Minutes: May 22, 2019

Call to Order

Meeting was called to order by Chairman Theobald at 7:00 p.m.

Statement of Compliance

Pursuant to the Open Public Meetings Act, adequate notice of this regular meeting has been provided to the public and the press on January 14, 2019 by delivering to the press such notice and posting same at the municipal building and filed with the office of the township clerk.

Salute to the Flag

Chairman Theobald led the assemblage of the flag.

Ms. Decker stated that Ms. Angela Erichsen submitted a letter of resignation from the land use board effective immediately.

Chairman Theobald announced the order of the agenda will be revised to allow for adequate attendance of land use board members.

Public Participation

Chairman Theobald opened the meeting to the public. Seeing no one from the public wishing to come forward, Chairman Theobald closed the meeting to the public

Resolutions

LU# 3-19-4: Thomas Lambrinides & Debra Dolan - Block: 206, Lots: 4 & 5, Minor Subdivision

Motion: A motion was made to approve Resolution for LU # 2-19-2 by Mr. Williams and seconded by Mr. Spoerl.

ROLL CALL: WILLIAMS: Y; SPOERL: Y; MITCHELL: Y; MELE: Y; THEOLBALD:Y.

LU# 2-91-4: Mountain Creek Master Plan Update

Mr. Theobald explained that resolution for LU# 2-91-4 - Mountain Creek Master Plan Update is not complete and will be added to the next scheduled meeting.

Minutes

May 8, 2019 - Regular Meeting Minutes (Williams, Auberger, Spoerl, McPeek, Mitchell, Erichsen, Mele, Theobald)

Motion: A motion was made to approve Minutes of May 8, 2019 by Mr. Spoerl and seconded by Mr. Mele.

ROLL CALL: WILLIAMS: Y; SPOERL: Y; MITCHELL: Y; MELE: Y; THEOBALD: Y.
Motion passed.

Escrows, Board Fees and Bond Reductions

1. Board Fees
   1. Board Attorney: Glenn Kienz, Weiner Law Group LLP
      1. Land Use Board Business: Services through 4/10/19 ($660.00)
      2. Viviana Florea: LU# 2-19-2 - Services through 4/22/19 ($560.00)
      3. Thomas Lambrinides: LU# 3-19-4 - Services through 4/4/19 ($45.00)
      4. Walter Lenartowicz: LU# 1-19-1 - Services through 4/26/19 ($48.00)
      5. Theta 456 Associates: LU# 5-13-2 - Services through 4/10/19 ($48.00)
   2. Board Planner: Jessica Caldwell, J. Caldwell & Associates
      1. Land Use Board Business: ($0)
      2. Walter Lenartowicz: LU# 1-19-1 - Services through 4/26/19 ($120.00)
   3. Board Engineer: Cory Stoner, Harold E. Pellow & Associates
      1. Land Use Board Business: Services through ($0)
   4. Board Recording Secretary: Irene Mills ($75.00)

Motion: A motion was made to approve the board fees as listed by Mr. Mele and seconded by Mr. Spoerl.

All members voted in favor.
Motion passed.

Chairman Theobald stated that Mayor Shortway has stepped down from hearing the application LU#1-19-1 and board member Mr. Vizzini arrived to meeting at 7:12 p.m.

Public Hearings

LU# 1-19-1: Walter Lenartowicz - Block: 143.01, Lot: 14, - Use Variance to Permit Two Separate Residential Homes on a Single Parcel in the R-2 Zone

Mr. William Haggerty, attorney for applicant from firm of Dolan & Dolan, came forward with applicant Mr. Lenartowicz, 12 Butternut Drive, who was sworn in to provide testimony on reason for request of a use variance to permit two separate residential homes on his single parcel. Attorney Haggerty stated the application is for a use variance but noted that conditions on the site which include the main house with 3 bedrooms and the cottage with one bedroom will remain unchanged. He noted that records show that township permits were issued, and the 2008 township revaluation recognized the two structures. Attorney Haggerty explained his client is in process of refinancing, and the lender requested owner to gain township approval to allow two residential structures on a single lot. Attorney Haggerty distributed exhibits labeled, A-1 to A-15, to board members and board professionals.

Mr. Lenartowicz stated in 1971 he purchased the said property with the main house. He then contracted a professional to construct an accessory structure for his electrical office and shop for which he relied all permits would be filed. Mr. Lenartowicz testified that 15 years ago, the office/shop was converted to a cottage for residential use and heating system and kitchen range were added. He explained both houses are connected to one septic system which was updated 3 years ago with the required permits.

Attorney Haggerty offered Exhibit A-5, copy of township 2008 assessment records showing two residential buildings, one with 3 bedrooms and one with 1 bedroom. He offered Exhibit A-9, copy of septic records of parcel showing the 2015 septic system for a 3 bedroom structure connected to a 1 bedroom structure. Exhibit A-11, 2016 permit for a septic alteration and Exhibit A-14, copy of septic as-built plan for alteration were presented as evidence of use. Mr. Lenartowicz stated that Vernon Township inspected the new HVAC system and air conditioning unit with no concern over current use and the assessor assesses the cottage building as a separate unit. Attorney Haggerty restated the application requests the board to recognize the historic use of the property and allow use as it has been used for many years. He added there is no intention to change the pattern of use, no intention to expand the cottage and no intention to change the main house. Mr. Lenartowicz added he lives in the cottage structure from May through October only and there is a separate driveway and parking area.

Ms. Mitchell requested if applicant has a permit to change office to residence. Mr. Lenartowicz stated he only has permits for electrical, building and mechanical improvements as noted in Exhibit A-7. Ms. Mitchell explained the assessment records what is present and does not review if permits were obtained and further questioned if a fire certificate was obtained for the rental property. Mr. Lenartowicz stated the accessory structure was originally designed to be a 1 bedroom residence when built with a full bathroom but was initially used as an office. Attorney Haggerty stated the continued use is reflected in tax, building, septic, and assessment records and request is for 1 bedroom usage to be allowed to continue as established usage.

Attorney Tombalakian stated the applicant never obtained a site plan approval for the secondary building so title shows only one building and request is to make sure town approves the use of the second structure.

Ms. Caldwell questioned if accessory structure was built prior to 2004 as it is located in the Highlands Preservation Area and noted any new development must apply for exemption per rules. She questioned if there are any lots with similar circumstances in the area which none were found.

Mr. Williams stated the parcel is not fully approved for two residences and cannot be grandfathered and questioned what code must be referred to make this change. He added the property contains the Pochuck Creek, a state recognized stream which may be problematic with setback requirements and opined approval may set a precedence. Mr. Lenartowicz stated septic was fully engineered, inspected and approved by the Sussex County Health Department.

Attorney Tombalakian explained the standard is that every land use application is unique, and no precedent will be made and offered that both structures share common septic and well which prevents further subdivision. Attorney Haggerty added that deed restrictions could be added to approval to prevent any new development or subdivision. Ms. Caldwell noted an exemption is not required because there is no new development and subdivisions are not permitted in the Highlands Preservation Area.

Ms. Caldwell stated per her April 26, 2019 report, applicant is seeking a D-1 variance to continue the use of a second single residential structure not permitted in the R-2 zone. Applicant must show if site is suitable for use and reason for why use should be granted while showing that such variance can be granted without substantial detriment to the public good or the master plan.

Attorney Haggerty stated reason for application is basis of sustainability, the site has existed without adverse effects, area is heavily wooded and not visible to neighbors, and use is modest at one bedroom with no proposed expansion.

Mr. Williams questioned if the board moved on the application, could restrictions be stipulated that site may not be expanded. Ms. Mitchell questioned what would stop others seeking relief for two residences on a single site. Attorney Tombalakian explained if owner knowingly did it in defiance of zoning, the board would not grant relief but per testimony heard, the applicant’s contractor who did not get approvals was without deviance. Mr. Williams added it is the owner’s responsibility that improvements are lawfully done. Attorney Haggerty explained original intention 40 years ago was to build a residence with a full bathroom.

Mr. Spoerl questioned how approval for three accessory structures were approved as only two are allowed in the zone. Mr. Lenartowicz stated the three structures include two wood sheds and the small cottage which are all installed on concrete slabs and testified he does not remember if intention of residence was told to township officials. Attorney Tombalakian stated that since applicant would like to maintain all structures, a request for any variances needed per the zoning ordinance can be granted. Attorney Haggerty stated that any additional variances are covered under the legal notice advertised.

Chairman Theobald opened the application to the public.

Evelyn Stone, 14 Butternut Drive, was sworn in and testified she lived at this address prior to Mr. Lenartowicz and expressed her objection to approval of the application. Ms. Stone stated improvements were done illegally on his site without permits including reconfiguration of a brook on property which caused extensive damage during Hurricane Irene. Ms. Stone further objected to how many vehicles are parked at the main house by the renters which is hazardous because of the dangerous curve of the roadway.

Michele Van Tassel, 16 Butternut, was sworn in and testified she has lived at this property her entire life and expressed concern about the parking issues, decreased home values, possibility of subdivision or precedent set by allowing these improvements without the necessary permits. She opined that previous wife of Mr. Lenartowicz would never have intended the structure as a residence. Ms. Caldwell and Attorney Haggerty explained that a condition in the resolution and/or a deed restriction can be stipulated in the board approval to not allow future improvement or subdivision.

Ann Pfaff, 8 Butternut Drive, was sworn in and testified as an owner of company who installs air conditioners, that homeowners are liable to obtain permits and inspections for work done in New Jersey. Ms. Pfaff further added that damage to the brook directly caused the road damage during the hurricane. She added a letter from the NJDEP required Mr. Lenartowicz to have the dam in the brook inspected by a licensed engineer and the state which was not done due to litigation filed by neighboring homeowners. Ms. Pfaff stated the brook was plugged up causing a dam to form causing the hurricane damage which the township paid to fix. She testified as a Realtor, township records received have the cottage listed as a carriage house and per the construction official the structure is grandfathered as there are no records prior to 2006. Ms. Pfaff opined that multiple tenants are residing in the main house without proper registrations and expressed concern that necessary approvals were never obtained.

Seeing no one further wishing to come forward, application was closed to the public.

Attorney Haggerty stated that the homeowner was vigilant in relying on contractor to obtain the required permits and noted that the structures that are present today will remain causing no further impact with deed restriction as testified previously. Ms. Mitchell explained the board needs to be mindful of the neighborhood and fair to all residents in their decision and added the assessor provides value of the structures but does not check if they were built legally. Mr. Vizzini questioned if any permits for the structures exist. Attorney Haggerty stated he submitted an OPRA request for all records and only those after 1980 were received and provided to the board as exhibits.

Mr. Williams questioned applicant how the structure was built and with what amenities. Attorney Haggerty stated the structure is insulated with the office on second floor and shop on bottom with a full bathroom, refrigerator and 2 car garage doors. Mr. Spoerl questioned why application stated it is a one-story structure which was explained to be a one-story with a mansard roof and concrete block walls. Mr. Vizzini questioned why applicant does not have a licensed planner to testify for the use variance which Attorney Tombalakian explained is not required by law but may help credibility for proof.

Chairman Theobald stated the history of three board decisions regarding buildings without permits whose applicant came to the board to request permission and noted that every application stands on its own merit and no precedent will be set.

Attorney Tombalakian stated that applicant is seeking a use variance to provide permission to allow a former accessory structure to be used as a separate residence with one bedroom apart from the main house with 3 bedrooms on a single lot which is a permanent situation with land. Board attorney and members questioned if applicant would agree to stipulation in approval with life rights but if sold, structure would revert to a garage. Attorney Haggerty stated that reason for application is to satisfy financing requirements which may not allow that stipulation. Attorney Haggerty asked the board to carry application to further investigate what options are available. Attorney Tombalakian and board members agreed to carry LU# 1-19-1 to the June 26, 2019 meeting at 7:00 p.m., with no further notice necessary. Attorney Haggerty provided board Exhibits A-1 through A-15 inclusive marked into evidence for the permanent file.

Adjournment

There being no further items of business to be conducted on the agenda, a motion was made by Mr. Spoerl and was seconded by Mr. Williams. All members were in favor.

Meeting was adjourned at 8:38 p.m.

Respectfully Submitted
Irene Mills
Recording Secretary