local zoning issue. He said he did not do water samples of runoff on Dan Gannon’s property but did them on Eric Gorovoy’s property. He said they met last Thursday and he took water samples and will put a report together. Mr. Williams said with past zoning issues, unless there was encroachment on someone else’s property, he does not think the zoning officer had authority to go on a property to investigate. Chairman Furrey believes the SCSCD could stop Wallace and that there is a serious and obvious solid waste issue. Chairman Furrey said when he heard back from the DEP, the DEP said it did not see that solid waste issue.
Mr. Williams asked if there is any affirmation that the stop work order is being observed. Chairman Furrey said it went to court, and his understanding is that it was not clear that the township had tried to enforce the SCSCD’s stop work order. He read from the 2014 DEP inspection report: “failure to obtain a solid waste permit prior to construction or operating a solid waste facility. Based on the observations of site visits during the incident investigation, the property owner was backfilling partial area land to destroy a usable area about larger than a 5,000 square feet area, in a semicircle shape being filled in with excavated fill material. The fill material contained a large amount of brown, black colored soil, dirt, and small amounts of concrete, stone, brick, wood, plastic, and asphalt pieces. Crushed for importing up, unloading fill material. Wood, mulch, and asphalt piles, bucket loader, excavator were at the site. Site owner provided the fill material testing reports but the report does not clearly indicate soil cleanup standard. Then after, the owner stated a previously provided data was incorrectly provided. Another certification from the fill material supplier without lab analytical data. Property owner was requested by phone and emailed to provide fill material lab analytical data with sampling records and checklist item information. Fill material generator as per the Dirty Dirt guidance policy. However, property owner failed to provide requested information of fill material imported at the site. Unable to determine fill material cleanup standards, hence the fill material is considered to be solid waste.” Chairman Furrey said subsequent reports said there were no violations. He said if the EC had the enforcement capabilities of going on Mr. Wallace’s property and doing soil sampling, the EC would do it.
Mrs. McCann said Mr. Gannon mentioned at the May EC meeting that he had runoff on his property. Chairman Furrey said there was bubbling out from the pile going across the road and into wetlands. He answered that Mr. Gorovoy’s property is located there and he gave permission to do testing. Chairman Furrey said the VOC results came back with no detectable VOCs. He said the remaining results should be available in about a week and will be made available. He said this was done in addition to the other water testing that was done for approximately 25 residents. He said a few results showed levels of arsenic, which is sometimes naturally occurring in the water supply and that there were no detectable VOCs in anyone’s water tested. He said EC members are determined to do what can be done as a commission and get a resolution. Mr. Cheski added that they are all volunteers that care about the township’s environment, that the mayor is working hard on this issue, and that he is happy about Rep. Gottheimer’s support. Mrs. McCann said she does not know what role the township attorneys play or what research they can do on this matter but asked if they can look at cases that have happened. She wondered if they could refer us to an environmental attorney or get someone in to advise. Chairman Furrey replied that Jacob Grouser, an environmental attorney, came up from New Brunswick and met with the mayor and John Auberger, and Jean Murphy was on the phone. He said this attorney worked on cases in Chester that were similar to Vernon’s problem involving movement of large amounts of soil. He said in that case the attorney was able to help reverse some of the activity. Mrs. McCann said fundamentally, we need to know what we are dealing with, and that is the question, to which Chairman Furrey agreed. Mr. Williams said the key is sampling and testing. Chairman Furrey said he learned from the environmental attorney that there are laws where the DEP is put on notice and that it has 30 days to do the testing or it will be done for them. Chairman Furrey said that comes with paying the environmental attorney, and testing is the 30- to 40-thousand-dollar range. He said the township is responsible for the legal advice and some kind of environmental engineering oversight for any kind of consulting. The question is how to get reimbursed for that and how to get assistance. He said the township is developing a legal strategy and has proposals, and it is a matter of putting it in front of town council. He said he wrote a report to the town administrator and to the mayor, documenting their conversation and the EC’s recommendation, which is testing. He said EC members provide as much expertise as possible. He said there will be another meeting and a lot of information will be condensed to make it easier to understand and read. Chairman Furrey said the EC welcomes input and that members want to do what is right for the township and for everyone to get some resolution.
A motion to close the meeting to the public was made by Chairman Furrey and was seconded by Mr. Williams. All were in favor.
6. LAND USE BOARD (LUB) LIAISON REPORT
Mr. Williams said this is old business and that the National Winter Activity Center (NWAC) is going before the LUB this Wednesday regarding erecting the sign.
b. LUB # 5-18-4 - Burger King
Mr. Williams said that the LUB has not looked at it yet. It involves an existing building, an existing parking lot, and existing electricity. He said what they are doing is essentially like a facelift to include a sign package, sprucing up the front, and making some American with Disabilities Act (ADA) improvements to the ladies’ and men’s rooms. The EC determined there are no environmental issues.
c. LUB # 8-18-6 - Kevin Little - Variance for Constructing a Single-Family Home on Landlocked Parcel of Private Road
A new septic system will need to be constructed. Mr. Williams said the following concerns need to be considered: 1) depth of the well, 2) a fairly steep slope, which will require quite a lot of terrain management in order to shoehorn this house into the landscape. He said from one side of the house to the other, gradation is almost 30 feet. 3) not enough information on how suitable the native soils are for septic, having only two soil logs, 4) reliability of the power supply to the pump tank and whether it is being monitored. Also, he pointed out that there will be a lot of excavation requiring silt fencing.
d. Chairman Furrey inquired about the demolition of the board of education (BOE) building being on the agenda. Mr. Williams said the LUB had difficulty finding enough people who have no conflict in the matter. He said there is a record of a hearing that the historical preservation commission (HPC) had previously on the site and that the HPC was fairly in agreement of the conditions that the property owners must meet in order to gain HPC approval. He said this meant having historical markers and taking more interesting pieces of the building to incorporate into the design without preserving the whole thing. Mr. Williams answered Mr. Cheski that the building was previously used as a school and also used as a municipal building.
7. OLD BUSINESS
a. LUB Applications Review - All
b. NRI - CW/All
Ms. Erichsen was assigned to the vegetation section. Mr. Williams worked on the open space subsection of the land use section. He said when looking on a county map at farmland preservation and open space together, there is very little left of the township to develop. He said close to 65 percent of the land surface of Vernon Township is already accounted for in terms of open space divided between federal/state/county/township government. Mr. Williams discovered there is the Pochuck Mountain Wildlife Refuge called Bacon Run, located largely behind the schools going from Lake Wallkill to Lounsberry Hollow. He said part of it is owned by the township, and part is under the stewardship of the (New Jersey) Audubon Society. He said there is a state entity called the Highlands Greenway Preserve that has pieces of property with no connectivity. He also learned that the historical Prices Switch schoolhouse is county owned. Mr. Williams said the designated farmland preservation entities that he could find are the Borisuk property called Glen Drew Farm, the Weis property located off of Warwick Turnpike, Pochuck Valley Farm (Vance property), Prices Switch Farm (Kadish property), Meadowburn Farm (Gerard property), and Borderland Farm (Martin property). Mr. Williams said what should be incorporated into the NRI is the municipal-owned property designated as parkland. He said the EC needs to provide information on what the township has preserved before approaching Green Acres for anything. He said for the geology section, he is trying to blend the high points of the Connolly NRI and more recent one to bring it together. Mr. Cheski has weather data. EC members suggested Mr. Cheski use a different color for edits in the Word document to show what had been updated.
c. 3 Silver Spruce Drive Soil Dumping - MF
Agenda item was discussed during the open public meeting section.
d. Open Space - Greener by Design (GBD) Proposal
Chairman Furrey said the Masker Marsh property is cleaned up and is in the process of being retested. If everything is clean, he said they want to close by the end of August. GBD prepared a fact sheet on the public question. Chairman Furrey said the stickler seems to be who can put this information out. He said it is being researched whether the EC or the greenway action advisory committee (GAAC) can promote or support the public question or if it can be done through Friends of the Vernon Greenway. He said Bob (Canace) is suggesting that Friends of the Greenway is the organization that can promote this information. Chairman Furrey asked members to review the fact sheet and then comment. The referendum passed and will be on the November ballot. He and Mr. Williams spoke at the August 13 town council meeting and told the town council they appreciate the support and gave an update on committee volunteer efforts made over the last couple of years. He said there was much support and very little opposition. The town council voted four to one on the ordinance and three to two on the resolution. Chairman Furrey said needed efforts include marketing, ensuring people get accurate and understandable information in a simple format, and determining who can make these efforts. Mr. Williams said that the EC is typically supposed to be politically neutral. Chairman Furrey asked Mayor Shortway to have an attorney look into who can make the effort.
Mr. Williams said by looking at different sections of the county map, he found a few new trail sections to explore going from Highland Lakes all the way to Vernon Crossing Road. He said he will provide the information to GAAC.
e. Water Testing - MF
Chairman Furrey said water testing was discussed during another agenda item.
f. Secaucus Resolution to Ban Polystyrene - MC
Mr. Cheski said the Association of New Jersey and Enviromental Commissions (ANJEC) forwarded him information on Maplewood and Rahway regarding polystyrene. He showed EC members a hard copy of an email from ANJEC with links. Chairman Furrey asked Mr. Cheski to email this information to EC members and also to the recording secretary. Mr. Williams wondered what the tipping fee is for its waste removal, how much of school cafeteria refuse is plastic, and then how much of that refuse is food or items that can be composted. Chairman Furrey suggested Mr. Cheski contact Vernon school district business administrator Steve Kepnes to get his input if the EC could present to the BOE.
g. Black Bear Hunt - MC
Mr. Cheski had distributed information to EC members for their review. Mr. Williams thought the way the information was presented was not clear because he felt it was an advocacy document with support for the proposition and it read as a one-sided conversation. He said the EC previously had a well-attended bear presentation that included a man from California who discussed birth control and had said the average litter size there was 1.25 cubs per pair but in New Jersey the size is about 3.5 cubs per pair, in large part due to the ready availability of food in New Jersey. He said capturing and releasing bears into a more rural area can be done but does not solve the problem. He is not entirely sure the bear hunt is the answer, either because the good bears are in the remote areas and the bad areas are concentrated in areas too close to residential areas where a lot of human food is available and hunting is not allowed. This, in turn, makes more room for bad bears because good bears are removed from the equation. Mr. Cheski said he does not know the rules or regulations, specifically, but he does know they are not enforced and that people are required in bear areas to have the proper disposal receptacles, which includes Vernon Township, and is supposed to be enforced by the DEP. He responded to Chairman Furrey that he would obtain and provide the EC with these types of rules and regulations so the EC can reinforce adherence to them. Mr. Williams said there is no mechanism other than public information and inspiration. He gave the example of when the EC identified a problem of bears regularly scattering A&P supermarket refuse behind the building of the supermarket, the EC approached the property manager, and the issue was addressed. Mr. Williams said voluntary preventative measures include screw-on tops. Also, Waste Management has large containers that are difficult to tip over. Mr. Williams said the EC could perhaps address garbage disposal at the condos. EC members agreed with Mr. Williams that the EC should encourage property management companies to get bear-proof dumpsters in areas where the EC has recognized the issue.
h. GAAC Trail Clearing - Sunday, August 12 - MF
Chairman Furrey said the trail clearing was missed but that there will probably be one in September and October. He thinks they can continue working on the Police Athletic League (PAL) trail.
i. Vernon Street Fair and Farmers’ Expo - Saturday, September 8, 2018, 11 a.m. to 4 p.m. - All
Chairman Furrey said the EC and GAAC are signed up with a table. Mr. Cheski said he will be unable to attend. Mr. Williams will set the tent up. Chairman Furrey said Paul (Kearney), Angela (Erichsen), and Toni (Cilli) will be attending. Mrs. Kadish had said previously that is uncertain if she will attend. Chairman Furrey said all of the vendor spots were sold out.
8. NEW BUSINESS
a. Solid Waste Dumping - MF
Chairman Furrey said this agenda item was already previously addressed earlier in the meeting.
i. Write about information for Vernon Township website.
iii. EC report.
9. LUB APPLICATIONS UNDER REVIEW
10. APPROVAL OF MINUTES
a. July 16, 2018 - Regular Meeting Minutes
Motion to approve the minutes was made by Chairman Furrey and seconded by Mr. Williams. All were in favor.
11. COMMISSIONERS’ COMMENTS
a. August 13 Town Council Meeting
Chairman Furrey spoke about the dumping and what the EC is doing and he also spoke about supporting the referendum. Mr. Williams addressed the council several times during the meeting. Mr. Williams said there was an idea by some that prior to approval, the proposal should include definite, absolute plans for development rather than the possibilities. He spoke about the township asking for and receiving permission from Highland Lakes property owners to take property from these property owners along Breakneck Road in order to put up guardrails and the sidewalk. He questioned why there is now an attempt to get the previous property owners to maintain it. He said the requirements put on a township property are different from a commercial entity being required to put in and maintain a sidewalk on their property. Chairman Furrey did not think that was the intent, but Mr. Williams countered that it was the reality of what was being asked.
b. The Farm at Glenwood Mountain
Mr. Williams mentioned that he was impressed when he visited recently.
Motion to adjourn was made by Chairman Furrey and seconded by Mr. Williams. All were in favor. Meeting adjourned: 8:58 p.m.
Minutes submitted by Laura Lai-Minteer, Recording Secretary