Borough of Kenilworth

567 Boulevard

Planning Board Minutes

January 28, 2010

The meeting began with an affirmation of the Open Public Meetings Act requirements and the Pledge of Allegiance.� The Minutes from December 17, 2009 & Re-organization Meeting Minutes of January 7, 2010 were approved.� Approval was given to pay the Recording Secretary and the Board Attorney.

Roll Call:� Present:� Mr. Lepore, Ms. Bogus, Mr. Candarella, Mr. Herbert, Mr. Picerno, Mr. Sica, Mr. Pugliese, Mr. Cammarota. Mr. Pantina was absent.

Motion was made by Sal Candarella, seconded by Madonna Bogus to pay the Recording Secretary.� All in favor.

Communications:�� None

RESOLUTION: Application #14-09, Daniel Curtis, 7 Commonwealth Road, Block 90, Lot 13, variance for a front yard setback on an extended porch with a roof.� A motion was made by Bob Herbert, seconded by Anthony Pugliese to approve this resolution.  All in favor:  Mr. Lepore, Ms. Bogus, Councilman Candarella, Mr. Sica, Mr. A. Pugliese, Mr. Picerno.

RESOLUTION: �Denial of Appeal made by Walter and Barbara Barnansky 209 North 20^th Street. Motion made by Mr. Candarella, seconded by Mr. Picerno to approve the Resolution. �All in favor. �Mr. Lepore, Ms. Bogus, Mr. Candarella, Mr. A. Pugliese, Mr. Sica, Mr. Cammarota, Mr. Picerno.

RESOLUTION: Application #09-07, Zdzislaw Lesniewski, 321 North 20^th Street, Lot 3, Block 7 for a Minor Subdivision.� Motion to adopt Resolution was made by Sal Candarella, seconded by Mr. Cammarota. All in favor.� Mr. Lepore, Ms. Bogus, Mr. Candarella, Mr. Sica, Mr. A. Pugliese, Mr. Cammarota, Mr. Picerno.

New Business:�

Application # 13-09, Hector E. Colon, 296 Lincoln Drive, Block 97, Lot 15, Residential Variance. �

Mr. Lepore recused himself and turned the meeting over to Mr. Picerno.

Mr. Colon was sworn in by Attorney, Michael Tripodi.

Mr. Colon stated he did some cement construction in his back yard and replaced a fence that was falling apart and within that work he replaced a side step for their side door.� His back neighbor complained that the porch was too large and the inspector came by and said it was to close to the property line. Mr. Colon provided pictures of the porch.

Mr. Candarella asked how much was the step increased?� Mr. Colon said it was supposed to be 4 feet from the property line but it is only 1 � ft. from the property line.

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Mr. Candarella asked what was there before the porch and was it 5 ft. from the property line?� Mr. Colon said there was a smaller porch and it was 5 ft. from the property line.

Mr. Candarella asked Mr. Colon if he built the new porch before getting a permit and Mr. Colon answered yes. He said he got permits for the fence but not the porch. Mr. Colon said he spoke to his neighbor on the side of his house where the porch was being constructed and it was OK with them, but the back neighbor complained.

Mr. Picerno asked how many feet did the porch increase by? Mr. Colon replied about 1 � ft. from the property line.�

Mr. Herbert said the side yard set-back is 5 ft.� Mr. Candarella asked Mr. Herbert if steps are allowed in the set back because they are allowed in the front yard? Mr. Herbert replied no, the setback on the side is 5 ft.

Mr. Cammarota asked Mr. Colon if there was a porch there before and what were the dimensions?� Mr. Colon said yes there was a porch with two steps and the reason he was replacing the porch was because there was a crack in the concrete.� Mr. Colon was asked if he ever got a permit for the construction and he said he did not. He said he did the porch in conjunction with the fence and he got a permit for the fence. Mr. Colon said the neighbor complained because he left the elbows off the garage and he complained about the water. He said he replaced the elbows and and when the inspector came to inspect the elbows he noticed the porch.

Mr. Candarella said to Mr. Colon that if the board determines that the porch needs to be removed then he has to comply. Mr. Colon said yes he is prepared.� Mr. Candarella said the 5 ft. set back is so that emergency vehicles can get by.�

Mr. Cammarota asked how long has the stoop been there? Mr. Colon replied it was there nine years ago when he moved into the house. Mr. Candarella asked if it was encroaching on the 5 ft. set back?� Mr. Colon replied yes it was but he does not know the exact measurements. Mr. Candarella said according to the application it was 9� 9� and Mr. Pugliese added that when Mr. Colon added another 4 ft., that is how he got 1 ft. between the fence and the wall.

Mr. Picerno stated there was an approximate 4 ft. stoop with a 5 ft. clearance between the fence and the stoop, giving the full 9 feet which met the set-back requirements prior to building the stoop.�

Mr. Cammarota asked Mr. Colon how many feet did he increase the stoop by? Mr. Colon replied 4 ft. and there is approximately 1 � ft. left.

Mr. Herbert said that according to the survey there is a patio coming off the rear stoop of the building and when he did an inspection of the rear patio at the back of the house it was a lot larger. He said also on the right side of the garage in the rear the survey �is not indicating a walkway but when he went out and did an inspection there was a walkway and he believes that is how the whole thing started because it was flooding.�

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Mr. Candarella asked Mr. Herbert if there was permit�s for the other work? Mr. Herbert replied only the fence and for patios you do not need a permit. He said for a stoop you need a footing inspection. Mr. Colon said he did not have a full understanding of the rules. He said he did take out a permit for the fence but he did not know he was supposed to take on out for the cement work.

Mr. Picerno asked Mr. Colon if he sent out notices to any neighbors and Mr. Colon said no other than casual conversation but for tonight�s meeting he sent out the certified letters.�

Mr. Herbert asked Mr. Colon if there were any plans for the future for a portico roof to cover the platform? Mr. Colon said no but there is an awning there now.� Mr. Colon said he did not anticipate the stoop being made that much larger but it helps out with getting things in and out of the house because the side door is easier to access when they are moving things in and out of the house. Mr. Cammarota asked Mr. Colon how far is the neighbor�s house from the line?� Mr. Colon said he does not know.

Mr. Herbert asked Mr. Colon if he knew the name of the contractor and Mr. Colon said it was Angel�s Paving.

Mr. Picerno asked the Board if they had any more questions and they did not.� He also asked Mr. Colon if he had anything further to say and he replied no.

Mr. Candarella made a motion to open the meeting to the public, seconded by Rudy Cammarota.

No one from the public wished to speak

Motion was made by Mr. Candarella, seconded by Ms. Bogus to close the meeting to the public.�

Motion was made by Mr. Candarella to deny the application, seconded by Mr. Pugliese.� All in favor:� Roll Call:� Ms. Bogus, Mr. Candarella, Mr. Herbert, Mr. Picerno, Mr. Sica, Mr. Pugliese and Mr. Cammarota.

Mr. Herbert stated the application is denied and Mr. Colon needs to proceed to the Building Department to take out a permit and call for a footing inspection. �Mr. Colon asked if there was a time frame involved?� Mr. Tripodi said the Resolution will be memorialize next month.� Mr. Herbert said as long as he does it within reason, like the next break in weather and as soon as spring arrives he can schedule the inspection with the Building Inspector.

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Application #310 � Site Plan � Merck, 2000 Galloping Hill Road, Block 181, Lot 1, Block 180, Lot 11, 12, 13 & 18. Block 178, Lot 4.

Thomas Malman, Attorney from Day Pitney stated he is the attorney representing Merck.

Michael Tripodi asked Madonna if she received the green cards and proof of affidavit and she replied yes she has received everything.

Mr. Malman stated that Merck and Schering Plough merged last year and as a result Merck has made some decisions about how they are going to link their various sites.� He said the good news is that Merck is content to stay in Kenilworth.� He said they would like to construct a Heliport at the Kenilworth site to link with the other Merck facilities.� He said there are sites in Rahway, White House State, Pennsylvania all of which have Heliports.� He said the application requires Site Plan Approval.� The applicant proposes to put the Heliport on the top level of an existing parking garage with no additional coverage.� He said the existing garage exceeds the height limitation and is roughly 83 feet in height. He said the fact that they are building on top of a non-conforming garage requires a height variance. He said what they are building is not going to be at the highest point and portions of the deck are higher than the Heliport.� He said they also need a parking variance because when they put the Heliport on the parking deck, they are taking away 24 parking spaces.� He said they do not need the parking spaces. He said if you look at the application there are several thousand spaces that the ordinance says they should have. They are taking 24 spaces out and that requires a parking variance.� He said the other legal issue is whether they need a Use Variance or if this is considered an Accessory Use. He said the Borough�s Ordinance is not clear on Accessory Use because it does not talk about helicopters or heliports anywhere in the ordinance. He said there is case law cited in the application and in his view the report deals with accessory use.�

They have asked the Board for an interpretation to decide if this is an accessory use or not.� If it is then they will go forward with a permitted use with a parking variance and the height variance.

Mr. Malman called their planner, Michael Tobia to talk about the interpretation question as to whether it is an accessory use or not and they will wait to see what the Board decides.� After that he has some people that he would like to call including Gail Driscoll from Merck who will tell everyone why Merck needs a heliport. Bill Davis who is a heliport consultant will tell everyone about the design of the heliport, why it is where it is and how it is going to work. He will also call Nicholas Rotonda from T & M Associates who is the Site Engineer and Norman Dotti from Russell Acoustics.� He said he wasn�t going to call Norman or Nicholas because their reports speak for themselves but they are here for any questions.

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Michael Tobia, Community Planner, was sworn in by Attorney Michael Tripodi.

Rudy Cammarota and Sal Candarella left so that the Board could determine if the application is for a Use Variance or Accessory Use.

Mr. Tobia stated he is the applicants Planning Consultant and he holds a license in Professional Planning for the State of New Jersey, a Bachelors Degree from NJIT, Masters Degree in Planning from Rutgers.� He said he graduated in 1981 and has been practicing every since.�

Mr. Lepore accepted Mr. Tobia�s qualifications.

Mr. Tobia showed photos of the site selected for the helipad, which is the K-12 Parking Deck and is the tallest parking deck in the campus.� He said if you came in off Galloping Hill Road it would be in the far back southwest corner right up against the Parkway.� He said if you came in off 31^st Street it would be at the cul-de-sac near the Carpenters Union Building. Mr. Tobia showed a picture (Exhibit A-1) which is a copy of the 7 level parking deck.� He said the 3 flights coming up to the top level of the parking deck which would be the 4^th, 5^th and 6^th� levels are basically unused parking decks.� The proposal would be to put the facility at the far end of the deck.� He said it is a 60 x 60 foot pad and it will be raised 14 ft. above the level of the existing parking surface. He said they inventoried the parking deck for a few days over the last several weeks to get an idea if Merck would ever need this parking deck and the answer was clearly no.� He presented a picture which was taken from mid point of the parking deck looking south at the proposed helipad location.� The illustration super imposed the 60 x 60 Helipad and it illustrates the pad, the height and the two staircases that provide access, one on the south side and one on the north side.� He said there is a bit of lighting which is a requirement that you will hear about from another witness. He said there is a safety net around the outside.� He said it cannot have safety rails because they would get in the way of the helicopter. He said there are also some landing markings and it is a very simple structure. He said the advantage to this is that if you put on a deck you do not have to land down below and it reduces noise.� He said by putting it up above trees and utility poles you eliminate all those conflicts.� He said physically you could drive cars under the helipad and because it is up on stilts and you could also park under but out of an abundance of caution, the Site Plan shows that all those spaces would be lost even though you could do it structurally and functionally but they have eliminated those from the plan to be extra conservative.

He said Ordinances usually distinguish between what they call principal uses and accessory uses.� The principal uses in the I-Zone are things like offices, warehouses, manufacturing plants, etc.� Accessory Uses in Zoning Ordinances are rarely specified so directly.� He said the Borough�s Zoning Ordinance in the residential zone says you have no permitting accessories.� Swimming pools, garages, driveways, decks, patios are not specifically permitted.� Players rely on common sense to figure out what is permitted and what is not.� He said in your commercial zones parking lots, loading decks, and trash dumpsters, which are an accessory use, are not specifically mentioned in your zoning ordinance.� He said this is quite common place for the simple reason because it is easy to write down the five principal uses you want in a given zone, accessory uses can have 10 or 12 accessory uses on a given property.� He said the whole parking deck is an

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accessory use, the dumpsters, fences, lighting, sidewalks are all accessory uses and not one of them are mentioned in the Zoning Ordinances.� He said if you took a real strict position that nothing mentioned in your ordinance requires a use variance you would be getting a use variance if you wanted to build a parking lot or a fence.� He said the ordinance in the Borough and in virtually every town says the accessory use has to be customary and subordinate and incidental to the main use and those are the words any ordinance you look at are going to say.� The ordinance says the use of land which is customarily associated with and subordinate and incidental to the principal use which is located on the same lot and the helipad is proposed on the same lot as all the buildings. He said they need the ordinance definition. He said if you went throughout the State and looked at corporate helipads and facilities you would see Merck has a similar facility to what is shown on picture A-2.� He said other heliports are located Weichert in Morris Plains, Sony in Bergen County and there are many many more.� He said the courts in a case known as PTL case in Paramus have dealt with this issue.� In that case it was a corporate headquarters for a construction company and the construction company wanted to send their executives to various job sites and the helicopter would save 3 or 4 hours of drive time. He said it would be the same for Merck except they would not go to job sites, they would go to different headquarters. �He said the PTL case says basically what your local ordinance says which is you have to do two things as a Board to test whether something is accessory.� The first question is to see if it is incidental for the main use? He said you will hear testimony in a few minutes that it is absolutely incidental, only Merck executives are going to use it.� The second question is is it customary?� He said when the Supreme Court talked about this it said customary

doesn�t mean it has to be in every facility or every home it just has to be reasonably occurring. He said think about the swimming pool in the backyard of a house.� It doesn�t happen at every house but there is no doubt that swimming pools are customary. It went on to say that a Helipad at a corporate headquarters was a valid accessory use under a zoning ordinance permitting accessory uses which are customarily incidental to a permitted use. He said the ordinance in Paramus was similar to what we have in Kenilworth, it had the same tests customary and incidental.� He said it bears the same resemblance from a planning prospective as the parking lots, loading docks and so on.� He said his view is that there should be no questions that this is an accessory use because it is so commonplace in all the corporate facilities as long as it is only going to be used by Merck and is incidental to Merck and they have always thought it was an accessory use.

Mr. Malman added that the expectation is that it will be there as long as Merck is there and if Merck were to abandon the site then the heliport would be gone also.

Mr. Herbert said if this is granted as an accessory use and per your statement that if Merck left so would the helipad would you object to an agreement with the Borough with that stipulation?� Mr. Malman replied no he would not object.

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Mr. Kevin O�Brien from Shamrock was sworn in.

Mr. O�Brien said the Municipal Land Use Law authorizes the Zoning Board of Adjustments to interpret the ordinance.� He said to the Board that they are being asked to decide whether or not a helistop at the Merck location is customary and incidental to accessory use.� There argument is that this is the type of use that accompanies most large research and manufacturing firms and they are asking you to decide whether or not they have met that burden of proof that this is now an accessory use.� He said if it is an accessory use then, following that decision by this Zoning Board of Adjustment,� the entire Land Use Board would then be reconstituted and everybody would get together and then Merck would put on an application for preliminary final site plan along with two variances, one for height and one for parking.� He said that is, of course, a much lesser burden of proof then a use variance would have and it requires them to show that the preliminary and final site plan don�t require any variances and the variances that they do require they meet one of the tests.� He said it is the Board�s decision whether or not this is an accessory use that they have made a case for.� He said it sounds very reasonable but the decision is entirely the Boards.

Mr. Tripodi said that for every issue there are two sides.� He said the PTL case is a reasonable argument and he feels there are distinctions within that case with regard to the Borough of Kenilworth and Paramus and his feelings are a little differently as to where he would lean for use variance.� He said he does not believe the interpretation or the argument is an unreasonable one with the PTL case.�

Mr. Picerno said to Mr. Malman he thinks that if he heard correctly, Mr. Tobia stated that by putting this up there would be no elimination of parking spaces because there would still be parking underneath the Heliport.� Mr. Malman said they made a decision to eliminate the spaces but for a practical matter you could keep the spaces and park under the heliport because it is elevated.� He said the feeling is that if they don�t need the spaces then why invite that conflict so they are going eliminate the spaces.� He said it is physically possible to park under the helilpad.

Mr. Herbert made a motion, seconded by Rich Picerno to accept the application as an accessory use.� All in favor:� Roll Call:� Mr. Lepore, Mr. Herbert, Mr. Picerno, Mr. Sica, Ms. Bogus. Mr. A. Pugliese.� Motion carried.

Mr. Lepore said the meeting should proceed as a Planning Board Meeting.� Mr. Candarella and Mr. Cammarota came back to the dais.�

Ms. Gail Driscoll, Manager, Public Affairs from Merck was sworn in by Michael Tripodi.

Ms. Driscoll said she has been employed by Merck for the past 21 years as Manager of Public Affairs.� Mr. Malman asked Ms. Driscoll if she was familiar with the former Schering Plough site as well as the Merck Helicopter operation and she replied yes. He asked her if she was familiar with the application before the Board tonight?� Ms. Driscoll replied yes. Mr. Malman asked Ms. Driscoll to explain why Merck has filed the application and why does it want a Heliport at this location?� Ms. Driscoll stated that this is the first time Merck is having the opportunity to come before the Board and she is very

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excited to be here.� She said they have been a neighbor in Rahway for over 100 years.� She said in November, 2009 Merck and Schering Plough merged, creating the second largest pharmaceutical company in the world.� She said the Kenilworth site is the largest site for Merck in New Jersey. She said they have stated publically that the Kenilworth location is going to be integral as Merck moves forward. They are very excited to have the Kenilworth site linked in to the Merck network and they would like to do that as efficiently as possible, hence we are here tonight.� Merck is requesting that the Helipad be installed on the top level of an existing parking garage which would allow Merck to facilitate communications, activities and management of their operation between work sites.� It will be used by our senior level leadership for business purposes.

Mr. Malman asked Ms. Driscoll if Merck has a flight department and she replied they have been in the aircraft operations for more than 25 years and have experienced flight crews. She said their pilots have over 15 years of experience and thousands of hours of� with an excellent safety record .� They are also trained on an annual and semi-annual basis for compliance purposes.� Mr. Malman asked if Merck has other Helipads?� Ms. Driscoll said Merck has a helipad in Rahway as well as White House and also at their large facility in Pennsylvania.� Mr. Malman asked if it is for Merck employees to go between those various sites?� Ms. Driscoll said it is for their leadership as opposed to general employees. Mr. Malman asked if the importance of having it in Kenilworth is to link Kenilworth into the existing Merck network and she replied yes. Mr. Malman asked Ms. Driscoll, in terms of operations, can she explain what is expected in terms of when the helicopter will be used and perhaps how many flights there might be on a daily basis.� She said they have about 2 flights per day at Rahway but the real driver is the business meetings and because it is for business purposes on any given day business meetings can change.� She said on some days there will be no flights at all and on some days there could be major meetings and multiple flights during that day.� Mr. Malman added the meetings could be a board of directors meeting or something like that but the average usage over the course of a year would be about two flights per day and Ms. Driscoll replied yes. Mr. Malman asked Ms. Driscoll what would be the procedure if Emergency personnel wanted to use Merck�s Helistop for an accident on the Parkway or something like that?� Ms. Driscoll responded that they have always had a good neighbor policy and as such they have allowed their other helipads to be used for emergency services.�

Mr. Lepore asked what time of the day would the flights be? She replied they would be during normal business hours and 7:00-7:30 AM might be a start time, roughly ending 6:00 or 6:30 pm.� She said there could be other reasons why it might be later but it would be rare and not on a regular basis.

Mr. Herbert asked, in the other facilities where you have the Good Neighbor Policy, how does Merck contact the local police departments, hospitals and State Police?� Do you send out a memo offering this service? Ms. Driscoll said local emergency services already have the emergency number and they would call security and they are allowed in and escorted to the heliport. Mr. Malman said that once this is licensed, it gets logged in with the DOT so it is public information and he expects that the State Police and Medivac people would know about this and certainly if you wanted us to log into Kenilworth or notify someone in particular, we would because we are happy to work with Kenilworth in that regard.

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Mr. Herbert said the Police Department and the Fire Department should have all the information and Mr. Malman said they could give them the contact information.

Mr. Picerno said there are a lot of residents who live along the Parkway and he is concerned about the hours of operation.� He said when there is an accident on the Parkway and the helicopters and news teams are right over the spot it becomes quite noisy.� He asked if Merck would have any objections to restricted hours, especially in the morning.� Ms. Driscoll stated they need the flexibility for business needs.� She said they could possibly consider working with preferred hours but to have formal restrictions, she would hope not. She said given the fact that the trips are for business purposes and they� cannot possibly know of the times they would have to meet ahead of time, it would be hard to have restricted hours. Mr. Malman said you are really talking about the odd circumstance of an emergency that may come up very infrequently.� He said they actually catalogued flights involved in emergencies and there were just a handful that have been beyond the hours described, but they do happen every now and again.� He said the next witness will talk about the helipad itself and the location of the flight paths.� He said you will see that a lot of it goes over the Parkway, over a neighboring light industrial area and �a golf course.� He said Merck was sensitive in terms of how they orientated the flight paths.� Mr. Malman said there is not one home in Kenilworth that they are going to fly over.� He said there are homes in other towns, such as Roselle Park that they will fly over.�

Mr. Lepore said that the hours the flights coming in and leaving is basically during heavy traffic time on the Parkway as well as the Boulevard.� He said his concern is public safety and he said maybe the flights can be made after early morning hours.� Mr. Malman said the next witness, Mr. Davis will be able to explain why this location was picked.

Mr. Herbert said he assumed Merck has been in touch with the FAA as far as flight patterns and so forth?� Mr. Malman said they have to get both FAA & DOT approval and both applications have been submitted.� The DOT has come out but they have not yet issued the license because they will wait for this Board to issue a decision before they take action. He said those applications have been submitted and are pending.

Michael Tripodi said that if there is a motion to approve this resolution, those would be conditions in the resolution as to outside approvals but just so the Board knows, they cannot be dictating flight patterns because you are preempted by a higher authority.�

Mr. Picerno asked if there was hovering time or an idle time when the helicopter is on the pad?� Mr. Malman said the next expert, Mr. Davis will answer that question.

Mr. Cammarota asked if they were seeking height variance for the building that is 80 feet?� Mr. Malman said not for the building, but for the helistop itself.� He said the building already exists and is above the 50 ft. threshold.� Mr. Cammarota asked how it became above the 50 ft. threshold?� Mr. Malman said he assumed it was given through a variance given at some point in the past.� He said if you look at Exibit #2, the height is 80.3 ft. at the top of the stair tower which is an existing condition.� He said if you look further at the exhibit 73 feet is going to be the top of the helipad.� He said it is not quite as high as the tallest point but elevated off the existing top deck.� He said your

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ordinance is a 50 ft. cap so anything we do above 50 ft. requires a variances so the fact that we are building above the 50 ft. plane requires a variance.

Mr. William Davis, Helilport Systems, Inc. was sworn in by Michael Tripodi.

Mr. Davis stated he is the president of Heliport Systems, Inc., 55 Madison Avenue, Morristown, New Jersey.� He said his firm plans, designs and constructs heliports for hospitals and businesses throughout the United States and Canada.� Mr. Malman asked Mr. Davis how many heliports has he designed in his career?� Mr. Davis replied approximately 325.� He said examples are Morristown Memorial Hospital, Hackensack University Medical Center, Robert Wood Johnson University Medical Center, UMDNJ, and the South Star base of operations at Voohees.� Mr. Malman asked Mr. Davis if he was familiar with the Merck site for the heliport application and has he visited the site and is he familiar with the design criteria?� Mr. Davis said replied yes.

Mr. Malman asked if there were any questions regarding Mr. Davis�s expertise? Mr. Lepore replied no.

Mr. Malman said there was a question earlier as to whether we need DOT or FAA approval and he asked Mr. Davis to talk about the jurisdictional requirements of those two agencies.� Mr. Davis said the FAA is most concerned with the flight paths and making sure that the helicopters landing and taking off have good air separation from other helicopters and airplanes from other heliports and air ports.� He said the FAA also publishes a heliport design guide and it details standards on size and location.� He said New Jersey DOT is also concerned with the flight paths but they do not get involved with air separation, however New Jersey DOT does come out and make sure the facility itself meets the FAA design standards.� Mr. Malman added they are also concerned with obstructions that may be in the area that might affect flight paths coming or going to the helistop.� Mr. Davis said the inspector came out and stood on top of the garage and was shown where the flight paths are being proposed and he checked the levels.� Mr. Malman reiterated that the DOT had been to the site and he asked Mr. Davis if they had any objections or concerns and he replied by saying the DOT is prepared to approve the heliport once the Town approves it.�

Mr. Malman asked Mr. Davis to explain why they picked that particular parking garage for the site.� Mr. Davis said he looked at all the lots on the entire campus and there were six factors that they used.� He said they tried to keep the site away from residential areas as much as possible but still close to where the passengers in the helicopters are going.� They decided the parking garage is the best site because it is close to the parkway which is a major transportation corridor. He said because the heliport is on top of the garage, it gives much more freedom in flight paths.� He said because the entire site is within what the FAA calls Class Bravo air space, it is a requirement that any pilot entering this area must call Newark Airport tower and announce that he is arriving and then he gets permission from Newark Airport to enter the area.� If he is on the ground, he is not going to have good communications with the tower because with radio communications you want to be up high. He said the antennae on the helicopters are on the belly. He said if it is sitting on the ground it is not going to have good communication with the tower whereas if it is up high it would. Mr. Malman asked Mr. Davis about the flight path. Mr. Davis said the FAA requires two flight paths at least 135 degrees apart

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from each other and these are almost 180 degrees apart.� He said the reason for that is helicopters are just like airplanes in that they go left when landing into the wind and taking off into the wind.� He said cross wind is acceptable and downwind should be avoided. He said the prevailing winds in this area are pretty much north and south and if you look at the runways at Newark Airport the two major ones run north and south, the same thing with Tetterboro.� He said these flight paths are ideal in that they basically run north and south.� He said if the winds are out of the north, the pilot would come in from the south and he would use the south flight path to land and then take off to the north.� He said there is a curve in a flight path called a dog leg and that is just to keep the helicopter over the golf course because there are homes in that area. Mr. Davis said the south flight path the helicopter departs and goes over the industrial area until it gets to Roselle Park and it does fly over some homes in Roselle Park but that is the end of the flight pattern.� The FAA specifies the flight patterns as 4,000 feet.� He said the helicopter at that point would be approximately 600 feet above ground so he said homes in Kenilworth are not flown over.�� �

Mr. Cammarota asked Mr. Davis if there are any occasions when you deviate from that flight pattern and are the usual?� Mr. Davis said the pilot has final discretion but he rarely deviates.� He said again this is what the FAA calls Class Bravo Airspace and he is on positive radar control by the FAA at all times.

Mr. Picerno asked Mr. Davis if he found anything in his study that is a downside that we as a municipality should be concerned with?� Mr. Davis said he could not think of any downsides.

Mr. O�Connor suggested that Mr. Davis might want to speak about the location of the two telecommunication towers.

Mr. Davis said originally they thought about having a different flight path but there is a big cell phone tower in the pathway and the cell tower will have to be lighted.

Mr. Davis said the helipad is nothing but a platform and it sits on the garages columns. He said a structural engineer has verified that the garage footings and columns have enough spare capacity to support the helicopter as well as the Heliport structure. He said the DOT, as part of application, require structural calculations be submitted with the application. He said it is a steel frame structure with an aluminum deck that measures 60 ft. x 60 ft. which is the low bearing portion. He said surrounding it is a 5 ft. wide safety net that is in lieu of vertical guard rails. He said any kind of vertical guard rail could be struck by the helicopter and cause an accident so for that reason the FAA and New Jersey DOT require a horizontal safety net. He said there are sixteen little green lights which are like the blue taxi lane lights that you see in airports�only they are green and they are normally completely off.� He said there is an orange windcup that gives pilots the wind direction and approximate speed and that is normally off.� He said the lights can be turned on by the pilot up to 20 miles away so they are only going to be on for five minutes before he lands and he would shut them off right after he lands or there is a timer that would turn them off if� he should forget. He said Merck does not anticipate many night flights.

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He said the FAA defines night for flying purposes as 1 hour before the sun sets and one hour after sun rise.� He said in the middle of the winter night could be defined by the FAA at 4:00 pm.

Mr. Picerno asked how long the helicopter hovers or idles?� Mr. Davis said the pilot comes to a four foot hover over the path and touches down and then he immediately throttles down to a flight idle, just like when your car comes to a stop and your engine comes down to an idle.� He said the sound level is greatly reduced at that point and the blades are at a flat pitch so there is not much of a sound. He said because it is turbo powered with the two little jet engines with shafts that turn the rotor blades, they are called turbo shaft engines and with turbo engines you cannot shut them off immediately the way you can with a piston engine because there is a two minute cool down period and a two minute warm up period. He said some helicopters can take off more quickly but this make and model the S76 C++ and it has a two minute cool down and a 2 minute take off.�

Mr. Candarella asked how many helicopters does Merck own and Mr. Malman replied three but of course they are not going to be stored at the location, it is just for landing and take offs.

Mr. Davis said there is not going to be any fuel storage or hanger or maintenance or flight instruction at the location. He said the FAA & DOT say that because it is a dedicated landing spot it is called a Heliport but in the industry it is called a helistop. �A helistop has no maintenance fueling or hanger or overnight basing of the helicopter and that is what this is.

Mr. Malman asked Mr. Davis if in his opinion the Heliport has been designed in accordance with all the regulations and it could be used in a safe and proper manner?� Mr. Davis replied yes.�

Mr. Picerno asked Mr. Davis if his firm is a consulting firm or are they the designer and builder for the actual Heliport?� Mr. Davis said for this project we are just the consultant in fact the engineering firm that has been hired by Merck is actually one of our competitors.� Mr. Picerno asked if the concrete work and all the other stuff won�t go out to bid because it would go to someone who specializes in this?� Mr. Davis said the structure above the garage columns would go to a specialty company of which there are only two in the United States.� He said any demolition for example all the light poles will be lowered and the fixtures will be changed so that the lighting will be down so it doesn�t glare in the pilots eyes.� He said the heliport is a steel framed aluminum deck specifically designed for heliports.�

Mr. Candarella asked who will regulate the lighting and the parking is it the FAA who will make sure it is a safe heliport. He said this board would never have thought about lowering the light stantions.� Mr. Davis said the lights would have been an obstruction because the flight path does not go straight up, it goes forward and upward.� He said the FAA has a flight profile which the helicopter goes forward and upward at a slope of 8 to 1.�

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Mr. Picerno asked if the helicopter�s communication would interfere with cable, fios or cell phones?� Mr. Davis said if there was a microwave tower right next to the garage and the helicopter flew right past the tower that could block the signal, but there isn�t.

Mr. Tobia explained the two variances.� He said on the parking variance there is a net reduction of 24 stalls.� He said the required number of stalls shown on the plan where we broke down each and every building by all your zoning requirements for parking works out to 3092 parking stalls.� The facility has never had anywhere near that.� He said right now the tally is 4,375.� He said if you remove all the stalls under and around the helipad to net reduction of 24 the requested condition is 4351 stalls. He said on-site parking requirements are sought by planners to make sure a site can function and handle it�s own parking without overflow parking on the streets.� He said this exiting parking deck has seven floors and when you drive through the first three decks you will see fully occupied parking spots and when you get to the fourth deck you will see � of the deck occupied and the remainder of the fourth deck, the fifth deck, the sixth deck and the seventh deck are all empty.� He said they have looked at this on different days of the week and at different times of day and there is no question that the parking deck is seriously underutilized. He showed a photograph (12A) that shows all of the stalls nearest to the proposed helipad (50 stalls) and they are all empty. He said when you drive through the complex there are surface parking lots and they have estimated that routinely there are about 200 empty stalls at these lots, especially at the main building which is K-2 where they estimated about 150 empty stalls every day.� He said there is an abundance of parking on the site and if push came to shove and somehow they needed more spaces, they could park under the helipad but that is a distinct long shot.� He said as a consequence he thinks the parking variance is reasonable and relates in no detriment to the public.� He said you are never going to see Merck employees parking on residential side streets.�

He said the height variance requested is 73 feet and the zone permits 50 ft. for principal buildings. He said the accessory structures also have height requirements which is probably more for your residential zones but it�s 15 feet, which is probably for garages and shed and they need a variance on that condition.� The proposed condition of 73 feet does not worsen the height of the overall structure.� He said anytime you have a non conforming building and you make it more non conforming, you need a variance which is a proper analysis. This building at it�s highest point is 80.3 feet and the new structure gets up to 73 feet but it does it over a microscopic section of the building. He said four other main buildings including office buildings, research buildings and sales buildings are all above the 73 feet as well. He said the reason there are height controls is to make sure that buildings don�t loom over other buildings. He said if someone builds a 50 ft. home next to a cape cod, the neighbor is going to go bananas because it will be blocking sun and light and that is why we have height restrictions. He said this takes place 1500 ft. from the nearest property line toward Roselle Park and there is no chance that anyone will see it from off site.� He said in the winter with foliage down when you are driving on the Parkway you can see the parking deck and the helipad.� He said the visual intrusion of this, therefore, should be minimal. He said there are less expensive places on the site to build the heliport but they chose the most desirable site from a safety and design standpoint which happens to be on top of a building but they think that is

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justifiable.� He said he thinks it is a reasonable variance and microscopic in impact and he said it should work just fine.

Mr. O�Brien said that should the Board be favorable inclined on this application, he would make a few suggestions.� He said that the applicant has stated that they average two flights per day at the other locations and they can expect that here. He said the Board may wish to consider placing the limit on the number of flights on an annual basis, averaged out daily and whether or not they want to stick with the two that they have suggested or give some wiggle room and go to three a day and let that be averaged out over an entire year to make it fair for when they have certain events going on that they need more flights on a particular day and less on another.� He said the hours of operation 7:00 am to 7:00 pm seems to be reasonable with the appropriate language that our attorney would put in concerning urgent matters or emergencies.� He said another condition of the approval would be that the applicant would allow emergency use by the appropriate authorities, medical, police or otherwise. He said another condition should be that the Police Department and Fire Departments be consulted when the helistop is constructed and shown how it works and also that they should be in contact with each other so that they are all aware of what is going on.� He said the Board should define the helistop because Mr. Davis has pointed out that there are different definitions on the part of DOT as well as an industry standard.� He said the applicant meets the burden of proof for the variances and if the Board does not have a problem with the preliminary and final site plans, he said the Board should approve this application.

Mr. O�Connor said there are no site issues associated with the application.� He said the applicant is proposing to put in a oil water separator on site which would basically be a containment in the unlikely event that fuel spilled.� Having a oil water separator would probably be the least of their worries if there was a leak but they are providing for that contingency, they just need to put a detail on the plans to show how they are connecting it to their existing storm/sanitary sewer system to dispose of it or whether they are proposing it as a stand alone unit that will be pumped out in the unlikely event that it collects.� The lighting provision on the deck should be reviewed for the Borough standards but the lighting in that area is fairly extensive to begin with and dropping the light standards down should be absolutely no problem at all. He said the use of the �shoebox� type downward projection fixtures is more than appropriate because of the use and to keep the glare from impacting either the pilot or surrounding areas.� He said there are no other issues associated with the plan.� He said the applicant has a noise expert and he does not anticipate there being a noise issue associated with this particular type of use at this type of location.� He said if you take a noise here and second noise, they don�t add together into one great big noise.� He said it�s not a two plus two equal four type thing.� He said given the proximity to both the industrial operation and the Parkway it would be very difficult for a noise of short duration to create� problems or violate Federal or State standards.� He said in this case the helicopter is less noise then a freight care running by the building.

Mr. Picerno said the applicant has a oil/water separator plan that has been discussed but it is not in the plan?� Mr. O�Connor said they have shown a physical location of an oil/water separator on their plans.� Mr. Picerno asked if that would be the only type of maintenance in order to facilitate any type of an emergency clean up of fuel or oil?� Mr.

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O�Connor said they are providing for a series of drainage dumpers around the edge of the helistop and that will drain to the oil/water separator.� He said their normal flow of water will go through this device and discharge.� He said there is also a containment in the unlikely event there is a spill.� He said they just need to provide the detail of that on the plan.� He said there is a note that says it is there.� He said ultimately there would be a plumbing permit from the building department for that.�

Mr. Lepore said he is sure there are procedures that are going to be in place in the event of a problem but he asked that a copy could be forwarded to our Police Department and our Fire Department.� Mr. Malman replied yes they would develop a dialogue with the Police and Fire.

Mr. Malman said he would like to address some of Mr. O�Connor�s comments.� He said most of the conditions there are no issues.� He said a detail view of the oil/water separator is fine, providing lighting detail per Borough standards is fine, the only problem is the FAA and DOT may control the kind of lights they have but certainly they are willing to work with the Borough standards.� They agree there is no fueling, no storage of helicopters.� He said the DOT calls it a heliport but if you want to call it a helistop because effectively it is going to be a place for a helicopter to come in and take off, not storage, no overnight, no fueling and if you want to stipulate that in the Resolution, they have no issue with that.� He said talking to the Police and Fire about this, they will certainly keep them advised as Merck does with other local authorities.� He said allowing emergency vehicles or procedures to be used is fine.� He said the two things he had concerns about were the conditions on the number of flights and the conditions of the hours.� He said that at the other facilities they do not have anything like that and they have represented the typical number of flights. �He said there is no reason for Merck to fly at 3 or 4 in the morning but he said it is possible that there could there be an emergency.� He knows that from looking at the Rahway operation there were a handful of times where there were flights beyond the hours they talked about, but to say they have to have a certain number of flights or conditions is something they don�t typically do and it would be hard to monitor.� He is asking that the Borough trust them on that and he suggested to the Borough that they are a good corporate citizen. He said if they had to fly outside the parameters, it would be for a very good reason. He said it may not be an emergency in the sense that there is a crisis, it could be an important meeting. He asked that there be no restrictions regarding those two issues.

Mr. Lepore asked how it will affect Kenilworth because the Boulevard and the Parkway traffic is very heavy during rush hour.� Mr. Malman replied that the Rahway location of Merck is close to Route 1 and the heliport sits close to Rt. 1 and also the Linden Airport is also in the area and it is not uncommon to have helicopters fly over major thoroughfares. Mr. Lepore said flying over and landing are two different things.�

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Mr. Norman Dotti, Russell Acoustics, LLC, was sworn in by Michael Tripodi.

Mr. Dotti said he is a licensed engineer in New Jersey who specializes in acoustical engineering for the past 39 years.� He said he filed a report with the Board regarding the proposed helipad. He said he analyzed the site for the proposed use.� He has done many helicopter operations around the state and the country.� He has measured sound from helicopters and specifically he has measured sound from this model many times.�

Mr. Picerno asked what is the noise decibel at 600 ft. and how is that in relationship to the noise level to the people at ground level?�

Mr. Dotti said those are two very common questions.� He said a helicopter makes more sound on landing then it does at takeoff. �He said at 600 feet for the S-76 on approach you are looking at about 82 decimals and 80.3 decimals on take off.� He said he submitted a table in his report where he actually did calculations for specific locations on the ground and those two numbers are consistent with that. He said a few weeks ago he did a noise study in the residential area by setting up environmental noise monitors that ran Sunday, Monday and Tuesday. He said in all the residential areas that he measured the sound 24 hours a day and the maximum sounds measured were louder than a helicopter sound.� He said the sound of a helicopter is comparable to a truck driving by.� He said a modern business helicopter does not make the sound that people think it does.� He said the duration of an S-76 is approximately 15 seconds. If you are standing outside and it is out of the distance, from the time you first even hear it to when it is on the pad is one minute.

Mr. Cammarota asked if the noise from helicopter comes from the engine or the revolutions of the propellers. Mr. Dotti said there are multiple sources, the principal one is the main disc which is the big thing that goes around.� He said the older style helicopters have two blades �and modern business helicopters have four much wider blades and that cuts down on the sound. He said the main disc is the principal source of sound and the tail roter is another source of sound as well as the engine exhaust.� He said the modern business jet powered helicopter doesn�t sound like the older styles.

Motion was made by Mr. Candarella, seconded by Mr. Cammarota to open the Meeting to the public.� All in favor.

No one wished to speak.

Motion was made by Mr. Sica, seconded by Mr. Candarella to close the meeting to the public. All in favor.

Mr. Malman asked the Board to approve the Site Plan and Variance applications with the conditions that were spoken about.

�

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Mr. Tripodi said he would like to add a few things that were mentioned before and it is in Mr. O�Connor�s report about the developer�s agreement maintaining the helistop and also one about providing the structural calculations to the building department and the lighting and the standard condition about all the other approvals. Mr. Malman replied he has no objections with those items.

Motion was made by Mr. Candarella, seconded by Ms. Bogus to accept the application with a couple of contingencies that were specified by the engineer such as the oil and water separator and also that they meet the requirements of the helistop as defined by Rich O�Connor and that they stay in contact with our Police and Fire & Rescue Departments.

Roll Call:� Mr. A. Pugliese, Mr. Sica, Mr. Picerno, Mr. Herbert, Mr. Candarella, Ms. Bogus, Mr. Lepore all voted yes.

The meeting adjourned at 9:35 p.m.

Respectfully submitted,

Kathleen Jean Moschitta