Borough of Little Silver
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September 6, 2007

(732) 842-2400

Tuesday, September 6, 2007                                7 P.M.
Regular Meeting - Planning Board

The Regular Meeting was called to order at 7 P.M. by Chairman Jacobi who gave the following Statement of Compliance:  Adequate notice of this meeting has been provided by giving of annual notice to the Asbury Park Press and Two River Times and by filing of such notice with the Clerk of the Borough of Little Silver and by prominently posting said notice on the Borough bulletin board.

Roll Call:    Present:        Mayor Castleman, Councilman DeNoia, Chairman Jacobi,
Mr. Lindsey, Mr. Scott,     Mr. Drawbaugh, Mr. Nuara, Mr. Neff, Attorney Leckstein and Borough Engineer, Mr. Blash

Absent:    Mr. Olimpi and Mr. Chimento

Correspondence:  Copy of August 24, 2007 letter from Najarian Associates to the DEP.  August 31, 2007 letter from Attorney Meese requesting that the Sprint application be carried for another month.  No time waiver has been provided.  Copies of purchase orders and finance information.

Approval of Minutes:  Mr. Neff Moved to approve the August 7, 2007 Minutes.  Seconded by Mayor Castleman and a unanimous voice vote followed.  Mayor Castleman Moved to approve the August 21, 2007 Regular Minutes and the amended Executive Session Minutes.  Seconded by Mr. Nuara and a unanimous voice vote followed except for Mr. Lindsey who was absent for that meeting.

Unfinished Business: 

Use Variance and Site Plan Application of Sprint Spectrum, L.P. to construct a 112.5’ high monopole, 240 square foot equipment shelter, 8 foot high fencing containing barbed wire:

Attorney Meese’s request to carry the application for a month was discussed with Mayor Castleman Moving to carry the matter for one month as requested, to the second meeting in October (October 16, 2007), on the condition that the applicant provides a waiver of time through that date.  Seconded by Mr. Scott and a unanimous voice vote followed.

Site Plan Application – Eastview Avenue Associates, LLC, Carriage Park at Little Silver – Kalian, Block 58, Lots 20.01, 25-40, 44-60 –  ARAH Zone  – Continuation of Hearing:

Chairman Jacobi reminded the Board that the applicant had concluded its testimony and that the floor would now be open for testimony, comments and questions from the public.

The Honorable Chester Apy appeared and it was noted that he was previously sworn in.  He questioned whether the applicant had in fact concluded it’s case.  Attorney for the Applicant, Meryl Gonchar confirmed that this was correct, subject to the need for any redirect or clarification.

Judge Apy advised the Board that he was present as a member of the public.  He had reviewed the application, attended the hearings and represents only himself, he is not practicing law.  Most of his career consisted of municipal and land use law although he hasn’t practiced for 13 years.

Mr. Drawbaugh questioned whether a vote on the application was possible.  The Secretary advised that all of those who missed a meeting were provided with a transcript of that meeting.  Discussion among the Board confirmed that all members present had listened to their respective transcripts and were eligible to vote.

Judge Apy advised that he put together an exhibit package for the Board.

Attorney Gonchar stated that the Statute requires that all documents be submitted 10 days prior to the hearing.  Attorney Leckstein responded that the applicant is held to that standard, however, objectors usually are not.  He stated that the Board could adjourn the meeting but suggested that she review the package before making that decision.  Ms. Gonchar stated that she felt it unfair as she was not aware of this prior and wanted her objection noted.

Judge Apy stated that he would not be providing any expert testimony. 

Attorney Leckstein reviewed the package and stated that there is nothing in the package that is not of public record.  He noted a copy of the Ordinance, the Affordable Housing Growth Share Requirement taken from a report, a copy of the Borough Engineer’s August 7, 2007 letter, the Housing Element and Fair Share Plan dated November 25, 2005, a letter from COAH, a letter from the Borough Planner, Mr. Coppola dated November 2, 2003 and last, a hand-drawn schedule.

Judge Apy stated that the documentation was obtained from the files at Borough Hall.  He stated that he had read the Mayor and Council workshop meetings for the last five years.  This began in November of 2003 and was at the Mayor and Council level for three years and the Planning Board about a year.  Now the public has an opportunity to have something to say.  He provided the Board with his package and asked the Members to take it home and review it; these are the most pertinent documents for the Board to consider in making its decision.

Judge Apy questioned, who are the individuals or groups of interest?  He noted Eastview Avenue Associates, Mr. Segall, Javin Partners and the Borough of Little Silver.  He reviewed a letter from the counsel for the applicant which says that it is the contract purchaser of two pieces of property which appears to be Kalian but states that the applicant is Eastview Avenue Associates.  He noted Section K at Page 10-37, of the Ordinance requires that the entire tract of land to be subject to a unified application.  He read from Section K.1.  “The entire tract of land shall be subject to a unified application for development under the ownership (legal or beneficial) of one (1) entity or individual for purposes of obtaining all required approvals from the Planning Board.”

Judge Apy stated that there has been no testimony that “x” corporation is the owner or beneficial owner and questioned whether the applicant had the right to proceed.  Who are the contracting parties?  How does the applicant come to the Board, as the contract purchaser or the holder of an option?  Is there proper jurisdiction?

Attorney Leckstein responded that the Ordinance could be read that the entire tract is subject to a unified application and that is what this is; as long as the applicant has the permission or the power.

Attorney Gonchar stated that the disclosure of Eastview Avenue Associates is clear.  There is a contract, who the members are have been provided as well as an authorization from the owner.  She reads the Ordinance the same as Mr. Leckstein; there is one application to develop the property, that is how it was submitted.

After discussion with Judge Apy as to this issue, Attorney Leckstein stated that it is his feeling that the Board has jurisdiction over the application and the applicant has the right to proceed.  He noted however, that it is up to the Board.

Mr. Scott stated to Judge Apy, with due respect, that he had said that he had not practiced in 13 years and possibly he was not quite up to speed; this practice is customary and common place as to how this application was handled.

Attorney Leckstein prompted discussion among the Board which determined it to be in agreement with him, that the Board has proper jurisdiction over the application.

Judge Apy stated that the applicant has not shown beneficial ownership of the portion of the property owned by the Borough.  The Board was confused and questioned what portion of the property was he referring to?  Judge Apy stated that he meant the piece to be vacated; the paper streets on the Segall tract.  Attorney Leckstein responded that this is a technical issue, not fatal to jurisdiction.  He didn’t see how the Borough of Little Silver can be part of the application.  The remedy is that the approval if there is one, would be subject to the vacation of the paper streets.  Discussion followed with regard to that previous subdivision application with it being noted that no one was sure that that application had ever been filed and the subdivision perfected.  Judge Apy stated that nothing says the Borough will vacate those streets.  Attorney Leckstein again stated that he didn’t feel the issue fatal to jurisdiction.  Judge Apy stated that the Board should reach a conclusion on its own.

Attorney Leckstein questioned the Board whether anyone felt that jurisdiction was defective as there was no formal contract with the Borough of Little Silver?  Chairman Jacobi responded that he felt this could be corrected with a condition of any approval.  Board Members agreed.

Judge Apy, as to the entire tract, questioned Mr. Blash, how much is developable and how much is not?  Does the wetlands extend into the Annarella property?  To this, Mr. Blash responded yes, the wetlands extend to the Annarella property but it doesn’t appear to be extensive.  Judge Apy questioned, do the wetlands extend into the buffer and answered his question with a yes.  Judge Apy questioned, can the applicants build in the buffer?  Mr. Blash stated that they can apply for permits to do so.  They do show improvements in the buffer area.  When Judge Apy questioned further,
Mr. Blash referred him to page 5 of 15 of the plans.  Peter Ciliberto, the applicant’s engineer, then reviewed the plan with Judge Apy as to these issues.  As to the buffer averaging, he noted that the reduction is along the northern property line and the expansions along the eastern property line.

Judge Apy commented that the area to be conveyed to Little Silver is not the Annarella property.  There is room there to be used as part of this application.  He questioned whether the entire Annarella tract would be cleared?  Attorney Gonchar stated that this question is cross of a witness and the testimony was made available previously.  Attorney Leckstein stated that he thought the Board understood that most of the Annarella tract would be cleared.  Mr. Blash added, except for the buffer.  Board Members confirmed that they did understand the proposal.

Judge Apy questioned Mr. Blash’s notations in his letter regarding open space.  Mr. Blash responded that he took the figures from the applicant’s plans and explained that it would include the portion of the Segall tract.  Mr. Apy noted the 12.65 acres to be dedicated as open space.  Mr. Ciliberto responded that the open space is shown on sheet 3 of the plans.  Judge Apy stated that he felt there to be a discrepancy.  He questioned, where is the 12.65 acres?  Ms. Gonchar questioned where he was getting that number?  Open space is not dedicated open space.  Mr. Apy responded that he subtracted the 10.41 acres of the Segall tract from the 12.65 acres and questioned where the other 2.28 acres is?  Mr. Blash referred him to the top of the chart which shows a breakdown of the 14.22 acres.  He suggested that there may be some confusion as open space covers the 14.22 acres and of that, all 12.65 acres will be open space.

Judge Apy offered what he referred to as O-5 contained  in his package, a letter from the Two Rivers Reclamation Authority regarding the sewer ban which applies to this applicant.  He stated that it appears that the earliest the permits could be issued would be in 2010.  Attorney Leckstein responded that the answer is that any approval would be subject to.  If the applicant can’t get the permits, they can’t get the permits. 

Mr. Apy then noted the Borough Engineer’s August 7, 2007 report as to the outstanding items.  Attorney Leckstein responded that there is another letter dated today which explains how the comments fall away.  Judge Apy stated that on page 19 referring to 2(c), the Engineer recommends that the application be deemed incomplete.  Mr. Blash explained that this is standard in every letter;  item 2(c) asks the applicant to show all trees within 6” and until the Board grants the waiver, he leaves the open item in the letter.

Referring to what he described as O-3, the second of the two Ordinances in his package, at the top of the second page, he read:  “The affordable housing units shall be disbursed throughout the inclusionary development to the greatest extent possible and shall be designed to be architecturally indistinguishable from the market rate units to the greatest extent possible…” and noted that this is also referred to in his O-6.

Attorney Gonchar stated that the documents are highlighted and contained comments and therefore are not documents of public record.

Judge Apy continued, noting that the Board must determine if the affordable housing units are disbursed to the greatest extent possible.  Per an exhibit he borrowed from the Borough Clerk, he noted that essentially, the layout is the same as originally discussed with the Governing Body.  There are 34 units where the two front end units are divided to create the units in the front two buildings; is this the only way this can be done?  Does this meet the requirements of the Ordinance which says the units would be disbursed?  Will the parking spaces fly rather than providing a garage?  He stated that no effort was made to spread the units out; this is no different than the way it started.  He stated that he is pointing out things the Board can do something about.

Judge Apy, referring to his O-7, stated that use of age restricted housing for 50% credit was struck down in January and no one knows the outcome.  Attorney Leckstein questioned whether he was aware of Mr. Coppola’s testimony?  He stated that this is correct in round three, but this is complaint with round two.

Judge Apy referred to his O-8, November 2, 2003 letter to Attorney Leckstein from Mr. Coppola.  Attorney Leckstein explained that Mr. Coppola is the Borough’s Planner, retained and paid for by the Borough.  Judge Apy noted that the letter states that the requirements of the Borough have been brought to the applicant’s attention.

At this point, 8:23 P.M., Judge Apy requested a break.  Chairman Jacobi noted that the Board has a 10 P.M. curfew and that he wanted everyone who wanted to speak to have a turn.  He then called a recess until 8:30 P.M.

At 8:32 P.M. Chairman Jacobi reconvened the meeting and noted that all Board Members remained present.

Rosemary Brewer, previously sworn, appeared.  She stated that she was concerned with the drainage on this overdeveloped site.  She questioned what storm it would take to trigger the spillway? 
Mr. Blash responded that it would be anything above a 100 year storm.  Mrs. Brewer noted that these are pretty common, occurring one to two times a year.  Attorney Leckstein responded that that is not every 100 years.  Mr. Blash explained that a 100 year storm is the amount of rainfall in a 24 hour period.  NOAH says 7 ½” of rain within 24 hours.  What Mrs. Brewer seems to be referring to is short periods of rainfall intensity which mimic a 100 year storm; this exceeds the rate but not the volume.

Mrs. Brewer stated that she was concerned that it could happen, it is not an unusual circumstance.  Mr. Blash pointed out that the system was designed pursuant to the Ordinance.  No one can predict more than a 100 year storm.  Mrs. Brewer stated that if the basin doesn’t drain in 24 hours and it rains the next day, the basin won’t be dry and the water will go into the Borough property if accepted.  She also noted that the Board should consider the aesthetic of the detention basin; it will be above ground, with a fence.

When questioned by Judge Apy as to whether there is a Borough body that has taken the position that the Segall property should be acquired, Mrs. Brewer responded that the Environmental Commission doesn’t agree with the Borough taking back the property for several reasons:  The liability of flooding, that there will be no taxes collected on it and anything that happens downstream would be the Borough’s liability.  She stressed that the stream corridor will need to be maintained.

Chairman Jacobi questioned whether there wasn’t an option.  Judge Apy stated that the option goes to the Mayor and Council but that the Planning Board should have input.  He suggested the following options to the Board:  1. That the Board recommend to the Mayor and Council that the town acquire the property.  2.  Nothing says how long the Borough has to decide if the property to be dedicated should be acquired and he recommended that  the Board take the position to deter the dedication until sometime in the future.  3. Place the entire package in single ownership with the Segall area in a conservation easement to achieve protection and let it remain the responsibility of the Homeowners’ Association to maintain and then taxes could be continued to be collected.  Regarding his O-2, page 10-36, paragraph 2(b) “The association shall be responsible for maintaining and repairing all common elements within the residentially developed portion of the tract which elements shall be listed in any resolution of site plan approval and which shall be set forth in the Homeowners’ Association document and the public offering statement, and shall be incorporated by reference in the contract of sale and deed for each dwelling unit.”  he questioned, what is intended?  He stated that the Board should consider a clear statement in the Master Deed that the property becomes the responsibility of the Homeowners’ Association for the entire 14 acre tract.  Attorney Leckstein agreed stating that the way he read 2(b) it doesn’t say “won’t” be responsible for anything else.  He suggested a condition could require the Homeowners’ Association to be responsible for maintaining the stream corridor.

Judge Apy suggested that the Board look closely at the property noting that parts of it are a mess.  He suggested that the Board choose option 3.

He continued, regarding the required parking variance, noting that the notice for the variance is for less than the required 25 parking spaces.  The plan differs as to the parking and location of the parking lot.  The Ordinance requires that the parking lot be located on the land to be offered to the Borough.  The latest revision is to permit the less than 25 spaces on a different parcel.  That is not what the notice says.  The applicant points out that it can get 12 spaces by putting stripes in the street, 11 of the spaces are right angle parking with the remaining lines in the street.  Attorney Leckstein agreed stating that the applicant is saying it wants a variance for 25 to 11  and the striping is a demonstration of where the parking can be made up to deal with the negative criteria.  A variance is needed for 14 spaces.  Judge Apy stated that in order to get the variance they must show that they can’t put the spaces on their property.  He referred to a July 26, 2007 letter from the Borough Attorney to the Mayor and Council and  questioned, will this be restricted parking for Challenger Field?  The Board should address the issue.  The parking is not dedicated for Carriage Park, can’t the guests park there?  Also, consider the safety of the parking, backing out is not a good practice.

Chris Foard, 65 Edgewood Avenue, appeared and stated that he was involved with the sub-committee.  When this first started, the parking was provided by Edgewood Avenue, far from the field and as a result of upset neighbors, a sub-committee was formed and the spaces were moved down the street.  The plan where the street was narrowed was upsetting and therefore, there was a subsequent meeting of the committee.  He stated that in his view, there are still significant safety issues.  It says in the Ordinance that the parking must be on a dedicated tract – does the Borough get the land?  If not, why can’t they put the parking on their property closer to Challenger Field?  They may lose units but that would solve the density problem.  He stated that he had trouble visually with what this would look like and as a result prepared and provided to the Board “scale comparisons” to show the effect.  He discussed his exhibit with the Board and asked the Board to consider what this development will look and feel like, noting that a person would be dwarfed.

Judge Apy suggested that the applicant put the path from Eastview Avenue across the property, stripe the spaces, put the spaces on the north side of Eastview and forget the parking.  Attorney Leckstein suggested that he make an appearance before the Mayor and Council and ask them to amend the Ordinance.  These issues have been discussed, the applicant is trying to meet the Ordinance.  The Board doesn’t think this is the greatest part of the Ordinance.

Mr. Apy stated that the Board should consider, if the application is approved, the number of truck trips, etc. and find out what will happen.  Attorney Leckstein responded that a development agreement will be required to be created and will be worked on by the Mayor and Council, Borough Attorney and Borough Engineer which will contain the working hours, method of ingress and egress, etc.

Judge Apy stated that he walked the property and urged the Board to go back and look at all of the trees that will come down, picture the area to be cleared and questioned what can the Board do to express its opinion to the Mayor and Council.  He noted that the drainage ditch which runs along the property line will run along everyone’s front door and suggested that the Board visualize what that will look like, visualize the height of the buildings.  How was the Ordinance prepared?  It is identical to the way the plan came in.  When this was going on, he didn’t pay much attention to this as Little Silver has had good townhome developments for many years which all are proud of.  What is different here?  Referring to his O-10, a compilation of the zones, he stated that he took it for granted that this would be similar to those existing developments and it is far from it.  There is no reason to hurry.  He suggested a meeting with the developer to try and turn this around, make the end result consistent with the community.

Chairman Jacobi called for further public comment.

Coralee Johnson, Eastview Avenue, previously sworn, stated that she is an environmentalist and asked the Board to be environmentally responsible.  The public appearing is less because they feel that they can’t change anything.  Little Silver has a quality of life that not many towns do and this must be preserved.  This proposal is too big for Little Silver.  She urged the Board to work for the people, for Little Silver.

Attorney Gonchar requested a moment to confer with the applicant.

Discussion among the Board determined that Resolutions would be taken during the break.


Attorney Leckstein noted that he was still working on the following Resolution:

Denial of Bifurcated Coastal Wetlands and Variance Application of Jerome Rosenthal to allow already added fill on the  property  at 216 Seven Bridges Road, Block 44, Lot 39, in the R-1 Zone which violates the following:  No building, structure, improvement and/or development which increases the footprint of any existing structure or building or which enlarges the ground area of development currently existing on the subject property or which is new development shall be permitted in the Coastal Flood Zone where approximately 4,788 cubic yards of fill is proposed below the six foot contour.  CAFRA approval is required.

Attorney Leckstein reviewed the following Resolution with the Board.

Application of Dr. Theodore and Fabiola Kutzin to amend the Planning Board approval of November 9, 2006 to demolish a portion of the existing rear walkway and construct a 24’ by 20’ two story addition expanding the existing garage from two bays to four bays and enlarging the master bedroom above, a 4’ by 15’ one story open porch addition, interior renovations, expand the existing driveway by approximately 45 square feet and relocate the existing hot tub on  the  property  at 20 Sherwood Road, Block 13, Lot 117, in the R-2 Zone by already constructing a 14’8” by 8’ rear attic dormer, a 10’8” by 13’ second story dormer, a 12’ by 5 1/2’ dormer style roof over a bay window and changing several windows which violates the minimum required lot area of 25,000 square feet where 20,800 square feet is existing; the minimum required front yard setback of 50 feet where 42 feet is existing; and the maximum allowable impervious surface is 35% where 40.1% is existing.

Mr. Neff stated that no one voted to deny the application as a punishment and questioned whether something should be placed in the Resolution to that effect.  After discussion it was determined that the Board was agreeable to the Resolution as prepared and Mr. Scott Moved to approve as presented.  Seconded by Mayor Castleman and the following Roll Call was taken:

Affirmative:    Mayor Castleman, Mr. Lindsey, Mr. Scott and Mr. Neff

Negative:    None

Abstentions:    None

Attorney Leckstein then reviewed the following Resolutions for the Board’s consideration:

Application of Robert and Kathleen Brown to construct a 12’8”  by 13’ second story bedroom and bathroom addition over the existing garage, enclose the existing 19’4” by 13’5” porch, add air conditioning condenser, re-side and replace windows and various interior renovations on  the  property  at 7 Rustic Terrace,  Block 25.01, Lot 1, in the R-3 Zone which violates the minimum required lot area of 20,000 square feet where 18,500 square feet is existing, the minimum required rear yard setback for a principal structure of 50 feet where 40.11  feet is existing, and the minimum required rear yard setback for an accessory structure of 15 feet where 2.2 feet is existing.

Application of Stephen King to construct a 1076.42 square foot 2 ½ story addition consisting of a garage and family room on the first floor and a master bedroom and three additional bedrooms on the second floor with a family room in the basement and demolish the existing sheds and garage on  the  property  at 587 Branch Avenue,  Block 55, Lots 23 and 24 , in the R-3 Zone which violates the minimum required lot area of 20,000 square feet where 17,500 square feet is existing and the minimum required improved road frontage for a corner lot of 150 feet facing both streets where 100 feet and 175 feet is existing.

Application of Geoffrey Owen and Amy Lauren Lloyd to construct a 30’ by 16’ one and one half story addition consisting of a family room, bathroom and laundry room on the first floor and office and bath on the second floor and a 10.5’ by 30’ L-shaped deck on  the  property  at 363 Prospect Avenue, Block 21, Lot 26, in the R-2 Zone which violates the minimum required lot area of 25,000 square feet where 20,000 square feet is existing and the minimum required front yard setback of 50 feet where 40 feet is existing.

Mayor Castleman Moved to approve as presented.  Seconded by Mr. Nuara and the following Roll Call was taken:

Affirmative:    Mayor Castleman, Councilman DeNoia, Chairman Jacobi, Mr. Scott,
        Mr. Drawbaugh, Mr. Nuara and Mr. Neff

Negative:    None

Abstentions:    None

Attorney Leckstein reviewed the last Resolution for the Board’s consideration as follows:

Application of Barbara Luther to construct a 15.5’ x 16.5’ deck addition, 2.3’ above grade on  the  property  at 58 Maple Avenue, Block 55, Lot 9, in the R-3 Zone which violates the minimum required lot area of 20,000 square feet where 6,430 square feet are provided; the minimum required lot frontage of 100 feet where 50 feet are provided; the minimum required rear yard accessory set back of 15  feet where 9  feet are provided; the minimum required principal side yard  set back  is 15  feet where 7.6 feet & 10.3 feet are provided; the minimum required accessory side yard set back is 15  feet where 2.5 feet and 33.5 feet are provided and the maximum allowable lot coverage is 18% where 20.9% is proposed.

Mr. Scott Moved to approve as presented.  Seconded by Mr. Nuara and the following Roll Call was taken:

Affirmative:    Mayor Castleman, Councilman DeNoia, Chairman Jacobi, Mr. Scott, Mr. Nuara and Mr. Neff

Negative:    None

Abstentions:    None

Copies of the within Resolutions are attached hereto and made a part hereof in their entirety.

Chairman Jacobi called for any miscellaneous business; there was none.

Attorney Gonchar addressed the Board stating that the application before the Board is permitted and substantially conforming.  Variances are requested for parking and signage.  As to the signs, there is less square footage proposed but the design of the piers and decorative elements create the variance.  The applicant has established its testimony regarding the signs and parking area and as to the constraints that dictate its location.  There was a means to provide the 25 parking spaces; however, concerns were raised as to the impact on the neighboring residences and the backing out of vehicles.  There was testimony from Little Silver Police Sergeant LaBruno who was satisfied that the design before the Board addresses those concerns.  The applicant’s testimony was that there will be low volumes of traffic which made the revision comfortable for their expert.  The variances and waivers have been substantiated and the Statute met.  The applicant’s obligation is to demonstrate compliance with the bulk standards and provide utilities and drainage.  The Borough Engineer has indicated that he is satisfied with the information provided and the applicant has met its burden to design an appropriate site.  The applicant meets the appropriate standards and has addressed the issues.  The questions regarding soils were satisfied with additional testing.  The internal circulation, traffic generated, snow removal and maneuverability have all been addressed.  The layout will work, the design is good, safe and in accordance with the Ordinance and RSIS.  The affordable units will not treat the residents like “second class citizens”.  Based on the plans, the units will be indistinguishable from the other units.  She feels the units are in conformance with the Ordinance which must be read in conjunction with COAH.  There is no requirement per COAH with regard to disbursal; the goal is not to have the units in a single building and they have been placed in two buildings.  The applicant feels it has complied with the spirit of COAH’s recommendations and regulations.  The standard measured against is the Ordinance and she asked the Board to do so.  She stated that the Borough’s Planner has testified regarding Little Silver’s Mt. Laurel housing obligation and was comfortable with and raised no objections to the proposal.  Based on the satisfaction of the elements of the site plan application and the positive and negative criteria, she asked the Board to grant approval based upon the Ordinance before it.

Judge Apy, as the applicant was requesting the Board to act, attempted to provide a draft resolution denying the application for the Board’s consideration.  Attorney Leckstein stated that this was inappropriate and did not accept same.  Judge Apy responded that it was totally appropriate as the Board was being pressured to vote.  Attorney Leckstein stated that he felt there should be no positive or negative resolution prepared until the Board knows where it is going.

Mr. Drawbaugh stated that he had open questions.  Chairman Jacobi advised that he did also.

Attorney Leckstein, regarding the disbursement of units, explained that the idea is to prevent large projects from clustering affordable units.  When the Homeowners’ Association is set up, the appropriate number of residents is needed to run it.  Judge Apy objected, stating that Attorney Leckstein was testifying and should not be permitted to do so.  Attorney Leckstein concluded that this is his legal understanding of the reason.

Mr. Drawbaugh questioned whether the Board must make a decision tonight?  Attorney Leckstein responded no, but suggested that the Board authorize him to prepare a resolution to deny or approve so that he can begin to work on the many facts and conditions that arise from the Board’s discussions.  Chairman Jacobi stated that he had a problem with that as until the open questions are resolved he wasn’t sure whether it would be an affirmative or negative resolution.  There are a lot of issues and he suggested that the vote be held at the next meeting.

Mr. Drawbaugh questioned the status of the paper streets discussed?  Attorney Leckstein stated that he felt this was not a critical issue.  If the Borough accepts the property it would be a condition that the streets be vacated and if not vacated, the project would die.

Councilman DeNoia requested that Attorney Leckstein explain that the suggestion of a yes or no resolution was not binding on the Board.  Attorney Leckstein explained that as the issues are complex, the resolution would probably contain several pages of conditions and the Board will need an opportunity to look at all of the conditions.  Councilman DeNoia added that any vote for the preparation of a resolution is not a vote on the substance of the application.

Chairman Jacobi stated that this is important.  The Ordinance was adopted by the Governing Body and the Board must follow it.  He agrees with the concept, although a “bitter pill” and that the Board would be looking to adopt in some manner.  Therefore, he would agree to a draft resolution noting that there are many issues to be discussed.

Mr. Scott suggested resolutions for and against for discussion.  He is concerned with the additional acreage, whether it be left with the development or accepted by the Borough.  He is concerned with the issue of the Homeowners’ Association and whether it would have the ability to maintain a 14 acre parcel; maybe it would be better for the Borough to own part of the property.  On the one hand he feels the Borough may be land rich and money poor with parcels that don’t produce anything such as the Parker House and the property slated to be Veteran’s Park.  He feels that a resolution should be drawn for discussion as there are many items to be dealt with.

Attorney Leckstein stated that he was in need of discussion on such issues as, what do we do with the open space area, etc.  Some things are obvious, such as the vacation of the streets and the developer’s agreement, but what about parking, it is not up to the Board to say it shouldn’t be there.

Prompted by Mr. Lindsey discussion followed with it being noted that the two variances are the issue of the signage which was no problem and the parking which is at issue.  Mr. Scott stated that the Ordinance requires the parking, the applicant doesn’t care about it and is only trying to comply.  Mayor Castleman stated that the parking was the result of wanted parking for Challenger Field.  The Council is concerned that at some point the Borough will have no parking for the Field and wanted the 25 parking spaces.  Discussion followed with regard to the parking with Attorney Leckstein noting that the Board can make the recommendation to the Governing Body that it feels the spaces should be eliminated but would approve what was asked for.

Mr. Drawbaugh noted that he missed the landscape plan and due to the scale felt that this is a serious issue which must be addressed.  Attorney Leckstein suggested that a condition could be imposed that specimen trees to be cleared must be located.

At 9:56 P.M., Mr. Drawbaugh excused himself from the meeting.

Attorney Leckstein noted that it appeared that the Board preferred him to draft a resolution for the
October 2nd meeting as he would not be available on September 18th.  Councilman DeNoia stated that it will be important for the Board to give a sense of how it feels about the open space.

Mayor Castleman Moved to close the public hearing.  Seconded by Councilman DeNoia and a unanimous voice vote followed.

Attorney Leckstein questioned Ms. Gonchar as to providing an extension of time at least until October 2nd.  Ms. Gonchar was reluctant and stated that she would like the Board to vote.  After conferring with the applicant however, she agreed to extend the time within which the Board must act until October 2, 2007.

Mayor Castleman Moved to carry the application to the October 2, 2007 meeting.  Seconded by Mr. Neff and a unanimous voice vote followed.

There being no further business to come before the Board, the meeting was adjourned at  10:06 P.M. on Motion of Mayor Castleman and Second of Mr. Neff.  A unanimous voice vote followed.

                        For Chairman K. Edward Jacobi

                        Diane L. Ramsey, Secretary
Dated:  September 14, 2007

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Borough of Little Silver
480 Prospect Avenue, Little Silver, NJ 07739
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