FREEHOLD TOWNSHIP ZONING BOARD OF ADJUSTMENT MINUTES JULY 27, 2006 Chairman McCloskey called the Zoning Board of Adjustment meeting of to order at 7:30 p.m. He read the notice of the Open Public Meetings Law and the Sworn Testimony announcement. There was a salute to the flag. Present: Absent: Also Present: Mr. Apostle, Mr. Elowitz, Mrs. Ferdinando, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey Mr. Rogove Dennis Galvin, Esq., Guy F. Leighton, Senior Planner and Nancy Torre, Administrative Officer Minutes: A motion to approve the minutes of June 22, 2006 was made by Mr. Walker, seconded by Mr. Decker and passed with the following members voting in favor of the motion: Mr. Elowitz, Mr. Apostle, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey. Resolutions of Memorialization: Application #7-06 Warren & Cheryl Bradbury 52 Geisler Lane, Block 96.01, Lot 8.01 A motion to approve the Resolution was made by Mr. McCloskey, seconded by Mr. Walker and passed with the following members voting in favor of the motion: Mr. Elowitz, Mr. Apostle, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey. NEW APPLICATIONS: Application #9-06 Andrew & Jennifer Montano 2 Andrews Court, Block 93.03, Lot 32 Variance to construct a 24' x 24' cabana. Andrew Montano appeared and was sworn. He explained that he is putting a hot tub in his back yard and putting on a porch and a cabana. He said half will be enclosed and half of it open.
Page 2 Mr. McCloskey said the structure would be in the back yard half will be enclosed and will have a hot tub in it. shed. Mr. Montano said yes the hot tub will be outside. He said the inside part is a Mr. Elowitz asked if the existing shed will come down. Mr. Montano said yes. Mr. Leighton asked if he will keep the existing landscaping. Mr. Montano said probably not. Mr. Leighton said the reason he was asking is that the existing shrubbery really hides the shed. Mr. Montano said he would do something else and that the shed will have the same siding as the house. Mr. McCloskey asked him if he was aware that the cabana could not be higher than sixteen feet. Mr. Montano said his contractor is. Kevin J. Stone, Contractor appeared and was sworn. He stated that the height would be less than sixteen feet. He also said the 24' x 24' includes the overhang. He said it is actually a 20' x 20' structure. Mr. McCloskey asked if there is a two-foot sofit all around. Mr. Stone said that is correct. Mr. Elowitz asked if he would ever enclose the whole structure. Mr. Montano said no. Mr. Hassell asked if there would be water to the structure and how he will fill the hot tub.
Page 3 Mr. Montano said with a hose. Mr. Decker asked if he would be open to a deed restriction on enclosure and water so that in the future it does not become an apartment. Mr. Montano said he wouldn't do that. Mr. McCloskey explained that a deed restriction stays with the home so it can't be made a livable space. Mr. Montano said he would agree to that. Mr. Elowitz asked if there would be any shrubbery between the cabana and the neighbor. Mr. Montano said yes he would probably surround the back and one side. He also said it will be the nicest looking shed in Freehold. Mr. McCloskey asked if there were any other questions from the board or the public. Mr. Decker asked if his neighbors were okay with this. him. Mr. Montano said they laughed when he asked them to sign and that they love Mr. McCloskey asked if there were any questions from the board or the public. No one wished to speak and that portion of the hearing was closed. A motion to approve Application #9-06, Andrew & Jennifer Montano, 2 Andrews Court, Freehold, New Jersey with conditions was made by Mr. Decker, seconded by Mr. Nero and passed with the following vote: Mrs. Ferdinando, Mr. Elowitz, Mr. Apostle, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey. Mr. Apostle recused himself from the last two applications.
Page 4 Application #10-06 Wemrock LLC 119 Wemrock Road, Block 69.01, Lot 33 Use variance to construct a 16,000 sq. ft. office building. William J. Mehr, Esq., Mehr, LaFrance & Williams appeared on behalf of the applicant. Michael Geller P.E., P.P., also a certified Municipal Engineer, Geller Sive & Company, Adelphia, New Jersey appeared and was sworn. He gave his credentials and they were accepted. He presented exhibits and they were marked. He explained that this is a bifurcated application. He described the site and stated that both roads are major collector roadways. He said the site is irregularly shaped and about 377 feet at its front and 106 feet in the rear. He also said the greatest development portion of the property is where the house is. He explained that the property is not occupied at this time and is in a state of disrepair. He said the property is in the HC (Historic Commercial) zone, which permits single-family dwellings in accordance with the R-80 requirements, farms (require five-acre minimum) and farm stands. Mr. Mehr asked if the property meets the five-acre minimum. Mr. Geller said no. He described the zoning in the area. Mr. Mehr asked what is the proposed development. Mr. Geller stated the proposed development calls for the construction of a twostory office building, totaling 16,000 square feet. He said it will have parking for sixtyseven cars, which meets the requirements of the ordinance. He said this is a use variance, a bifurcated application so conceptually the predominant area of the lot falls in a southerly direction and that would be the logical place to manage the storm water. He also said to the northwesterly portion of the site there is a proposed septic system. He explained that there is access proposed from Wemrock Road opposite Wemrock Orchards exit driveway. Mr. Mehr said there is also another driveway that leaves Wemrock Orchards. Mr. Geller explained that there is also a driveway that would be a right in and right out so only traffic traveling easterly on Route 33 could enter and traffic exiting the site could only turn right. He said because this is a signalized intersection the DOT would not allow a left turn so close to the intersection. He stated that the considerations given to the layout presented shows the building where it is desired to be because it is
Page 5 fairly close to where the existing home is and takes advantage of being on the knoll close to the top of the hill of the property. Mr. Mehr said this is also the location that pushes the building furthest away from the only other residence close by. Mr. Geller said the only other site consideration was the requirement in the HC zone of a fifty-foot scenic corridor buffer. He said the scenic corridor for all intents and purposes is being preserved with the exception of the two access driveways and a portion of a not yet designed detention basin. He also said another consideration given was to provide sufficient parking, situate the use as far from the existing adjacent residence as possible, allow for a dedication at the corner that would make right turns easier and also a dedication of width along Route 33 in accordance with the Township and State master plans for improving traffic circulation. Mr. Decker asked if any attempt was made to acquire additional land. well. Mr. Mehr said there really isn't spare property and actually it fits on the site very Mr. McCloskey stated as Mr. Decker said was any attempt made to acquire property. Mr. Mehr said they have not made an attempt to buy it because of the fact that in itself the lot is conforming. Mr. Geller said as far as the use variance goes buying the property would not change things. He explained that they are proposing office use in the HC zone and read the requirements for the zone. He discussed the variances required and the requirements of the zone. A discussion followed regarding the HC and P-2 zones. Mr. Nero asked about a commercial use next to a residential zone and the required buffer between them. Mr. Geller said they are proposing fifteen-feet around the perimeter as a buffer that can be used for screening plantings. Mr. Leighton said the HC zone requires a thirty-foot buffer. He said he feels the foot note regarding the P-2 zone should have been removed he believes it was an error.
Page 6 Mr. Hassell said we have an HC zone with certain requirements and one is a thirty-foot buffer. He also said because of the footnote in the bulk standards we are not adhering to the HC zone we are using the P-2 zone. He said what they have to do is accept their argument that the HC doesn't apply here the P-2 zone does. Mr. Galvin stated you are the interpretive body of this ordinance. He said another way to view this is the HC zone doesn't really provide for offices but they are going to make an argument as to why you should consider a use variance. He also said if you grant a use variance they are suggesting that in the past the P-2 criteria has been a good criteria for office uses and that if you were to grant a use variance that they would agree to apply the P-2 standards. Mr. Geller stated what Mr. Galvin has said is exactly how he was going to respond to Mr. Hassell's question. He said listen to the use proofs and if you are considerate of the use consider the P-2 bulk criteria to go along with the use. Mr. Geller explained that the purpose of the Historic Commercial zone is for structures to look for the ambiance of the site to be Battleground State Park affiliated, aesthetics to meet colonial and early American architectural period. He said they feel that they are going to provide that in the architectural design of the site. He said offices were permitted in the HC zone prior to 2000 when they were repealed. He also said the Schedule "C" shows that when office uses are considered that the bulk requirements of the P-2 zone should apply. Mr. Geller said they believe the site is not particularly suitable for the permitted uses. He said one choice is residential and the site is at the intersection of two busy roadways and he doesn't believe it is a desirable place to develop residences. He also said the property is too small to be a farm. He said the site is suitable for the proposed use by virtue of its location. He also said the aesthetics of the site is one of the purposes of zoning. He said they are encouraging the location and design of transportation routes which will promote the free flow of traffic, providing right of way and turning radii, and adjacent to the signalized intersection that could provide the ability for this developer to widen Wemrock Road and provide for a turning lane if deemed needed by the State of New Jersey. He said they would be subject to State permits. He also said the HC zone is quite limiting when just allowing houses, farms and farm stands when two of the three permitted uses can't be achieved on this property. He said they feel the office use is suitable in the location. Mr. Mehr said in order to have a farm stand it must be affiliated with an active farm. He also asked Mr. Geller if he had any comments on the reports from the Township Engineer and Planner.
Page 7 Mr. Geller said for all intents and purposes they are site plan related comments. He said this is a bifurcated application and he would address them if he wants him to. Mr. Galvin told the Chairman he did not think that was necessary. Mr. McCloskey said he agrees and if the use variance is granted he thinks the site plan would have serious problems because of both the County and NJDOT plans for that intersection. Mr. Geller said he agrees with the Chairman that the reconfiguration of the intersection is a problem. He said he thinks when the Township changed the zone and had the opportunity to do something with the site immediately across Route 33 to the north, there were no provisions made for any taking or dedication of right-of-way. it. Mr. Hassell asked if they are the owners of the property and when they purchased Mr. Mehr said they purchased it two years ago. Mr. Hassell said they knew that the Township changed the zoning to HC. Mr. Mehr said there was some discussion with the Town about doing other things on the site and that the Township indicated they wanted to see the property developed complimentary to the historic commercial concept. Mr. Hassell said he is having a tough time understanding how a 16,000 square foot building could be historic. A discussion followed regarding Monmouth Battleground and historic buildings. Mr. Geller said the nature of the architecture and aesthetics of the site are what the Master Plan and Ordinance are looking for, more so than the use. There was a brief recess and the board reconvened at 9:10 p.m. Daniel Bach, architect appeared and was sworn. He gave his credentials and they were accepted. He described the property and said the existing buildings are in disrepair and falling down. He referred to an exhibit and explained that it will be a two-story federal style building. He said the first floor will have entrances on two sides of the
Page 8 building and those entrances are to the parking area. He said they also have a third entrance which is a portico facing Route 33. He said the building is dark red brick with large windows with cornices above them and a cornice around the top of the building. He said there will be landscaping around the building. Mr. McCloskey asked if there were any questions from the board or public. He said at this point he would ask that this application be carried for a couple of reasons. He said one is to address a comment made by the Township Engineer to reduce the gross square footage so it stays within the maximum FAR, and that a few people have pointed out that the Township Committee had some ideas as to what this property could be used for other than what is permitted in the HC zone. He said he has asked our planner to get some clarification as to what that is, so the board has a better idea why the Master Plan has what it does in it. He also said their argument so far makes sense that two of the three uses outlined in the Master Plan can't be achieved anyway. He said he thinks the board needs more information. Mr. Mehr asked if he was going to open to the public or defer it to the next meeting? Mr. McCloskey said he would defer it until we find out more information. Mr. Nero asked them to check with the board of health if the proposed septic system would be allowed if they received site plan approval. A motion to carry Application #10-06, Wemrock LLC, 119 Wemrock Road, Freehold, New Jersey without notice to the September 14, 2006 meeting was made by Mr. McCloskey, seconded by Mr. Hassell and passed with the following members voting in favor of the motion: Mrs. Ferdinando, Mr. Elowitz, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey. Application #29-05 Freehold Crossing, Inc. Route 9 and Elton Adelphia Road, Block 80, Lots 1, 2 & 3 Obtain a "d-1" use variance to allow retail use of the property. Scott Elowitz recused himself on this application. Frank Wisniewski, Esq. appeared on behalf of the applicant. He stated the property is located on Route 9 and Elton Adelphia Road, Block 80, Lots 1, 2 and 3 for a use variance to allow retail use on the property. He said there are also some other
Page 9 variances associated with the application. He stated this applicant is before the board as a result of litigation pending in the Superior Court of New Jersey relative to the zoning on the property and the rezoning of that property as a result of motions filed before Judge McGann. He said the Judge has returned this matter to the Zoning Board to make a determination whether the property does have a use by way of a variance. He said he has provided Mr. Galvin with copies of the pleadings that have brought this action back here and also a copy of the transcript of the hearing on November 12, 2004. Mr. Galvin said that two board members, Mr. Apostle and Mr. Elowitz would not be hearing this application. Mr. Walsh asked if the applicant has ever submitted an application for this property before this board? Mr. Wisniewski said no but there was one to the Planning Board. Jacob S. Elkes appeared and was sworn. Mr. Wisniewski asked him who the owner of the property is. Mr. Elkes said the owner of the property is Freehold Crossing, Inc. Mr. Wisniewski asked what is his relationship with Freehold Crossing, Inc. Mr. Elkes said he is the president. Mr. Wisniewski said the owner of the property is Freehold Crossing, Inc. and you are the president of the company. Mr. Elkes said that is correct. Mr. Wisniewski asked him about his professional and business back ground. Mr. Elkes said he is an Attorney At Law and owns a title insurance agency in Freehold. He said he has built both residential and commercial developments in central New Jersey. Mr. Wisniewski asked how long Freehold Crossing has owned this property. Mr. Elkes said since 1987.
Page 10 Mr. Wisniewski said at the time it was purchased by Freehold Crossing what was the zoning? Mr. Elkes said it was highway commercial. Mr. Wisniewski said in general retail uses were permitted in that zone. Mr. Elkes said that is correct is was a business zone. Mr. Wisniewski stated shortly after Freehold Crossing purchased the property it was rezoned? Mr. Elkes said that is correct. Mr. Wisniewski asked what types of uses were permitted as a result of the rezoning. Mr. Elkes said it was rezoned to low density office use. He said when the rezoning occurred an application was pending before the Freehold Township Planning board and was in technical review for a retail facility on the site which was in conformity with the business zone it was in. Mr. Wisniewski asked him to describe the property, as it existed in the late 1980's early 1990's. Mr. Elkes stated the property is located on northeasterly corner of U. S. Route 9 and Elton Adelphia Road. He said the Golden Bell Diner is across Route 9, the Drug Fair Shopping Center is on the Southerly side of Elton Adelphia Road, the Silvermead display area is in the southwesterly quadrant of that intersection. He said the property was originally seventeen acres and has substantial frontage on Elton Adelphia Road, and 1,300 or 1,400 frontage along Route 9 and terminates at the shopping center on Route 9 where Lee Myles Transmission is. He said to the rear of the property there is a development called Juniper Farms and these properties abut to the East. He explained that the State has taken a portion of the property and constructed a jug handle on it which enables north bound traffic on Route 9 to go west bound on Elton Adelphia Road. Mr. Wisniewski said that taking by the State Department of Transportation happened after the rezoning took place. Mr. Elkes said yes it did.
Page 11 Mr. Wisniewski asked what he has done since the property was rezoned in an effort to try to have the property used in accordance with the zoning that he indicated is low density office. Mr. Elkes said since the acquisition in 1987 and the subsequent rezoning in 1988 they have attempted to market the property both for sale and for lease for various uses that would be permitted in the zone such as, restaurants and office uses. He said everyone has come back and said only if there is a retail component on that site or they have no interest whatsoever. Mr. Wisniewski asked him to explain the proposal that is before the board. Mr. Elkes said the proposal involves the use of a pad just north of the jug handle for a pharmacy, to the north of that a bank and then in the northeasterly corner of the property a retail building approximately 30,000 square feet. Mr. Wisniewski stated the bank is a permitted use and the others are not. Mr. Elkes said that is correct. Mr. Wisniewski asked why he thinks this proposal is viable for the site. Mr. Elkes said the property is surrounded by numerous retail uses. He said it is also a controlled intersection, which is a feeder to 195 going to the west or the parkway to the east, and has a very large component of residential use behind it, which would benefit from having the shopping center. Mr. Wisniewski asked if he has had discussions with pharmacy and bank uses for this location. Mr. Elkes said yes he has but the bank that would like to come in on this site will not come in unless the pharmacy comes in with it. Mr. McCloskey said you mean the bank won't come in without both the so-called strip mall and the drug store. Mr. Elkes said no, the bank won't come in without the drug store, they would like the retail use. Mr. McCloskey said he understands he just wanted to define that the bank would not come in without either one of the proposed retail uses.
Page 12 Mr. Elkes said it is the pharmacy that is conditioned into the lease. Mr. Wisniewski explained that there are three phases to this application: the first phase is the pharmacy and the bank, the second phase is the 30,000 square feet and the third phase is the additional 12,375 square feet of retail to come on site. Mr. Hassell asked if there was any office space proposed for this property. Mr. Elkes said not at this time. Mr. Nero said for clarification, the application we are talking about tonight is just for the variances, is this a bifurcated application? Mr. Wisniewski said yes, if use is granted we would submit a site plan. Jeffrey Spalt, PE, appeared and was sworn. He gave his credentials and they were accepted. He referred to exhibit "P-14" an aerial photo and described it. He said there is currently an active Letter of Interpretation from DEP that was issued December 28, 2004. He said the net land area after you subtract the wetlands and the buffers is ll.7 acres. He said there is approximately 3 acres of wetland area at the southeast end. He discussed the grading, layout and various phases. Mr. Wisniewski asked Mr. Elkes what the intent for Phase II retail and Phase III. Mr. Elkes said neighborhood type of businesses (dry cleaners, Starbucks, etc). He said it was zoned B-10 in 1988 and rezoned. He said when they submitted to the planning board it was a conforming application. Mr. McCloskey asked if he thought office space was a loser for this site. Mr. Elkes said the demand for office space in the area is weak. Mr. Hassell asked if he had any discussions with the Township regarding municipal parking for commuters. Mr. Elkes said when the jug handle was being designed the Township had a discussion with NJDOT about using the core of the jug handle. He said the Township wanted to reserve the parking for municipal residents and the State said as long as they were paying for the land such a reservation would be unacceptable. Therefore anyone could park in the space if they paid a fee or had a permit. He said the jug handle was then brought to highway standards and that is what you see today.
Page 13 Mr. McCloskey said before we get into public discussion since a number of those questions would raise others he would rather defer that until we have sufficient time so that they can have their questions explained and answered in full. He said the application would be adjourned to a future date. A motion to carry Application #29-05, Freehold Crossing, Inc., Route 9 and Elton Adelphia Road, Freehold, New Jersey without notice to the September 14, 2006 meeting was made by Mr. McCloskey, seconded by Mr. Hassell and passed with the following members voting in favor of the motion: Mrs. Ferdinando, Mr. Elowitz, Mr. Walsh, Mr. Nero, Mr. Decker, Mr. Walker, Mr. Hassell and Mr. McCloskey. ADJOURNMENT: A motion to adjourn the meeting was regularly made, seconded and passed. The meeting concluded at 10:35 p.m. Nancy Torre Administrative Officer Edward W. McCloskey, Chairman Zoning Board of Adjustment