The meeting began with the pledge of allegiance and a reading of the Sunshine Law. The following board members were present: Mr. Beninati, Mr. Westbrook, Mr. Vitale, Mr. Schlenker, Mr. LoForte, Mr. Lepore, and Mr. Rica arrived late. A correction to the minutes of September 27, 2001: Mr. Lepore was present as an alternate for Mr. Vitale. The correction to the minutes was accepted. Mr. Westbrook made a motion, 2nd by Mr. Lepore. All in favor. Mr. Rica made a motion to pay the Board Attorney and the Recording Secretary, 2nd by Mr. Lepore. All in favor.
Application #259 (Nextel Industries) to install antennas on the Kenilworth Inn sign was voted on. Mr. Beninati, Mr. Schlenker, and Mr. Lapore voted to pass the resolution. Motion granted.
Mr. Schlenker announced there are three applications on the agenda.
Application #03-01 (RE: Mooney request for a variance on a fence); public notice was not given by law in a timely fashion, therefore, a continuation was given for the November 29 Planning Board meeting.
Application #02-01 (RE: the Estate of Restuccia, 10 North 24th Street; to establish this residence as a two-family dwelling). Mr. Joseph Paparo, attorney of the law firm of Heil & Heil, and representative of the estate of Restuccia, requested a five-minute break in the proceeding to discuss amending some of the aspects of the application. After the break, Mr. Schlenker explained a procedural issue; a controversy as to weather or not 10 North 24th Street has, for an extended period of time, has been a two-family dwelling. Based on the information given to the Zoning Officer, he advised the applicants they need to apply for a variance, because it has been a one-family house. The issue is weather or not there is sworn evidenced; if it has been continuously used as a two-family house for a long period of time, then the applicant would appeal the decision of the Zoning Officer. As a result, the Planning Board would vote to uphold the decision of the Zoning Officer or over-rule it. If, on the other hand, the applicant chose to proceed as he originally applied for a variance, then that must be heard by the board of Adjustment. The Board of Adjustment consists of seven people. In order for the Board of Adjustment to approve and grant the use variance, it requires 5 affirmative votes. Mr. Vitale is ineligible to participate because he owns property within 200 feet of the estate. That creates a
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problem, because there are only present five Board of Adjustment members, and all five would have to vote in the affirmative to grant the variance. So the applicant is trying to decide with his attorney weather or not to proceed, knowing there would have to be a unanimous decision of the five Board of Adjustment members present. The alternative would be to request a continuance to the November 29 meeting. The attorney decided to carry-over the meeting until November 29. Mr. Lane, Borough Attorney, stated another published notice of the November 29 meeting is not necessary. Mr. Schlenker confirmed this statement. In answer to a question, Mr. Schlenker stated the applicants have decided to ask for a variance, not to appeal the Zoning Officers’ decision. Mr. Schlenker asked Mr. Lane: if an applicant is now requesting a variance, does that preclude the applicants from changing the ruling on that appeal? Mr. Lane answered: anytime between now and the meeting, the applicants can change or modify the application to be that of an appeal of the Zoning Officers’ decision. They can make a decision on a deed variance. If, for instance, it is a matter of lack of proof tonight—that proof can be developed over a period of the next few weeks. If it is a pre-existing, non-conforming use and found as a fact, then no variance is needed. If it is not a fact, but was used as a two-family residence prior to 1955, when the first ordinance was enacted (and had not been abandoned for any period of time), then it is a pre-existing, non-conforming use by operation of law, and is incorporated into our zoning ordinances. The burden of proof is on the applicant. Mr. Schlenker asked: if the applicant proceeds for a hearing requesting a variance, and the variance were to be denied, does that preclude his coming back? Mr. Lane answered: I do not believe it would preclude him coming back. A variance is not a fact (as in a pre-existing use). In a variance, the affirmative, and the negative criteria has to be approved.
Question: what kind of proof is required? Answer, Mr. Lane: a sworn statement, made under oath is evidence. If there is contradictory sworn proof, then it is a matter of
Which is more creditable. Question: if you have proof that someone other than a family member was paying rent, then that is valid proof. But, as a friend of the applicant; is that sworn statement proof? Answer, Mr. Lane: he could have documents (rent receipts, etc.). He can have sworn statements of witnesses present—not handwritten letters. Anyone who wishes to contradict that can offer proof that says otherwise. If you go down to Superior Court, it is not uncommon to have two witnesses that do not agree. It is up to the "decider of the fact" as to which one is more creditable. The "decider of the fact" is this Board. The quantity and the quality of the proof is up to this court to decide. This will be decided at the next meeting. That is, assuming that the applicant does not change his mind from a request for a use variance to an appeal of the Zoning Officers’ decision (based on pre-existing use). The criteria and documentation, and the number of votes is different from each other (variance vs. appeal). With both, you still have to offer evidence and it has to be in a sworn statement. Question: what constitutes a quorum? Answer: for a use variance, five votes, for a Board of Adjustment, 4 votes, for Planning Board, 5 votes of qualifying voters.
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Application # 260 (RE: Schering-Plough Variance and Site plan approval for K-5 Auxiliary offices Mr. Westbrook excused himself, as he is an employee of Schering, and Mr. LoForte rejoined the board; as a council member he is on the Planning Board, but not on the Board of Adjustment. Mr. Lane explained Shering has a modification of the original application in the form of eight more modular units. Mr. Barry Morrell, an attorney for Schering at the firm of Apruzzese, McDermott, Mastro, and Murphy, explained the original eight units were not sufficient to accomidate the increase in the need for additional units. Schering recently purchased a site in Summit and applications for K-10 and K-2 are under construction. Schering needs sixteen modular temporary units as opposed to eight. Eight are needed for December and the other eight are needed for January. An amendment to the application will be made at the next Planning Board meeting. Mr. Morrell requested that Mr. Lane could have a resolution ready that evening of November 29, after hearing the testimony of this night, so that it could be done as a one-step process. Once the Summit site opens, and the other offices are completed, thees temporary office trailers will no longer be needed. Schering will agree, if necessary, that the trailers be moved by a certain date as a condition of approval (by the end of December, 2004, or sooner).
1st Witness: Mr. Mike Steffner, Engineering Project Manager for Shering. Some add-on trees were added to screen the view of the plant from the western side. Exhibit A-1 shows the position (west of Building K-5) of the auxiliary eight modular units and a rest-room facility. It will hold a maximum of thirty-six employees. Presently, no additional parking spaces will be needed. There are now 4,375 parking spaces. Borough codes require one space for each 250 ft. of office space, and 500 ft. of manufacturing space. Therefore, a continuation of the variance relief for parking will be required in the future in the K-2 lot. Also, the units will be at a 90 degree angle different from the proposed sketch. The auxiliary offices have a natural buffer by the Parkway. An additional thirty-six employees will inhabit the eight trailers, located 350 ft. from the Parkway, and 230 ft. from the property line. Mr. Lane: it will be necessary to notify the Board of Adjustment of the additional eight units. It will not be voted on at this meeting, but voted on at the November 29 meeting with the additional eight trailers. A new tax certification will be needed. Mr. Vitale made a motion to accept the eight modular units this session with a new application for an additional eight units at the November 29 meeting. Mr. Vitale made a motion for this suggestion, 2nd by Mr. Beninati. All in favor: Mr. Beninati, Mr. Vitale, Mr. Schlenker, Mr. LoForte, Mr. Rica, Mr. Lapore.
A motion to adjourn was made by Mr. Vitale, 2nd by Mr. LoForte at 9:20 p.m.
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