Board of Adjustment

Minutes Approved 01/09/2023 Tenafly Board of Adjustment Regular Meeting December 5, 2022 7:30 pm MINUTES OPEN PUBLIC MEETINGS ACT STATEMENT: Chairperson Kominsky read the Open Public Meetings Act Statement: “In accordance with the provisions of the Open Public Meetings Act P.L. 1975, chapter 231, adequate notice has been made of this meeting by sending the same to The Record and The Star Ledger. Posting said notice on the public bulletin board in the lobby of the Municipal Center, posted to the Municipal Web-Site, and filing said notice with the Tenafly Municipal Clerk, all which occurred within 10 days for the calendar year of 2022. Additionally, Amended and Restated Notice of Annual Meetings of the Zoning Board of Adjustment notice has been made of this meeting by sending the same to The Record and The Star Ledger. Posting said notice on the public bulletin board in the lobby of the Municipal Center, posted to the Municipal Web-Site, and filing said notice with the Tenafly Municipal Clerk, all which occurred on December 23, 2021.” ROLL CALL: Present: Mr. Brensilber, Mr. Callahan, Mr. Cytryn, Mr. Friedman, Mr. Lieberman, Ms. Toro, Ms. Khorozian, Mr. Kominsky Absent: Mr. Cho Also Present: Mr. Menon, Mr. Zenn, Ms. Peterson, Mr. Vince, Mr. DiMaria, Mr. Sotherden, Mr. Lee, Ms. Penick, Mr. Bonanno, Mr. Teeter, Mr. Hellman, Mrs. Hellman COMMUNICATIONS: None Approval of Minutes: November 7, 2022 A motion was made by Mr. Friedman and seconded by Mr. Cytryn to approve the minutes for November 7, 2022. A voice vote carried the motion. All voted in favor; none were opposed. UNFINISHED BUSINESS: Silber, One Palmer Ave (ZB-2022-20) Keep existing rear, and side yards. Add living space over garage, raise current height to permitted. The proposed scope of work will require the following variances and any other variances discovered during review by the Board Engineer. 1) FAR required 30% proposed 40.3%. 2) Setback variance for installation of a generator and A/C condenser. 3) Relief will also be needed for intensifying pre-existing front and side yard setbacks. (Received 09/01/2022 decision by 01/01/2022) Mr. Kominsky asked the Board for their opinion of the proposed resolution. Mr. Friedman agreed that the resolution complied with what was discussed at November’s meeting. With no opposition, Mr. Friedman made a motion to approve the resolution, and Mr. Brensilber seconded. In Favor Opposed Mr. Friedman Mr. Brensilber Mr. Callahan Mr. Cytryn Ms. Lieberman Mr. Ms. Toro Ms. Khorozian Roll Call Vote: Motion approved, 7-0 NEW BUSINESS: The Bon Scott Group, 16 Cambridge Road (ZB-2022-21) Continuance of Application from 11/07/2022 meeting. Existing outside wall was proposed to be moved in 8-12 inches. After demo, looks like it may impact the neighboring house. 10’ side yard setback required – 9’ proposed (existing 9’) (received 7/15/22; decision by 11/15/22) Mr. Zenn questioned Mr. Kominsky if he can certify that he has listened to a recording of the previous meeting in order to be eligible to vote at tonight’s meeting. Mr. Kominsky stated that he watched the recording and has signed a document certifying to that. Present was the applicant Mr. Bonanno representing the Bon Scott Group and his architect Mr. Teeter. Both Mr. Bonanno and Mr. Teeter were sworn in at the November 7th hearing and are still considered under oath for this meeting. Mr. Kominsky reminds Mr. Bonanno that the testimony that is presented tonight will be new information and not a repeat of what was presented at the previous meeting. Mr. Bonanno stated that they re-measured and realized that there was an issue with the garage where they were over the front yard setback and they have begun to move the garage back to rectify that issue. Mr. Teeter’s presentation consisted of slides. He explained the slides as follows: Side A1 showed that there is an existing wall at 9’, which is 1’ over the side yard setback. They are proposing to expand on a non-conforming condition by having the second floor wall align with the first existing wall. They are also expanding on the garage by aligning it with the existing wall as well. By doing this they made some adjustments to the design which increased the FAR by a few percent, roughly 185 sq. ft. This is mainly in the rear of the house. The ground coverage is effected because there is an overhang on the back left corner of the house. The overhang is more than 2 feet. Tenafly includes any overhang over 2ft, even on the second floor as ground coverage. Slide 1B, shows the comparison of the first floor that was approved by the building department and the first floor that is being presented for a variance. The difference between the two is that the floor plan being presented for variance has an increase in square footage as they are squaring of the kitchen for a better floor plan design. Slide 1C shows the comparison of the second floor that was approved by the building department and the second floor being presented for a variance. The difference between the two is the squaring off of the bedroom on the back left hand side over the kitchen creating the overhang that was previously mentioned. This will create a square bedroom that will give the house a better design. Slide 1D explained the issue with the garage. There was a mistake when measuring. The measurement was supposed to be 14’ from the foundation wall not 19 ‘. This is in the process of being corrected. To be clear the front of the garage will line up with the foundation wall of the front of the house. Slide 1E and 1F are renderings of what is being proposed. Mr. Zenn asked Mr. Teeter if he agreed that the variances that are being sought are what Mr. Halls outlined in his letter from October 18, 2022. After Mr. Zenn read the variances out loud Mr. Teeter agreed that the variances listed are what are being sought. He mentioned that he now believes that the variance for maximum impervious coverage is no longer needed as he believes that the initial calculations included the asphalt in the public right of way. Mr. Kominsky questioned how the area below the second floor overhang impacts the request for the variance. Mr. Teeter explained that anything that extends past 2 ft. of the wall counts towards building coverage. The area is roughly 60 square feet, so it is counting towards the 185 sq. ft. overage on the FAR. It is also counting towards the building coverage. It is 60 sq. ft. that technically counts, but it is actually not on the ground. Questions from the Board for Mr. Teeter: Mr. Brensilber stated that he didn’t see any generators or A/C units mentioned on the plans. He questioned if they are included in the variances. Mr. Teeter replied that they have not proposed a location yet, but feels a good spot for them might be in the area underneath the back overhang. Ms. Khorozian questioned if the overhang was removed would they still be over on building coverage, and also asked why the overhang was needed. Mr. Teeter replied that they would still be over on building coverage and explained that the overhang is needed because it allows them to square off the bedroom on the second floor. Mr. Kominsky asked Mr. Teeter to explain the positive aspects of the variance. Mr. Teeter stated that the positive aspects are that they will be able to square off the visual side of the façade, to avoid having strange aprons with the setback of the second floor, and on the interior they will create a more usable and sellable master suite. As for the visual from the street, this is all being done in the rear of the house and not effecting the front street visual essentially giving them a better interior design overall. Mr. Friedman stated that he was looking at the plan that was submitted to the town to get the building permit. In those proposed plans it refers to the FAR being over 40.9%. So that answers the question from the previous meeting where the board members were questioning if the plans that were originally submitted needed a FAR variance and was missed or if the applicant built something that was not approved. Mr. Vince stated that he has scaled the measurements that Mr. Teeter previously mentioned regarding impervious coverage and agrees that the original calculations were incorrect. They do not need a variance for this as the proposed impervious coverage is about 42- 43% where 45% maximum coverage is allowed. He stated that he believes there will even be room for a couple of A/C pads as well. Mr. Lieberman asked for his own understanding if it is correct to say that what was built wasn’t what was originally proposed and now the board is looking at variances for what was built. Mr. Kominsky stated that the way he is looking at it is what they are seeking is what is being requested. It is not what was originally submitted but it is what they are requesting now. Mr. Bonanno stated that whatever was built if it is not approved for a variance or if it is incorrect, will be corrected at their own cost. Mr. Kominsky stated that he feels there is enough testimony to say that the application is not consistent with what is being sought today. What the board should be concerned about is whether or not it meets the criteria being sought. Mr. Zenn agreed that the board should be evaluating the variances that are being requested. Questions from the public for Mr. Teeter: Mr. Hellman of 11 Cambridge Road asked if the wall of the garage will be moved one foot. Mr. Teeter replied that the garage is going to align with the existing 9’ setback of the existing wall. There were no other questions from the public. Mr. DiMaria was sworn in as the Acting Construction and Zoning official for the Borough. He explained the timeline of events regarding the application. The initial zoning application was submitted on May 23, 2022 and was denied by Mr. Byrnes for multiple issues with variances that would be required for bulk regulations. On May 31 a new conforming application was submitted, which was approved. On June 24th a construction permit was issued. On July 11th a letter was submitted requesting to keep the north wall at the 9’ encroachment. There was concern that by doing excavation it could cause damage to the adjacent properties. At that point a formal application was submitted to be heard by the board. He believes that during the technical review process it was discovered that there were some discrepancies with how some of the calculations were finalized for the FAR and building coverage, which then created all these additional variances that might not have been expected. Mr. Bonanno and Mr. Teeter both agree with the summary of Mr. DiMaria. Mr. Kominsky questioned if it was highly unusual for issues like this to arise with permits and applications or is it unusual that further relief if requested after a building is started. Mr. DiMaria replied the typically things do happen during construction that are unforeseen and there are times that things are picked up on the final as-built that items were constructed not to conformance with the original approval and they would then have to go before the board to receive after-the-fact variances. Questions for Mr. DiMaria from the Board: None Questions for Mr. D Maria from the Public: Ms. Penick from 14 Cambridge Road asked if it is normal for builders to claim potential problems with neighboring properties without consulting the neighboring properties to see if there really is an issue. Mr. DiMaria replied the letter that was submitted to the office spoke of excavation that could possibly cause damage to the adjacent properties. He does not know if there was a specific site condition that would cause them to state such a condition. Ms. Penick questioned if it is normal for a builder to build a house almost to its entirety and then ask for relief after the fact. Mr. DiMaria replied that obviously they constructed the house knowing that they were in violation. Unfortunately things like this happen and will get caught on the final as-built. He stated he does not know at what stage of construction the house was at when the letter requesting relief to keep the north wall was submitted. Mr. Bonanno stated that he is asking to keep the existing nonconforming wall and is asking for relief to extend that wall for a garage and to also build above the existing wall for a second floor. They are actually cutting things on the house to stay as close to the FAR as possible. Mr. Lee questioned if the garage foundation on the north side is new or old foundation. Mr. Teeter responded that the foundation is new foundation, but it is not at the same depth as the existing basement wall. It is a slab on grade, which is actually 3.6’ below grade vs. the actual building. With a slab on grade you can trench out the wall to build the foundation wall. You do not have to move as much soil causing possible soil condition movement. Mr. Lee asked how deep you would have to dig to put in a three foot garage foundation. Mr. Teeter replied that to avoid the frost line in this part of New Jersey you would have to dig 3.6 feet. Comments from the Public: Ms. Hellman from 11 Cambridge Rd was sworn in and commented that she had to build her house to the Borough Code and feels that the applicant should have to follow Borough Code also. Mr. Hellman from 11 Cambridge Rd was sworn in and comment that he feels the applicant built a house that was not to code and now is seeking relief. Mr. Lee from 14 Cambridge Rd. was sworn in he stated that he read the application. The original application was for a 10’ side yard setback. During construction the builder changed it to a 9’ setback. He also stated that the builder had the opportunity to build the new garage at the 10’ setback but instead built it at the 9’ setback to align it with the existing wall. Mr. Bonanno stated there was a 3’ concrete staircase on the left side of the property that was removed from the original house to satisfy Mr. Lee. Mr. Kominsky replied that the Board is aware that some of the non-conformities have been removed including the stairs. Mr. Lee stated that he feels his house value will go down as he is not getting as much sunlight. Motion by Mr. Brensilber and seconded by Mr. Cytryn to move to executive session. A voice vote carried the motion. All voted in favor; none were opposed. Mr. Friedman feels his biggest concern is still the FAR. The original application was denied with a FAR of 40.9. The plans were revised and were approved because the FAR was compliant on those plans. But it seems that the house that was built and the relief that the applicant is requesting is for a FAR of 40.6, which is very close to the original application that was denied by the building department. Mr. Kominsky questioned if the house wasn’t already built would he approve the application on its own merits. He asked if it is that much bigger or more invasive than what the Board typically looks at. Mr. Friedman stated it bothers him that applicant submitted a plan that was denied, changed it to get approval and then modifies the plans on what was actually built. He went on to say that if you are designing a house more or less from scratch, you can comply with the FAR if you want. As for the side wall he feels that there is some legitimacy to the fact that removing soil to move the wall does become riskier then leaving the wall where it is. Mr. Callahan stated that he does not have much of an issue with the FAR and at this point he is leaning towards voting to approve the application. He agrees that building the house and then requesting relief does not make the board look good. Mr. Cytryn stated he is uncomfortable voting either way. He feels there is not just one relief being sought but actually four and he feels the board is being put in a bad situation. Mr. Brensilber understands what everyone is saying but feels the board needs to go through each variance. He states he was at the site and spoke with Mr. Lee and Ms. Penick and their points are well taken. He feels the 9’ setback is a non-issue as it was already pre-existing. He doesn’t feel the FAR is that big a deal as it is not a huge ask. He stated the board is here to address these issues, typically they are addressed in advance of the build but that is not what happened with this application. He added that if you drive down Cambridge Rd., all the homes are new on that side of the road. He feels the new house will be a positive for the neighborhood even though there are some variance issues that need to be ironed out. Ms. Khorozian feels the neighbors are coming from an emotional state, but she thinks at the end of the day the board needs to address what is presented to them, and to ask themselves if they feel this is a proper request and would they have approved it if there were no history. She agrees the asks are small. She feels she will be voting to approve the application. Mr. Kominsky stated the he agrees with Mr. Brensilber that the asks are small, but the problem is the relief is huge. That shouldn’t by itself be such a big problem because they are helping out an applicant. The purpose of the board is to resolve issues so the neighbors don’t have to resolve them between themselves. Mr. Lieberman stated that based on the merits of the application he will probably approve it. He feels the applicant has set a bad precedent for himself in the town. Mr. Cytryn pointed out that they have rarely if ever approved as many variances as what is being asked for with this application. Ms. Khorozian believes that the number of variances has been reduced. Mr. Zenn clarified that the maximum impervious coverage has been eliminated as they now comply. The following variances are still being sought. FAR max 37.5% requesting 40.6%; building coverage max 25% existing 27.1% requesting 28.1; Side yard and combined side yard 9’ existing and 19’ combined, they are proposing the same as they are building vertically. As the applicants have also stated they will be removing the old A/C units and have removed concrete steps. This will remove some of the existing non-conformities. The Board agrees to vote on the D variance (FAR), separately from the three C variance requests. Motion by Mr. Brensilber and seconded by Mr. Cytryn to approve the FAR, D variance request. In Favor Opposed Mr. Brensilber Mr. Cytryn Mr. Callahan Mr. Friedman Mr. Lieberman Ms. Toro Mr. Kominsky Roll Call Vote: Motion approved 5-2 Motion by Mr. Brensilber and seconded by Mr. Cytryn to approve the three C Variance requests. In Favor Opposed Mr. Brensilber Mr. Cytryn Mr. Callahan Mr. Friedman Mr. Lieberman Ms. Toro Mr. Kominsky Roll Call Vote: Motion approved, 7-0 Before the meeting ended the Board Secretary read the proposed Meeting Schedule dates for 2023. Motion by Mr. Lieberman and seconded by Mr. Brensilber to approve the 2023 meeting schedule. A voice vote carried the motion. All voted in favor; none were opposed. Mr. Kominsky stated that the Borough is no longer using Webex as a remote meeting service come January 1st. The Board was given a choice to devote money from its budget to pay for zoom remote meeting services or go back to in person meetings. After hearing the board members view on the matter it was decided the meetings will stay remote. ADJOURNMENT: Motion made by Mr. Lieberman and seconded by Mr. Brensilber to adjourn the meeting. A voice vote carried the motion, and the meeting adjourned at 9:20 Respectfully submitted, Sharon Peterson Board Secretary