River Edge Land Use Board

BOROUGH OF RIVER EDGE LAND USE BOARD MEETING MINUTES ZOOM MEETING December 22, 2021 Zoom - Meeting called order at 7:30 p.m. 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/. Roll call: Mayor Papaleo – Present Chairman Caslin - Present Mr. Mehrman – Present James Arakelian - Present Lou Grasso – Excused Ryan Gibbons - Present Michael Krey – Present Eileen Boland – Present Dario Chinigo – Present Gary Esposito – Present Bruce Feffer – Present ALSO PRESENT: Marina Stinely, Esq., Tom Behrens and Robert Costa Change in Agenda for the application Hernan Green 199 Bogert Road., Block 1207, Lot 30 – Retaining walls already built in violation of ordinances – variance required. Application was not heard – will be scheduled for later date to be determined. Mr. Cook is a resident of River Edge and joined in the meeting as public audience. He was asking for insight going forward as to the process going forward as this matter continues to be pushed out and he is probably the only recipient of detrimental effects due to the construction of these retaining walls. Ms. Stinely explained that it is being carried so the applicant can address all the concerns raised by the Borough Engineer. She explained that notice will be provided as to when the next meeting will be heard. It will be either February 9 or February 23, 2022. Ed Alter has Mr. Cooks contact information. Approval of Minutes – December 8, 2021 minutes Mr. Mehrman had a change under New Business (possible typographical error) last paragraph to be changed from “lighter approval” to read “higher approval”. Motion to approve minutes with minor change – So moved – Mr. Gibbons; Second – Mr. Mehrman. Mr. Esposito, Mr. Arakelian and Mr. Grasso are not eligible to vote on these minutes as they were not in attendance at said meeting. Motion approved. Memorializations Resolution for meeting schedule of 2022. Being no comment from the Board a motion is made to accept the Resolution as it stands. So made – Mr. Krey; Second Mr. Mehrman. Resolution is approved. Completeness Review No application for completeness review. New Businesses Hernan Green 199 Bogert Road., Block 1207, Lot 30 – Retaining walls already built in violation of ordinances – variance required. Carried to either February 9, 2022 or February 23, 2022. Old Business Olena Chumikova & Volodymyr – 322 Van Saun Court, Block 1107, Lot 34 - Install a patio and pool – Carried from November 10, 2021 meeting. Mr. Barrett appearing for the applicants. Mr. Barrett recapped that at their last appearance the application was carried pending Mr. Costa's review of the site and complaints made by the surrounding neighbors regarding drainage. Ms. Stinely request that Mr. Barrett provide another over view of the application as there was no recording for the November 10, 2021 meeting. Mr. Barrett states that clients signed a purchaser contract at the end of February of this year. Closing was scheduled for the end of April of beginning of May. Mid April his clients/applicants were advised that the kitchen was back ordered and they were forced to change the kitchen. Sometime in June builder applied for CO and was advised that the impervious coverage exceeded the permitted amount. He then substantially reduced the size of the driveway but was still 3.34% over the amount permitted by ordinance. The applicants’ lease was about to expire and they had nowhere to reside so they applied for a variance so they could move into the home under a temporary CO. The variance they would apply for would permit the patio as constructed which exceeded the ordinance by 3.34%. The applicants sent a letter to the Borough stating they would accept responsibility to apply for the variance and they closed title in April. The applicants also wanted to install a pool and walkway which brought the total coverage up to 44.7%. The applicants reviewed videos of several hearings wherein the Board continually stated that the maximum amount of coverage they would consider would be no more than 40%. As a result they instructed their engineer to revise their plan to reduce the width of the walkway from the driveway to the backyard and to eliminate the walkway around the pool, bringing the coverage to 39.9% for an increase over of approximately 1.56% over what currently exists. This would be an increase of approximately 170 square -2- feet. At the last meeting the applicants testified as did the engineer as to the steps taken get as close to conformity as possible taking into account that they started out at 38.34%. Several neighbors testified as to a drainage issue. It was decided Mr. Costa should go to the site to discuss the issue with the neighbors and inspect the site.  Mr. Costa addresses the Board. He met with adjacent neighbors, all the neighbors around the property except the neighbor to the left and the right. He walked the site with the neighbors and the applicants and at the end it was agreed upon to put in a cut off drain around the perimeter of the property and direct the storm water to the street to a pop up. Mr. Costa's office sent the engineer a detail of a cut off drain. The engineer prepared a plan and put the drain in detail on his plan. The only thing the engineer did that Mr. Costa doesn't feel should be approved is that there is a direct connection through the curb onto the street. What Mr, Costa suggested was a pop up which would be further back on the applicants’ yard just in case there is any ground water. In the event there is ground water Mr. Costa made it very clear that if the application is approved that the following should be in the Resolution – In the event there is ground water and this continues to flow then it needs to get hooked up into the municipal system, they would need a license agreement from the Mayor and Council not to impact any of the homeowners on that court. He believes all of that was agreed to by the various neighbors. The idea is to cut off any water that is coming off of the property, capture it, store it and then redirect it to the front of the house towards the street to the municipal system and away from the neighbors. Mr. Osterkorn and Ms. Chumikova were sworn in at the last meeting and they are still under oath for this meeting. Mr. Osterkorn concurs with what Mr. Costa said. He plans to construct 250 feet of curtain drain, 2' x 3' feet deep with stone around it with a 6 inch PVC directing out to Van Saun Court with a pop up drain. There is about 4 feet of pitch from the highest corner out towards Van Saun so there should be plenty of pitch for the water to be gathered and discharged. It will eliminate any ground water from the site or any run off from the site going onto the neighbors. Chairman Caslin asks the Board for their questions and/or comments. Mr. Feffer inquired as to the neighbors to the right and left of the applicant that were not at the site with Mr. Costa. He wanted to know if Mr. Costa communicated with them at all. Apparently those neighbors did not have issues and they never contacted the Borough with any issues. Ms. Boland points out that the applicants were aware there was an issue because it was flagged at the time of purchase so they were aware when the purchased it that there was an issue, so they weren't really starting from the 38 that was never approved by the Borough it was really from 35 and now the applicants are coming in for 39. Mr. Krey states that this is an over-sized lot. 43% more coverage already than a standard lot. He wants to know what the justification for the request for a variance, public good or a hardship. Mr. Barrett cited a case from 2011 Josephine Lang vs. Bd. Of Adjustment of the Borough of North Caldwell. The applicant had an above ground pool that existed and wanted to install an in ground pool, the Board granted the variance and the court upheld it stating, that the variance was warranted on the ground that replacing the above ground pool would advance safety and the aesthetic purposes of zoning. That is one of the tenants of the municipal land use law. If you can advance zoning considerations that is grounds for variance. He goes on to explain that in the Borough of River Edge one is permitted an above ground pool and that does not count towards the impervious coverage. So he explains that this applicant can install an above ground pool with the same dimensions that they are currently proposing and then perhaps apply to the Board and insofar as the Lang case the Board has justification in approving that. He recites the law to the Board as follows – to provide sufficient space and appropriate locations for a variety of agricultural, residential, recreational, -3- commercial industrial uses in open spaces both public and private according to the respective environmental requirements in order to meet the needs of all New Jersey residents. He acknowledges that this lot is larger than most in the Borough, however, 35% is 35%, stating that it is the same impact on the lot regardless of the size if it is a 5,000 square foot lot and you cover 35% of it, that leaves, 65% open. If you permit 40% you are leaving 60% open. The lot accommodates a larger home because it sits on a larger lot. Mr. Barrett points to the fact that the Board this year has granted five or six coverage variances but have repeatedly stated that they would not exceed the 40%. The applicants could have come in at 44%but it would never have been approved. They attempted to conform to the Board's holdings over the past few months, the applicants reduced it in size so that all that is being proposed is a swimming pool. Once the concern with the neighbors came up the applicants immediately embraced the idea to meet with the neighbors and Mr. Costa. Mr. Costa in turn gave the solution to Mr. Osterkorn who then put it on the plan and the applicants are willing to abide by that. Mr. Barrett wanted to clarify with Mr. Costa the fact that he addressed the current conditions on the neighboring properties and he wanted to know if those conditions were caused by this house or did they exist for other reasons. Mr. Costa confirms that they were caused by prior ownership. The conditions were corrected prior to the CO. The builder installed the drainage systems that are currently on site today. The builder ultimately got the CO and then sold the property to the applicants. Mr. Barrett points out that Mr. Costa stated that it may not correct the conditions which exist on the properties to the rear. Mr. Barrett wanted to know what those conditions were. Mr. Costa states that there is a high water table, roots that are very close to the surface, there is no question that there is ponding in the backyard. The adjacent neighbor put a curb up io create almost a damming affect. He believes the design as presented tonight will help the situation that now exists and will not make it any worse. So Mr. Barrett tells Mr. Krey that these improvements will benefit the neighborhood. So that being one of the criteria, will the grant of the variance result in a detriment and in this application they are putting in the additional drainage which is better for the community. Mr. Krey again asked for clarification and Mr. Barrett stated that he was looking for reliance on the law as to how the Board can grant approval and Mr. Barrett pointed out that the court upheld a variance that was granted for that purpose on the grounds that it would advance safety and aesthetic purposes of zoning. Mr. Krey did not agree with the argument. The Mayor asks Mr Barrett if the argument he is making is that the public good is the added drainage. Mr. Barrett advises that yes in part it is. His other argument is that purposes of zoning is to permit recreational uses in an appropriate location and this is an appropriate location. The Mayor's second question asks if there is any hardship. Mr. Barrett advises that under the law there is no hardship nor was there any hardships in any of the other applications of this type that the Board has heard this year with the same issue. Councilman Chinigo agrees with the Mayor and Mr. Krey. Mr. Gibbons states that what the applicants are putting in can be put in without putting in a pool. Another comment he has is that yes the Board has been inclined to allow 40% but that is not the new rule and he doesn't want it to be known that anyone who comes before the Board and asks for 40% is going to get it.. Every application is looked at differently, every lot is different and every situation is different. Mr. Gibbons also wants the Board to keep in that there is also a patio involved here which is over-sized at. Mr. Behrens joins in with the following numbers - the 4.9% that the applicants are over by that is the increase above the 35% to 39.9% is 527 square feet that they are over. The patio itself including the paver landing and the one step is approximately 20 x 28 feet that's a total of 560 feet and the body of the pool measuring 12 x 25 is 306 square feet. Mr. Mehrman has a clarification, a question and a concern, He asks Mr Costa to clarify that the pop up remains but the piping from that pop up be removed. Mr. Costa confirms that, that is correct. Mr. Mehrman continues regarding two sets of existing chambers. He wants to know if the three feet depth of the french drain will be sufficient to cut of the water horizontally from the pit. Mr. Costa explains how it works. Mr. Costa states that there are five pits (740's). Mr. Mehrman's -4- concern is if the application is approved what is to prevent creep which means somewhere down the line someone comes along and adds a patio around the pool or a walkway around the pool. Mr. Mehrman wants to know if something can be put into the Resolution to bind this property to prevent that in the future. Ms. Stinely advises that in the Resolutions they always include standard language that states if things are constructed outside of the scope of the Resolution then the applicant has to come back before the Board and when the applicant puts in for the soil movement permit the Borough will be involved in inspecting that as with any soil and construction project in the Borough. So that is another safeguard that goes into the Resolutions. Motion to open to the public – So made Mr. Krey; Second – Mr. Mehrman. Mary J. Baker, 264 Valley Road spoke for the neighbors who could not attend this meeting. She expressed that she liked Mr. Mehrman's comments regarding the creeping issue. The neighbors were happy with Mr. Costa's plan and the neighbors have no problem with the pool and if it does cause a problem with that caveat in the Resolution they are happy with that. They have been in the neighborhood for many years so they are well aware of the water situation. The neighbors will be watching to make sure that nothing gets installed that is not allowed. Motion to close to the public – So moved – Mr. Gibbons; Second – Mr. Arakelian. Ms. Stinely asks Mr. Behrens to go over the basics of the public good test for clarification. Mr. Behrens states that there are two ways that Zoning Boards and Land Use Boards can approve a C variance for the improved lot coverage that is at 39.9% where a maximum of 35% is permitted and the task that applies here is the C2 public benefits test for which the applicant must demonstrate that the public goods of granting the variance out weigh any detriments to the public and in addition that they address the negative criteria which is there are no substantial detriments to the public and no substantial impairment to the intent and purpose of the Master Plan and zoning ordinance. Motion to approve the application – So made – Mr. Mehrman states the following - 322 Van Saun Court, Block 1107, Lot 34, Olena Chumikova & Volodymyr, makes a motion that the Board grant the variance for maximum lot coverage and that is based on the revised plan submitted by Mr. Osterkorn which is a two page plan, one showing revised layout with a curtain drain and proposed pop up relief drain and a second showing the french drain detail. The plans being reviewed by Mr. Costa and that the over flow pipe from the pop up relief drain to Van Saun Court not be installed and removed from the corrected drawing. Further, noted if water continues to bother some of the downhill people the Borough will be notified and likewise if the pop up relief drain discharges a sufficient amount of water to become a nuisance or a safety hazard that the applicant agrees to enter into a agreement with the Borough to install a continuation of the pipe to an off site Borough facility. Mr. Arakelian states that if the Board is predicating this application if the pop up doesn't work and the applicants have to enter into a licensing agreement with the Borough, what happens if the Borough council refuses the license application? Ms. Stinely advises that should it get to that point then the applicant will be back before the Board. Ms. Stinely summarizes Mr. Mehrman's Motion for accuracy. The motion is that the Board grant the variance for 39.9% maximum improved lot coverage based on the revised plan, including a curtain drain and pop up drain, the overflow pipe will be removed and a corrected drawing will be submitted to the Board. If drainage problems persist the applicant agrees to a Borough Engineer review and recommendations including but not limited to seeking municipal connection if necessary. Mr. Costa clarifies that the only reason the applicant would connect to the municipal system is not to by pass or stop any flow going to the neighbors its if it becomes a public nuisance where there is flow coming out of the pop up constantly. Mr. Costa explains that there are a couple of times that the Borough has done this, there are other situations where these exist in town, where people are allowed to tie in, there is actually an agreement that in the event that this backs up and causes harm the Borough is held harmless. Discussion is going back and forth between the Board members, Mr. Behrens and Ms. Stinely about seconding the motion. Mr. Feffer seconds the motion. Roll call, Mayor Papaleo – no; Chairman Caslin – yes; Ms. Boland – yes; Mr. Mehrman – yes; Mr. Krey – No; Mr. Arakelian – Yes; Councilman Chinigo – yes; Mr. Gibbons – yes; Mr. Fffer – yes; Mr. Esposito – yes. Motion passes. Motion to adjourn – So moved - Councilman Chinigo; Second – Mr. Mehrman. -5-