River Edge Land Use Board

BOROUGH OF RIVER EDGE LAND USE BOARD MEETING MINUTES ZOOM MEETING September 22, 2021 Zoom - Meeting called order at 7:30 Chairman Caslin made the required announcement concerning the Executive Orders 103 and 104 Open Public Meetings Act and N.J.A.C. 5-39-1.1 to 1.7: Adequate notice of this meeting has been displayed on both the bulletin board at Borough Hall, and published in the Record and Ridgewood News for the people who are interested in this meeting. The meeting is being recorded electronically through ZOOM. To join the hearing via smart phone, computer or tablet. log in information and a link to the meeting will also be posted on the Borough web site at https://www.riveredgenj.org/. Chairman Caslin advises the Board the the application for Bretton, 17 Elizabeth Street, Block 1407, Lot 2 that application will not be hear this evening it will be heard October 22, 2021. Ms. Stinley advises that the application for Perkins, 311 Kinderkamack Road, Block 1004, Lot 26 will also be carried to October 13, 2021. Roll call: Mayor Papaleo – Here Chairman Caslin - Here Mr. Mehrman – Here James Arakelian - Excused Lou Grasso – Excused Ryan Gibbons - Here Michael Krey – Here Eileen Boland – Here Dario Chinigo – Here Gary Esposito – Here Bruce Feffer – Here Both alternates will be seated to vote this evening. ALSO PRESENT: Marina Stinley, Esq., Tom Behrens and Robert Costa Approval of Minutes – None available Memorializations - None Gloria Juliana, 3 June Court, Block 1004, Lot 22. Resolution granting variances for maximum fence height. Motion to approve the Resolution - Mr. Gibbons; Second – Mr. Esposito. Mr. Mehrman cannot vote because he voted No at the last meeting. Roll call – Mayor Papaleo – yes; Chairman Caslin – Ms. Boland – yes; Mr. Krey- yes; Councilman Chinigo; yes; Mr. Gibbons – yes; Mr. Feffer – yes; Mr. Esposito – yes. Motion passes. Nagarjan Subramanian – 927 Magnolia Avenue, Block 102 Lot 4. Motion to approve Resolution granting variances for maximum lot coverage and maximum improved lot coverage. Motion to approve the Resolution – So made – Mr. Gibbons; Second – Mr. Mehrman. Roll Call - Mayor Papaleo – yes; Chairman Caslin – Ms. Boland – yes; Mr. Mehrman – yes; Mr. Krey- yes; Councilman Chinigo; yes; Mr. Gibbons – yes; Mr. Feffer – yes; Mr. Esposito – yes. Motion passes. Completeness Review No application for completion review. New Businesses None Old Business Narmadan Kumarasay – 364 Valley Road, Block 905, Lot 27 – Application to install deck additions, shed, walkway and above ground pool seeking lot coverage variances. The applicants were sworn in at the August 11, 2021 and are still under oath for this meeting. The Board received an additional submission from the applicant modifying their site plan. Mr. Behrens has reviewed the subsequent submission made by the applicants under cover of September 6, 2021. He advises the Board that himself, Ms. Stinley and Mr. Costa conferred as to whether an above ground pool should be considered temporary or not and he states there are a few definitions that can guide the Board in making that determination. Number one, the Borough's definition of improved lot coverage which is one of the variances at hand. That definition is the percentage of lot area which is improved with principal and accessory buildings, structures and uses including but not limited to, driveways, parking areas, garages and other man made improvements. He points out the importance of knowing that pools are specifically exempted as being considered accessory buildings and uses. The term man made improvements is not clear as to whether something is temporary or not. He states that there are no further definitions in the Borough ordinance that provide any further guidance. He provides the Board with series of planning definitions provided by Harvey Moskowitz that are generally referenced in the planning profession and have been accepted by Boards and in case law. Moskowitz does have a definition for temporary structures which is, a structure that is erected without any foundation or footings and is removed when the designated time period, activity or use for which the temporary structure was erected has ceased. -2- Mr. Behrens also came across another definition which is, a temporary structure is one that is not fixed and does not have a foundation. Some definitions do have a time frame associated with it and others just speak to as whether or not it has a fix foundation or is essentially attached to the land. The Borough's ordinance which dates back to the 1980's did not contemplate some of the new pool products that are out today. There are all types of temporary pools today. There is a question as to where you draw the line as to what is temporary or not. (Mr. Behrens is freezing/breaking up). Mr. Behrens states that based on the definitions and the Borough's past policy he believes an above ground pool can be deemed temporary. He believes the Board should take a firm stance one way or another as to whether they are temporary moving forward. Once that decision is made it should be specifically reflected in the code. Mr. Gibbons brings up the point that since the pandemic many people have blow up/portable pools in their yards. He feels the Board would have to be very specific going forward as to aluminum side, vinyl side and how does the Board create that distinction. Personally he believes an above ground pool is temporary and the requests for pools is happening a lot more. He believes it would be difficult to monitor if the Borough were to say any above ground pool would be impervious coverage. Mr. Krey's concern is what is the assessment of what happens in large rain events. Is the Board to assume that the pool is capturing that water or is it going out to the rest of the surface. What does the Board anticipate actually happens is a pool a reservoir for rain water when there is a large rain event. Mr. Costa explains that whether it is temporary or not the structure is going to be impervious. So during soil movement the applicants have to capture whatever that area is for storm water management. Whether it counts as impervious or pervious, its impervious no matter what whether its temporary or permanent. So even if the Board states that it doesn't count towards the lot coverage it still counts towards storm water management. Every square foot you put in you have to hold two gallons of water. Mr. Behrens confirms with Mr. Costa that if the Board decides that above ground pools are temporary they still have to meet the storm water drainage requirements, they still have to meet the setbacks and they still need a permit. Mr. Costa agrees with Mr. Krey if the pool is there for fifteen years how temporary is it. Again, when you go back to the definitions, it really comes back to the Board as to whether or not they want to allow above ground pools and then does this open the flood gates for those who wanted an in ground pool decide to put in an above ground pool so that's how they get round the regulations, or it should go back to the Mayor and Council and the Mayor and Council should decide whether they want to change the ordinance and the definition and then send it back to the Board. Mr. Krey asks the applicants regarding the lot coverage calculation if the three steps off of the back of the deck is included in the calculations. The applicant said they will adjust the steps and do what is necessary to count them into the calculations. Ms. Boland asks if building permits are required for above ground pools. Mr. Behrens advises yes. Mr, Behrens and Ms. Boland go back and forth about the different types of pools. He further explains that the portable pools are put up at the beginning of the swimming season and then taken down around Labor Day. Ms. Boland advises the Board that she wants to go on record noting that she watched the Youtube video of August 11, 2021 and she is submitting her certification. Mr. Mehrman asks Mr. Costa to confirm that from a storm water management prospective a temporary above ground pool would still require some sort of sub surface disposal of water, which would apply to this application, Mr. Costa confirms same. ·Comments from the Board - Mr. Feffer feels the law seems ambiguous and under those circumstances he would be in favor of the Mayor & Council taking this issue up and coming up with a clearer guideline in the rules so the Board can move forward in debating whether something -3- ·is temporary or not. He feels that since it is ambiguous he would not want to penalize the applicant because the rule can be argued different ways by different people. He feels overflow issues are very important and mitigation steps should be taken to deal with overflow issues. Ms. Boland feels that everything on the property should be included as coverage. Councilman Chinigo believes the ambiguity built into the ordinance is to give the Land Use Board an opportunity to take cases case by case. He believes the Land Use Board has to reach an opinion on this. He believes in this case it would be okay to say that in this case given the size of the property and the deck that was built onto the pool and it goes over the 40% threshold its okay for the Board to say this is a permanent structure and it should count towards the numbers. The applicants address the Board regarding the lot coverage. Mr. Behrens advises the Board that he advised the applicants at the time of their application that he was operating under the assumption that above ground pools were temporary and the Building Department gave them a permit to install the pool. So the applicants moved forward in good faith in the direction they were given. Ms. Stinley advises the Board that every decision the Board makes on each individual application does not set precedence for any other property in the Borough. Ms. Stinley further advises that the Board can make a decision saying the applicant cam have “X” amount of coverage and not include the pool in the actual lot coverage calculation because that is the advice that the zoning officer gave but the applicant should show all of the other requirements to have the variance granted with any mitigation efforts that they will putting in and then the Board can make a decision at a later date about how to interpret this particular section of the ordinance that is creating problems. The applicants continue explaining the revised proposal to the Board. The pool is already installed. They have an existing small deck. They want to expand the deck to 15 x 22 (294 square feet) including the bump out with one step leading up to a pool deck which would allow for easier access to the pool, adding 66 square feet and then adding the shed for 80 square feet. The applicants eliminated the walkway, reduced the size of the shed and they significantly reduced the size of the deck. The applicants showed the Board an aerial view of the surrounding neighborhood showing the Board that several neighbors have above ground pools with decks. Mr. Behrens interjects that the original coverage without the pool was 48.5% and as the applicant advised they removed the sidewalk and adjusted the size of the deck and the shed. The property as it stands excluding the pool is at 34.6%. If you add the larger portion of the deck at 294 square feet, that's an additional 3.6%. The smaller portion of the deck is approximately 66 square feet but that gets canceled out because there is an existing landing and steps and they are about 64 square feet so that should not be factored in. There is the shed that is 80 square feet that's about 1%. So taking the existing 34.6, add the deck 3.6% and 1% for the shed you arrive at 39.2%. If you include the pool it's 42%. (The lot size is 8,160.6 square feet) Mr. Behrens confirms with the applicants that they are going to comply with the storm water requirements in terms of installing a seepage pit as may be required by the Borough Engineer. The applicants respond that they will install whatever is required. Mayor Papaleo addresses the Board regarding storms that have flooded the town repeatedly. Impervious coverage is a serious issue in the Borough. He acknowledges that the applicants, due to vagueness regarding above ground pools they were granted a permit and the pool already exists. He points out that the ordinance is for 35%, so the Board considers whether they should go above that and the more and more the Borough has weather conditions they are having they are realizing they have to be more protective of permeative coverage in the Borough. That being said the Mayor feels -4 - - he can go another 2% because that would be 120% of what is permitted, 35% x 1.2 is 42%. He does not want to go past that. The plans on this application show that without the steps it shows 42.8% and with the steps it goes up to 40.43.5%. If the applicants are willing to modify down to 42% , given the special circumstances, given the advice they were given and the permit they were granted as an individual of the Land Use Board and not the Mayor, he would be able to vote yes. The applicants are amenable to the Mayor Papaleo's request. Mr. Gibbons is on Board with the 42% because of the special circumstances of this application. Mr. Esposito concurs. Mr. Mehrman concurs. He agrees that the above ground pool definition has to be codified. Chairman Caslin concurs as well. Chairman Chinigo feels that within the past six months there have been several applicants wherein they wanted the Board to move past the 40% threshold and they were always given a hard no by the Board. He does not agree with the 42% on this application. He will stay with the 40%. Motion to open to the public. So Made – Mr. Mehrman; Second – Mr. Gibbons. No attendees. Motion to close to the public. So made – Mr. Mehrman; Second – Mr. Gibbons. Motion on the application - So moved by Mr. Feffer approving the application subject to the agreement of the applicants to comply with all drainage mitigation requirements as well as to set a maximum impervious coverage of more than 42% on the property. (Ms. Stinley requests clarification as to there being a variance for improved lot coverage and also lot coverage) Mr. Behrens concurs that Ms. Stinley is correct. The Mayor would like the motion to include that the pool is part of the 42%, which also includes the steps that are not yet included in the drawing or documents presented. Mr. Mehrman also suggests that the motion include a statement “under the current circumstances” which would cover the situation with the Building Department. Mr. Feffer would accept that as amendment to the Motion, Second - Mayor Papaleo. Ms Stinley wants to confirm the lot coverage percentag. Mr. Behrens advises it is approximately 31.5%, the proposal was originally 37% and it has been reduced to 31.5% lot coverage. So the applicants would then comply with 42% improved lot coverage including the pool and the steps and then 31.5% lot coverage. (Applicants agreed). So the Motion is made by Mr. Feffer as amended with the additional language and a second by Mayor Papaleo. Ms. Stinley recaps the Motion as follows: Under the current conditions the Board approves this application subject to Borough Engineer review for storm water management with an improved lot coverage up to 42% with the above ground pool included with the steps and a lot coverage of 31.5%. Motion was made by Mr. Feffer, seconded by Mayor Papaleo. Roll Call - Mayor Papaleo – yes; Chairman Caslin – Ms. Boland – yes; Mr. Mehrman – yes; Mr. Krey- yes; Councilman Chinigo; No; Mr. Gibbons – yes; Mr. Feffer – yes; Mr. Esposito – yes. Motion passes. Mayor Papleo would like to tie up the conversation regarding above ground pools. It is his opinion that an above ground pool would count as coverage and that above ground pools are not temporary. The Mayor asked if the Board can make a position on that without going before the Council. Mr. Behrens advised that the Land Use Board functioning as a Zoning Board has the ability to interpret the ordinance. The application that was before the Board was not necessarily an interpretation application but he believes the Board can provide guidance. Mr. Mehrman suggests regarding above ground pools that Ms. Stinley and Mr. Behrens draft something that the Planning Board can consider a definition that they can vote on and thereby codifying it for at least the Board acting especially as a ZBA. Mr. Costa suggests that Ms. Stinley send a letter to t he Council and the Council adds that to the definition of the above ground pools as part of it. Ms. Stinley advises that, that is something she does frequently for other towns, draft changes that are recommended by the Planning Board and then present them to the Council. Mr. Caslin thinks for the benefit of the Board it would be -5- helpful to see what the current language says and then have a meaningful discussion about what type of changes should be made to address the matter going forward. A definition is needed regarding what a long term above ground pool is and a short term above ground pool is. The Board discusses possible scenarios for a bit. Mr. Caslin advises that Ms. Stinley circulate the current language as it reads for the Board to review and then they can take steps from there. Mr. Gibbons suggested seeing what other towns do regarding this subject also to see what options are out there that my not have been considered by the Board. The Board discusses other issues that are coming up that need to be looked at during different work session meetings. Mr. Caslin advises that Board that Board Secretary Lou Grasso will not be in attendance for the next several meetings due to personal issues so he has resigned as Secretary to the Board but is still a Board member. He asks if anyone on the Board would be interested in stepping in as Secretary. Mr. Gibbons said he would take on the role. Mr. Mehrman makes a Motion to have Mr. Gibbons finish Mr. Grasso's term as Board Secretary, Second – Councilman Chinigo. Voice vote – all in favor of the Motion – aye – any opposed any abstained - There being none – Mr. Gibbons is the new Board Secretary. Motion to adjourn meeting Mr. Mehrman; Second – Mr. Gibbons. Meeting adjourned. -6-