Planning Board Minutes from 09/28/2006

Borough of Kenilworth

567 Boulevard

Planning Board Minutes

September 28, 2006

The meeting began with an affirmation of the Open Public Meeting Act requirements and the Pledge of Allegiance.� The Minutes from July 27, 2006 were approved.� Approval was given to pay the Recording Secretary and the Board Attorney.

Roll Call:� Present:� Mr. Cirillo, Mr. Michitsch, Mr. Beninati, Mr. Corcione, Mr. O�Malley, and Mr. Schielke.�

Absent:� Mr. David, Mr. Soos, Mr. Peters, Mr. Candarella, Mr. Pantina, Mr. Laudati, Mr. Russo was recused as Medina is a use variance.

Mr. Fraser asked Mr. Beninati to read a letter the Borough received regarding an application from Fresh Water Wetlands General Permit Number.� The letter was sent to inform the Borough that an application is being submitted for a permit approved by the New Jersey Department of Environmental Protection. Block 402, Lot 1.� Mr. Beninati advised Mr. Fraser that this was a Springfield piece of property.

Resolution:� Application #26-06, Martins, 747 Newark Avenue, Block 48, Lot 17, a variance/2nd floor addition/pre-existing insufficient side setback. Mr. Michitsch made a motion to accept the resolution, 2nd by O�Malley.� All in favor: Mr. O�Malley, Mr. Corcione, Mr. Beninati, Mr. Michitsch, Mr. Cirillo.

Resolution: Application #25-06, Gassmann, 44 So. 20th Street, Block 115, Lot 8, denial of variance to construct new front porch. Mr. Michitsch made a motion to accept the resolution, 2nd Mr. Schielke.���

New Business

Application #31-06, Medina, 433 Boulevard, Block 111, Lot 1, change of use/Real Estate office in R-2 zone. Sworn in:� Mr. Medina. Mr. Fraser explained to Mr. Medina that this application requires five affirmative votes from the board, irrespective of the number of members constituting a quorum. If five members are present, applicant needs five affirmative votes. If there were six members present applicant needs five affirmative votes and if seven members were present he would require five affirmative votes. Mr. Fraser also advised Mr. Medina that he has a right to postpone his hearing because there are only six members of the board present. Mr. Medina advised he would like to proceed.� Mr. Medina asked Mr. Beninati if he had the receipt for the public notice and Mr. Beninati replied he has all the receipts. Mr. Medina advised that he is trying to change the existing dental/doctor office to a real estate office. Mr. Medina advised that there would be less traffic coming in and out of his office then there was with a dentist office. He advised that his clients come in to sign contracts and are in the office for a less amount of time then clients that come to a dentist�s office.

Page 2

� Mr. Cirillo asked Mr. Medina if he intended to have six offices and if he intended on renting the rear part of the building.� Mr. Medina replied that he will have six offices and one residential tenant. Mr. Fraser asked Mr. Medina if he contemplated occupying the real estate portion of the premises himself or does he intend to have a tenant? Mr. Medina asked that if the property is deemed for �professional use� he can have an office and a tenant but if the property is marked for �commercial use� he would need to occupy the apartment. Mr. Fraser responded by stating there is a residential tenant in a portion of the building and an office in the other part of the building. Mr. Fraser asked Mr. Medina if he intends to leave the residential tenant where he is now and if he intends to convert the office space, which had previously been approved for professional use, to a real estate office. Mr. Medina replied yes.� Mr. Fraser asked if the real estate office part of the building was going to be used by Mr. Medina or does he plan to bring a tenant in to rent that space.� Mr. Medina replied that was true, he would be occupying the business portion of the premises and has one tenant. Mr. Michitsch asked Mr. Medina if that will be a residential address and Mr. Medina replied yes. Mr. O�Malley stated to Mr. Fraser that the office had been vacant for quite a length of time.� Mr. O�Malley asked Mr. Fraser that the original variance was for a home office use and once that has been vacated, what is it now? Mr. Fraser replied that it is a sliding scale type of question. The prior variance, which was granted for home-office use, was for home-office use that was ancillary to the person residing there as well as opposed to an outside person.� Mr. Fraser did not think the prior approval would have allowed a dentist office to move out and bring in a residential tenant and continue to occupy that dentist office as a dentist office. Mr. Fraser�s opinion is that the character of having a separate dentist office, other than the person residing there, is a different use and he would view that use as having been abandoned.�� The dentist is gone and they have brought in a residential tenant who is not utilizing the home office. A strong argument can be made that the right to use the property granted by the earlier use variance, as an ancillary home office, may well have been extinguished. Mr. Michitsch commented that the variance was specific for the use of a dental office.� Mr. Fraser responded that if the space was being utilized by a different kind of doctor, that might be close enough that the prior variance might allow that but clearly where there is no relationship or unitary interest between the person occupying the residential portion and business, that is a clear cut differential.� The difference between a dentist office and a real estate office is substantially different enough that you can�t say it is the same thing. Mr. Michitsch commented that the prior variance was predicated on a hardship case because the tenant had children and wanted to stay there.� Mr. Fraser responded by saying that if that dentist had sold to another dentist who did not have children, he did not know that he would be in a position to say that was not a continued use. Mr. Beninati commented to Mr. Fraser that the code specifically states what a professional office is and a real estate office is not considered professional. Mr. Schielke asked if this was a two family house with commercial use in it.� Mr. Beninati responded by stating it is a one family house. Mr. Schielke asked Mr. Medina if he had a residential tenant living there and if he intends to run the real estate office?� Mr. Medina replied yes. Mr. Schielke asked Mr. Medina if this was going to be his home address.� Mr. Medina responded by saying it is his understanding that if the use application is for commercial use then he would have to be the tenant, if it is professional use then he does not have to reside there. Mr. Fraser asked Mr. Medina if he is asking for permission to allow the tenant to remain in the residential portion of the premises and for himself, who is unrelated to the tenant, to conduct business in the prior office portion of the premises. Mr. Medina replied yes.

Page 3

�Mr. Fraser asked Mr. Medina if he had a back up plan. Mr. Medina stated that if it is required to be owner occupied then he would have to ask the tenant to vacate.� Mr. Fraser asked Mr. Medina if his backup plan was that he will move into the residential part, ask the tenant to leave, and still conduct your business in the office portion of the premises. Mr. Medina replied yes. Mr. Medina stated that he was not planning on doing any construction on the property at this time.� Mr. Michitsch asked Mr. Medina how many people will occupy the real estate office. Mr. Medina replied there will be one three full time and three part-time, the part time workers will come after 5:00 pm� Mr. Michitsch asked if that included a receptionist. Mr. Medina said there would also be a receptionist.� Mr. Michitsch asked Mr. Medina if he had enough parking spaces. Mr. Fraser asked how many on-site parking spaces are provided and if the employees will park on site.� Mr. Medina stated there is a two-car driveway which would fit 4 cars, two spaces for the tenant and two spaces for himself. Mr. Fraser asked Mr. Medina if the board were to grant the relief he is requesting and he has four employees who are present, not counting any visitors or customers, will he already have two cars parked off-site before the first customer gets there? Mr. Medina replied that is correct. Mr. Schielke asked if the three agents and one receptionist include himself.� Mr. Medina replied yes. Mr. Fraser asked Mr. Medina if he had any evidence to provide to meet either the positive or negative criteria under the municipal code.

Mr. Fraser asked Mr. Cirillo to ask the public if they had any questions for Mr. Medina.

Resident asked Mr. Medina what the hours of his business will be and will they ever extend past 8:00 pm. like for people who need to do a closing?� Mr. Medina stated the hours are 9:00 am to 8:00 pm, seven days per week and that people usually have the closing at the attorney�s office.

Mr. Cirillo opened the meeting to the public.

Mr. Rich Falcetano, 11 South 17th Street was sworn in.� Mr. Falcetano stated that his property boarders the applicants property. Mr. Falcetano stated that he paid the appropriate prices for his property to be in a residential zone and there was no real estate office there when he bought the property. Mr. Falcetano stated that granting this variance will introduce business usage into a residential neighborhood.� Mr. Falcetano stated commercial property devalues residential property.� He also feels that granting this variance will create problems with parking, traffic and safety issues. The dentist office created parking problems. Mr. Falcetano stated that the notice said that the property was being converted from a dentist office to a real estate office. Mr. Falcetano stated there has not been a dentist office on the property for three years and there have been two owners since the dentist occupied the property.� Mr. Falcetano also stated R 2 Zone since 1999 does not allow any type of office and as of 1999 the previous dentist office was none conforming use.� The requested usage is not beneficial to the surrounding properties in the neighborhood and it would be unfair to allow the applicant to have a real estate office.� Mr. Falcetano showed the board a picture of the parking situation last Wednesday at 10:30 am.� Mr. Fraser asked Mr. Falcetano if he took the picture and he replied his wife took the picture. Mr. Falcetano stated that 10:00 am is not the worst part of the day for parking, 3:00 when Harding School gets out is the worst.

Page 4

Mr. Barbara Macecsao, 15 South 17th Street was sworn in. Mrs. Macecsao stated that the existing variance should have dissipated since there were other people that moved in and out of the property. She also stated she believes there would be a security issue as well as parking issues. Mrs. Macecsao stated that dentists and real estate offices have different hours and� the length of time clients are in the office differs in that people are in and out of dentists office in � hour and for a real estate office� they can spend hours looking at properties, etc.

Mr. Dennis Panchyshyn, 20 South 17th Street. Mr. Panchyshyn stated that he agrees with the previous speakers regarding the property value of houses going down with a real estate office in the neighborhood.� The biggest problem is the parking and the parking will be horrendous if a real estate office is on the street. Mr. Panchyshyn believes the neighborhood should stay residential. Mr. Panchyshyn stated that the notice that was sent by Mr. Medina stated that the hearing was at 8:00 and that was not true. Mr. Beninati responded that it was not Mr. Medina�s mistake regarding the time; it was the planning boards� mistake.� Mr. Frazier stated he was not aware of the time issue. He wanted to observe for the record that it is now 8:06 pm so if� any member of the public received notice that said 8:00, the hearing is still continuing and any such person who received 8:00 notice would have notice to be here by now so therefore there has been no present prejudice.

Mr. George Macecsao, 15 North 17th Street was sworn in. Mr. Macecsao stated that he has had to call police because people are blocking his driveway. His family has to park � block away from his house because they cannot park on the street. The Vet around the corner causes parking problems, the traffic from the school causes problems. If this was a continued variance he could understand it but to apply for a totally different variance he cannot understand.� Mr. Macecsao stated there is a big difference between a dentist having a home office�� where one person is working and a real estate office where 5 or 6 people working at the same time.

�Mr. Lenny Kaveberg was sworn in.� Mr. Kaveberg stated that he has been a tenant at the property for seven years.� When the previous dentist was there he employed, himself, another dentist, 4 assistants and 3 people who made teeth so approximately nine people worked out of the property at the same time.� The problem with the parking was not so much from the dentist office, it was from Harding School. After 9/11 they did away with parallel parking in front of Harding School and that has caused major parking problems on the street. The Animal Hospital�� also adds to the parking problem.� Having a real estate office is not going to change the parking problem. The parking problem will stay horrendous whether or not it is a real estate office. With a real estate office you have three or four cars parked all day. With a dentist office you had nine employees and many many people coming in and out all day long.� Also Mr. Medina mistakenly said that he had only two parking spaces and in reality he has three parking spaces because the driveway holds six cars, three for him and three for me. The main parking problem comes from the school and animal hospital and a little bit from the church. Mr. O�Malley asked Mr. Kaveberg if he had a lease with Mr. Medina. Mr. Kaveberg replied he had a lease with the previous dentist and does not have a lease with Mr. Medina.

Mr. Rich Falcetano said the best thing that could happen for the parking problem is to return this property to what it was supposed to be, a residential single family property.

Page 5

�That is what the town wanted it to be and that is what the zoning ordinance calls for and that would be the best thing for the neighborhood. The last usage of that space was as a residence, between Foreman and Medina that space was being used as a residence.

Mr. Lenny Kaveberg asked if the picture that was given to the board was from last Wednesday. The Board replied yes, it was from the 20th. Mr. Kaveberg stated that the pictures shows the parking is bad and the real estate office is not even there yet

Mr. Fraser suggested to the Board that things were getting cumulative and repetitive testimony by people who are making the same argument on both sides.

Mr. Cirillo stated last call and closed the meeting to the public.

Mr. Michitsch stated that that area is not suitable for a business for various reasons such as it is a residential area.� The former resident did have a variance but that variance has expired.� Mr. Michitsch stated he would like to see the property returned back to a residential area.

Mr. Michitsch made a motion to deny the variance for change of use/Real Estate office in R-2 Zone.� Upon roll call, all in favor. Mr. O�Malley, Mr. Corcione, Mr. Beninati, Mr. Michitsch, Mr. Cirillo and Mr. Schielke.

Other Business

Mr. Cirillo stated that the Air-Conditioner Ordinance that the Planning Board may be recommending to the Mayor and Council.

Mr. Michitsch stated that presently the Ordinance in the Borough does not permit air conditioners on the side yard in residential areas. Residents have come to the Board for variances to replace air conditioners inside yards because of various reasons. The Board generally does not deny these variances and it takes up the time of the Board needlessly. Mr. Michitsch is proposing that air conditioner units be allowed to be placed in side yards provided they do not encroach into the setback... The air conditioners would have to be outside the 5 feet of the side yard setback. The unit has to be screened by some kind of fencing or bushes; it cannot be seen from the street.� Mr. Michitsch spoke with an engineer and the air condition units they sell today are all below 80 decibels, which is a little more than a refrigerator. A proposal is being made that the decibel level on an air conditioning unit be below 80 decibels. When the applicant comes before the Building Department for a permit, they must specify via the specs that the air conditioning unit has a decibel level less than 80. Mr. Michitsch also stated that on a corner lot it would not be appropriate to place the unit on the street side. The units must also be placed on a solid concrete pad or a rubber pad.� Mr. Beninati stated that he is favor of the resolution for the noise level of air conditioners but he asked how you measure the noise level. Mr. Beninati stated there are second hand units being installed and it would be difficult to measure the noise level without the specs. Mr. Beninati stated that if someone contests the ordinance on noise levels, the Building Department should be able to verify the noise level. Mr. Michitsch stated that most units being sold now are between 70 and 76 decibels.

Page 6

�Mr. Michitsch stated that the Building Department would have to work out how they would measure noise levels. We had a similar problem in measuring the height of buildings. Mr. Michitsch suggested the Building Department should buy a noise meter.

Mr. Cirillo stated that this is only a recommendation to the Mayor and Council; we do not have the authority to pass this as an ordinance.

Mr. Fraser stated that he drafted and circulated the proposed ordinance

Mr. Michitsch made a motion to accept the proposal and recommend it to the Governing Body, 2nd by Mr. O�Malley. Upon roll call, all in favor. Mr. O�Malley, Mr. Corcione, Mr. Beninati, Mr. Michitsch, Mr. Cirillo and Mr. Schielke.

Old Business: Application 30-06/Pellino, 170 So Michigan Avenue, Block 132, Lot 9 � Variance/addition and deck on corner lot. Mr. Beninati stated that at the last meeting we gave them until tonight to have architectural drawings.� Mr. Beninati spoke with the applicant and they advised that the plans are not ready. Mr. Beninati advised the applicants that he would take them off the schedule and they would have to re-notice when they are ready to come back.

Application #300 Neri/Brahmatt, RE: 131 South 31st Street, Block 179, Lots 4&5, a Change of Use Variance/a Restaurant-Banquet Hall in an Industrial Zone. Mr. Butler, the attorney representing the applicant, stated that he received a letter on September 25, 2006 from Mr. Swayze from the PMK Group with 36 comments. Mr. Butler stated that given the time frame of the letter it is not possible at this time to address all 36 comments. Mr. Neri and Brahmatt have spent a tremendous amount of time and money and a lot of testimony has been before the board, including an expert in traffic study and also an architect. Some of the issues in Mr. Swayze�s letter can be addressed quite easily but there are others that need more time.� We are asking the Board for a continuance.

Mr. Cirillo responded that he realizes that Mr. Butler does not have enough time to answer Mr. Swayze�s comments but to delay this application anymore is getting tedious. There are many residents applying for variances and we have set them aside in order to listen to the Neri application. We made room for Neri at the last meeting and also at this meeting.� We could have heard at least 6 other variances during that time. Mr. Cirillo stated he will grant the postponement and when Mr. Butler is ready, he should inform the Board secretary and he will place you on the agenda. You will not appear on the agenda until you tell our secretary that you are ready and have all the information that is necessary. Mr. Cirillo asked Mr. Butler if he had any more witnesses to present. Mr. Butler advised that he was half way through with Mr. Parker�s testimony and that needs to be completed and there will possibly be one more witness unless he can work something out with Mr. Swayze. Mr. Cirillo stated that he wanted very little repetitious testimony. �Mr. Fraser asked Mr. Butler if the applicant waived the remaining time with the default application against the board. Mr. Butler replied yes. Mr. Fraser asked Mr. Butler if it is further correct that the applicant understands that while the Board will endeavor to place him on the agenda as soon as possible after he has complied with the Chairs request that he notify the Board that it is complete.

Page 7

�The applicant also understands that there is no guarantee that he will be literally on the next session of the Board and that someone is not going to be bumped for him and that will also not be used as an excuse for default application.� Mr. Butler replied, of course. Mr. Butler asked if he had to re-notice and the Board replied yes. Mr. Butler was granted a postponement.

Mr. Cirillo asked if there was any other business and if anyone in the audience wished to speak.

Mr. Bob Herbert, 363 Coolidge Drive was sworn in.� Mr. Herbert stated that he had information on ordinance for air conditioners.� Mr. Herbert stated that the present ordinance in the Borough of Kenilworth states that when you build your home or you upgrade your furnace you can go to direct vent system which eliminates the chimney. Mr. Herbert stated that direct vent systems are much louder than central air conditioners.

Mr. Rich Laforte, was sworn in. Mr. Laforte asked if the Board would grant permission to install an air conditioner as long as it does not fall within the 5 ft. set back.� The Board replied yes that was true. Mr. Laforte advised that 99% of the houses in Kenilworth are less that 5 ft. side yards, which means 99% of the people are going to have to get a variance anyway if they do want to get an air conditioner on the side.

Mr. Cirillo reminded the Board of the October 5, 2006 work session and the next regular meeting is October 26, 2006.

Mr. Michitsch asked if residents that come before the Building Department to remove the non conforming property need a variance.� Mr. Fraser responded no. Mr. Beninati stated that the Resolution stated that any change to a non conforming property must come before the board. Mr. Fraser stated there has not been a single application made to the Building Department to eliminate, in its entirety, a non conforming so that a property will be fully conforming and that permit was denied.�

Mr. Fraser stated that he would prefer not to be drawn into a discussion on the record where he may be asked to criticize an ordinance or policy that he may later be forced to defend in court. Mr. Michitsch asked if Mr. Fraser could come to a work session to discuss non conforming policies.

Mr. Cirillo asked what the salary is for the secretary and the attorney.� Mr. Fraser responded the salary of the attorney is $5800.00 per year, which comes to $483.33 per month, which includes preparation of the resolutions, attendance at these meetings and miscellaneous phone calls. Mr. Beninati stated that the secretary receives $150.00 per month.� Mr. Circillo asked if the two girls working in the back office work for the planning board. Mr. Beninati replied that Connie does most of the planning board work but also works for the Building Dept., Kathi does some work because she enters the applications and Ellen does some work.

Meeting adjourned at 8:45 pm

Respectfully submitted,

Planning Board Recording Secretary

ADS - Applied Dynamic Solutions, LLC ADS, LLC   email webmaster