Township of Mahwah

Board of Adjustment Meeting Minutes

January 2, 2013

TOWNSHIP OF MAHWAH

BOARD OF ADJUSTMENT

MINUTES

JANUARY 2, 2013

The combined public/work session meeting of the Board of Adjustment held at the Municipal Building, 475 Corporate Drive, Mahwah, NJ, beginning at 8:05 pm was called to order by

Mr. Rabolli, Chairman, with the reading of the opening statement followed by the flag salute.

These minutes are a synopsis of the meeting. A verbatim audio tape recording is on file with the Board Secretary at the Board of Adjustment Office, 475 Corporate Drive, Mahwah, NJ. Copies of the tapes may be purchased for a fee.

PRESENT: Mr. Rabolli Mr. Kezmarsky

Mr. DeSilva Mr. Larson

Mr. Dator Mr. Royle

Mr. Whiteman

Mr. Mike Kelly, PE

ATTORNEY: Mr. Ben R. Cascio, Esq.

I. APPROVAL OF BILLS:

None to present.

II. APPROVAL OF MINUTES:

None to present.

III: MEMORIALIZING RESOLUTIONS:

None to present.

IV. OPEN TO THE PUBLIC:

Mr. Rabolli opened the meeting to the Public for general questions or statements. None were received.

V. PUBLIC HEARINGS:

A. DKT.#1269-08A – S. PHILIP FILIPPONE

MIDVALE MOUNTAIN ROAD, BLOCK 1, LOT 154

This is a continuation of the Public Hearing from December 5, 2012. Mr. Rabolli addressed the attorneys noting the number of Board of Adjustment members. There are two open positions. It was noted there are seven current members eligible to vote on this application. Mr. Rabolli addressed Mr. Cummins and requested he submit the appropriate form to the Fire Department to obtain comments regarding this application. Mr. Rabolli continued noting the bulk issues for the lot in question and referred to Section 24-5.1 of the Mahwah Code and read it into the record (C Variance). He also noted the Applicant does not have access to a public road, which comes under MLUL Section 40:55d, 35 and 36. He questioned there being no reference to public detriment and asked this be looked into.

Mr. Cummins questioned why these issues are being addressed. He would just like a resolution into whether this property is buildable, per Judge Contillo. Mr. Rabolli indicated a lot of time was spent at prior hearings on issues that were DEP issues. At this hearing, DEP issues will not be addressed. Mr. Rabolli will keep the testimony for this hearing to Mahwah Board of Adjustment matters only.

Introductions by all parties were made as follows:

Attorneys present:

Mr. Dennis J. Cummins, Attorney for the Applicant, Mr. S. Philip Filippone

Mr. Robert Zisgen, Attorney for the Objector, Mr. James Venusti

Mr. Zisgen approached and called Ms. Lisa Mahle-Greco of Johnson Soils Company in Glen Rock, NJ. Ms. Mahle-Greco was sworn in by Mr. Rabolli. Ms. Mahle-Greco stated her education, background and expertise and was presented as an expert in civil engineering and as a geotechnical expert. After being questioned by Mr. Cummins and

Mr. Rabolli, Mr. Dator moved to accept Ms. Mahle-Greco as an expert. Mr. Whiteman seconded the motion and all voted in favor.

Mr. Zisgen introduced a report prepared by Ms. Mahle-Greco, which was marked as Exhibit OV-8. Ms. Mahle-Greco described the report in detail. Her investigation included digging five test pits, which were done at each of the five proposed chamber locations between stations 0+0 to 4+75. She explained in depth how the data for each test pit was obtained and noted her conclusions. Given the rock and soil conditions that Ms. Mahle-Greco testified to, it is her opinion the test pits will not work as designed as there is no soil for the water to seep into. Mr. Zisgen concluded his questioning.

Mr. Kelly questioned Ms. Mahle-Greco’s certainty the obstruction at the end of the test pits is bedrock or rock outcropping. Could the obstruction just be a boulder? Ms. Mahle-Greco replied if there was a boulder, it would probably be the size of a car. Mr. Rabolli asked if the location of the pits could be moved. Ms. Mahle-Greco does not believe it would matter as the property contains a lot of outcropping. Mr. Zisgen referred to the Applicant’s site plan noting the depiction of the proposed chambers. Given the soil conditions Ms. Mahle-Greco found, she does not believe the proposed chambers will work.

Mr. Kelly stated that typically for an application involving drainage, whether it be for a single-family home or commercial development, perc tests are required to be performed before improvements are constructed. If the original plan does not work, the Applicant’s engineer would go back to the town with an alternate drainage design. Mr. Kelly mentioned that drainage is typically addressed during construction. Referring to the testimony given by Ms. Mahle-Greco, this issue may need to be revisited. He also gave several scenarios and how the drainage design could be presented and changed, if necessary, during construction. Upon questioning by Mr. DeSilva, Mr. Kelly noted he has never run into a situation where the original drainage design could not be modified to make it viable.

At this point, Mr. Zisgen moved to have Exhibit OV-8 admitted into evidence.

Mr. Cummins objected noting he would like to review it. Mr. Rabolli noted the evidentiary foundation has been made and the report can be moved into evidence. Mr. Cummins indicated he would like Ms. Mahle-Greco to attend a future hearing so he can review her report and be able to question her.

Mr. Kelly was sworn in by Mr. Rabolli and it was noted all prior statements were included as his sworn statements. Mr. Cummins questioned Mr. Kelly on runoff. Mr. Kelly noted there is existing runoff in the area; however, there cannot be any increase in runoff off site. It is the Applicant’s responsibility to determine the existing runoff rate. Mr. Cummins proceeded and questioned Mr. Kelly about blasting. Mr. Kelly indicated blasting is permitted in Mahwah according to state standards.

Mr. Cummins questioned performing test pits on Mr. Venusti’s property and obtaining consent to do so. Mr. Cummins noted the five-foot easement and having the opportunity to counter Ms. Mahle-Greco’s testimony. There was a discussion on the easement and what is permitted. Mr. Zisgen suggested test pits also be completed on Mr. Filippone’s property. Mr. Rabolli does not agree and stated Mr. Filippone has 3+ acres to be able to engineer a drainage solution. Mr. Rabolli addressed Mr. Cummins and Mr. Zisgen stating the easement language needs to be reviewed. Mr. Zisgen will review the terms of the easement. He will discuss allowing the Applicant access to the property with his client.

Upon questioning by Mr. Zisgen, Ms. Mahle-Greco indicated she used Mr. Doolittle’s grade sheet, previously marked as Exhibit OV-6, to determine, in part, where to dig the test pit holes. Mr. DeSilva referred to the grade sheet and questioned the calculations. To clarify, Mr. Zisgen noted Mr. Doolittle identified where the holes were to be dug, and

Ms. Mahle-Greco actually dug the holes with the assistance of laborers.

Mr. Rabolli addressed Mr. Zisgen and Ms. Mahle-Greco indicating she will need to return at a future hearing in order that Mr. Cummins can first review her report and then question her appropriately.

There were no further Board or Public questions for Ms. Mahle-Greco.

Mr. Zisgen recalled Mr. Jeffrey Doolittle. Mr. Doolittle was previously sworn in and remains under Oath. Mr. Doolittle was present for Ms. Mahle-Greco’s testimony.

Mr. Doolittle stated the purpose of the chambers is to satisfy the NJ storm water management standards. There are three different criteria that the chambers need to be designed to:

1) Control runoff rate

2) Rate of recharge into ground

3) Water quality

Mr. Doolittle described each of the three criteria. In Mr. Doolittle’s opinion, if chambers are constructed in the proposed locations, he does not believe they will work as intended. Mr. Whiteman questioned the existing runoff. He asked how much is the difference between the runoff over the existing granite and the proposed black top. Mr. Doolittle noted it is the Applicant’s responsibility to show these calculations. There was a short discussion regarding the sand, gravel, silt and soil on the site. Mr. Cummins objected to

Mr. Doolittle’s testimony without a prepared report. Mr. Rabolli noted the testimony given at this evening’s hearing was a follow-on to Ms. Mahle-Greco’s testimony. Mr. Rabolli addressed Mr. Cummins noting if he would like to question Mr. Doolittle, he may do so after a break in the proceedings.

Mr. Rabolli called a recess at 9:37 pm.

The meeting reconvened at 9:47 pm.

Mr. Rabolli addressed both attorneys regarding the ‘hardship’ argument and noted two lines of cases where (1) one inherits a hardship and was not the cause of it, and (2) one buys into the hardship. Mr. Rabolli would like this addressed in the future.

There were no questions from the Board or the Public for Mr. Doolittle. Mr. Cummins questioned Mr. Doolittle regarding different runoff scenarios. Mr. Doolittle described the runoff of the natural areas. Mr. Cummins and Mr. Zisgen began arguing regarding the path of the runoff. Mr. Cummins continued and a discussion ensued regarding soil, blasting, drainage, vegetation, trees and disturbance. After several questions, Mr. Rabolli interjected remarking some of the questions were beyond the scope of Mr. Doolittle’s testimony. There were no further questions for Mr. Doolittle.

Mr. Zisgen called Mr. Douglas Chabrak of Amy S. Greene Environmental Consultants. Mr. Chabrak was sworn in by Mr. Rabolli. Mr. Chabrak stated his education, background and expertise and was presented as an expert in environmental science. A report prepared by Mr. Chabrak was distributed and marked as Exhibit OV-9. Mr. Chabrak was accepted as an expert. Mr. Cummins reserved the right to have this witness attend a future hearing so he can cross examine his testimony properly.

Mr. Zisgen distributed two documents that were marked as follows:

Exhibit OV-10 Municipal Code 22-5.3 Environmental Impact Statement excerpt

Exhibit OV-11 Municipal Code 24-6.1e Conservation Zone District

Mr. Zisgen questioned Mr. Chabrak in regards to the Applicant’s prepared and revised EIS. He noted the sources and documents he used for his evaluation. Mr. Chabrak noted inadequacies within the revised EIS, such as there being no reference to the Fox Brook. Mr. Cummins objected, more than once, to references to the Fox Brook stating it is a DEP issue; however, Mr. Zisgen continued noting it is also a storm water management issue. Mr. Rabolli noted the objections and will allow testimony regarding the Fox Brook as it relates to Mahwah. Both codes depicted in Exhibits OV-10 and OV-11 were discussed. Mr. Zisgen read the first paragraph of Code 24-6.1e into the record. It is Mr. Chabrak’s opinion that the revised EIS does not adequately demonstrate compliance with this code.

Mr. Chabrak noted several other omissions from the revised EIS such as:

-  In regards to wildlife and protected species, the revised EIS does not provide a review of federally listed species

-  Aesthetic values were not addressed adequately

-  Subsection g within Exhibit OV-10 was not covered within the revised EIS

There were no questions from the Board or the Public for Mr. Chabrak. Mr. Cummins will cross examine Mr. Chabrak at a future date.

The Board’s future agenda was discussed. Mr. Zisgen’s plan is to have Ms. Mahle-Greco and Mr. Chabrak return and then go forward with Mr. Kauker (planner), Mr. Venusti and a firematic expert. Mr. Rabolli asked Mr. Zisgen to have Mr. Kauker’s report submitted to the Board with a copy to Mr. Cummins ten days prior to the next meeting, although it is not required. Mr. Rabolli also asked that the decision on granting or not granting the Applicant access to the Venusti property for test pits be reported to Mr. Cascio within one week.

Mr. Rabolli made a public announcement this hearing will be carried to March 6, 2013 with March 20, 2013 also being blocked to hear this docket. No further notice will be required, and Mr. Cummins consented to the extension of time.

Mr. Rabolli noted Mr. Cummins needs to have Mr. Dillon prepare a report and be available to present and be cross examined at a future date.

A motion was made by Mr. Whiteman, seconded by Mr. Kezmarsky to close the Public Hearing of the meeting and adjourn the meeting. All voted in favor.

VI. WORK SESSION:

There were no hearings to discuss during the Work Session portion of the meeting.

VII. ADJOURNMENT:

The meeting adjourned at 10:50 pm on a motion by Mr. Whiteman, seconded by

Mr. Kezmarsky.

These minutes were prepared by Geri Entrup, Zoning Board Recording Secretary.

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