Borough of Little Silver
480 Prospect Avenue, Little Silver, NJ 07739
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December 6, 2005

LITTLE SILVER PLANNING BOARD

BOROUGH OF LITTLE SILVER

480 PROSPECT AVENUE

LITTLE SILVER, NEW JERSEY  07739

(732) 842-2400

 

Tuesday, December 6, 2005                                                                               7:35 P.M.

Regular Meeting - Planning Board

 

The Regular Meeting was called to order at 7:30 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, Mr. Olimpi, Chairman

Jacobi, Mr. Lindsey, Mr. Scott, Mr. Drawbaugh, Mr. Chimento, Mrs. Montella, Attorney Leckstein and Mr. Blash

 

Absent:            Mr. Nuara and Mr. Neff

 

Correspondence:  November 16, 2005 letter from Mr. and Mrs. Michel in opposition to the Costello application. Violation Notice from DEP for 9 Carriage House Lane (ramp and floating dock).  Budget information.  December 5, 2005 letter from Kevin and Alicia Murray, 411 Branch Avenue, requesting a one-year extension on their variance granted December 7, 2004. 

 

The request from Mr. and Mrs. Murray, 411 Branch Avenue, for a one year extension of their approval was reviewed and discussed.  Mrs. Montella Moved to approve the one year extension.  Seconded by Mr. Scott and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman Jacobi,

Mr. Lindsey, Mr. Scott, Mr. Drawbaugh, Mr. Chimento, Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

Public Hearing - Amendment to Master Plan - Housing Plan Element and Fair Share Amendment:

 

Richard T. Coppola, P.P., Coppola & Coppola Associates appeared and explained to the Board that COAH had only issued its report on the second round in September and under the new rules the Borough must submit for third round by December 20, 2005.  There are three pieces to the report, a rehabilitation share, the remaining prior round and a growth share.  He explained  the Borough’s obligation and noted that the calculation for new units is high, 197.  The Borough completed a vacant land analysis and calculated a reduction from 197 to 18.  In COAH’s last report which critiqued lands and did a survey, they agreed with most of the information provided, removed a couple of the lots based on current environmental information and up-graded two others.  The conclusion was an agreement on vacant land adjustment of not 18 but 21.  Mr. Coppola acknowledged Borough Administrator, Michael D. Biehl, for his help in gathering the required data. 

 

He stated that he felt that the Borough could still argue, but that the argument was not worth it as 21 is close.  The report accepts and augments COAH so the second round is 21 units.  The growth share is from January 1, 2004 to December 31, 2013 for residential and non-residential units and is a projection of new units to be built.  This will be monitored by COAH every three years.  On the residential component, the Borough is higher than that predicted by the State.  He reviewed the calculations which concluded in 9 residential affordable housing units attributed to the Borough and 2 non-residential units for a total gross share of 11 units.  The 21 plus the 11 is a total of 32 units to be satisfied.  The total plan included RCA’s and apartments.  There is an 8 unit rental obligation, 7 age restricted apartments are contributed to the Kalian property out of 34.  20% or 7 are set aside for affordable units.  There are 9 accessory apartments; the Borough gets a credit for 10 or 17 and 15 units.

 

Chairman Jacobi called for questions or comments from the public or the Board.  There were none.

 

Attorney Leckstein read the Resolution for the Board’s consideration.  Mr. Scott Moved to approve the Resolution as presented.  Seconded by Councilman DeNoia.

 

Mr. Drawbaugh questioned who polices this going forward?  Attorney Leckstein responded that the Mayor and Council does.  Mr. Coppola added that COAH does as well.

 

Chairman Jacobi stated that he read the Plan and understands that the Borough has no choice but noted that he had a few factual comments to be provided and would do so in writing.

 

Roll Call:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman Jacobi,

Mr. Lindsey, Mr. Scott, *Mr. Drawbaugh, Mr. Chimento, Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

*Mr. Drawbaugh’s vote was a yes with reservations.

 

Attorney Leckstein thanked and complimented Mr. Coppola on the great and expedient task he performed.

 

Approval of Minutes:  Mr. Lindsey Moved to approve the November 15, 2005 Minutes.  Seconded by Mayor Castleman and a unanimous voice vote followed.

 

Report – Johannen Property, 109 Rumson Place:  The Secretary read the report received from the Construction Official which notes that the deck was constructed in the correct location.  Discussion determined that although the applicant has not published approval no action would be taken by the Board as Attorney Leckstein noted that the applicant is taking the risk upon himself for not having published.

 

Discussion of Time Requirements (waived through December 31, 2005) Major Subdivision and Use Variance Application of Palatial Homes, Inc. - Block 1, Lot 15, Grant Place, B-1 Zone:

 

The Secretary reported that a letter had been received from the applicant’s Attorney waiving the time requirement through January 31, 2006.  Discussion determined that as so much time has passed, the applicant must re-notice when ready to move forward.

 

Site Plan Application of Montessori Academy, Block 30.01, Lot 135, 36 Birch Avenue, B-2 Zone: 

 

The Secretary reported that the applicant had not yet provided revised plans and that the matter would be rescheduled to January 19, 2006 with time requirements waived, a letter having been received from the applicant’s attorney.    Mr. Drawbaugh Moved to carry the application to the January 19, 2006 meeting.  Seconded by Mayor Castleman and a unanimous voice vote followed.

 

Application of Robert and Katherine Cione to construct a 25’ by 18’ two story addition consisting of a family room and two bedrooms and to demolish a 5’ by 18’ section of the existing deck and reconstruct a 5’ by 14’ section on the other side of the deck on the property at 30 Amelia Circle, Block 53, Lot 12, in the R-3 Zone which violates the minimum required lot area of 20,000 square feet where 12,114 square feet is existing; the minimum required rear yard setback for a principal structure of 50 feet where 35 feet is existing; the minimum required side yard setback for an accessory structure 64 square feet in size of 8 feet on each side where 3.74 feet is existing; and the maximum allowable lot coverage of 18% where 20% is existing.

 

Attorney Leckstein’s review of service found it in order and the Board to have jurisdiction.

 

Mr. and Mrs. Cione were sworn in.  Mr. Cione advised the Board that they proposed a 25 by 18 foot addition to the rear of their home consisting of a great room and two bedrooms.

 

When questioned by Chairman Jacobi, Mr. Cione confirmed that all materials would be consistent with the existing structure and that all variances are pre-existing conditions.

 

When questioned by the Board, Mr. Cione explained that the height of the proposed deck would be about 3 to 4 feet from grade, about 3 to 4 steps.  He agreed to a condition that the deck would not exceed 4 feet from grade.  Mrs. Cione noted that existing concrete created the placement of the deck.

 

Chairman Jacobi called for questions or comments from the public.  There were none.

 

Councilman DeNoia Moved to approve the application as presented.  Seconded by Mayor Castleman and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman Jacobi,

Mr. Lindsey, Mr. Scott, Mr. Drawbaugh, Mr. Chimento, Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

Application for Interpretation of Donald Steckroth, 3 Holly Drive, as to 199 Seven Bridges Road, Block 46.01, Lot 2 :

 

Application of Gary Costello to construct a 35’ by 45’ tennis/basketball court and one 1,100 watt Halide light, 18 feet in height, on the  property  at 199 Seven Bridges Road, Block 46.01, Lot 2, in the R-1 Zone which violates the minimum required lot area of 60,000 square feet where 44,997 square feet is existing and  the minimum required improved lot frontage of 160 feet where 150 feet is existing.

 

 

Ronald Gasiorowski, Esquire appeared on behalf of the applicant, Donald Steckroth and Michael McGann, Esquire on behalf of Mr. Costello.

 

Attorney Leckstein noted for the record that he reviewed the notice and interpretation and although he felt that notice was not required, the Board had jurisdiction.

 

Thomas Thomas, Professional Planner, was sworn in.  He advised the Board that he is a licensed planner in New Jersey.  An undergraduate and graduate in planning with 40 years of experience.  He has been employed in Arkansas, Pennsylvania, New York and Maryland and was licensed in New Jersey in 1972 and is employed with Herbert H. Smith & Associates.  He has prepared master plans and done development ordinance work.  In 1978 he prepared Little Silver’s Master Plan and draft ordinance.  He has worked in Shrewsbury, Red Bank, Middletown, Highlands and most recently West Long Branch. 

 

Attorney Leckstein questioned whether there was any objection to the expert’s qualifications or the Board moving forward.  Attorney McGann responded that he had none.

 

Mr. Thomas testified that he prepared the exhibits to be presented to the Board and marked O-1, an aerial photo which was taken from 2002 photos of the NJDEP, representing the area around 199 Seven Bridges Road, the property in question.  He has reviewed the photo, the area and the proposal.  He is familiar with the Borough’s Master Plan and has examined its Ordinances with regard to accessory uses after having examined the application and exhibits and lot plan/survey showing the location of the proposed court.  He has examined the literature regarding the court and noted that it appears that the proposed court is a multi court and lighted but not a full size basketball court.  A backboard, rim and lighting are proposed.  The property is in the R-1 Zone and he is familiar with the regulations in that Zone.  The lot is undersized as is the frontage.  For an accessory use a 15 foot side and rear yard is required.  However, under Section 2.3 the definition of “Accessory use or Building” means a subordinate use or building, the purpose of which is incidental to that of a main use or building on the same lot, except that any structure with a floor area in excess of 700 square feet or a building containing living space shall be subject to the setback requirements for principal buildings.”  In his opinion, the floor area would be an improved surface, a macadam, flat surface with square footage in excess of 1,500 square feet.  He feels this is a structure under the Municipal Land use Law and more than 700 square feet in size.

 

He feels that the Residential Site Improvement Standards apply; this is a State standard.  When in conflict with a municipal ordinance, the RSIS would control.  There are two items he feels which are applicable in this instance:  1. RSIS governs site improvements in connection with a subdivision, site plan or variance; and 2. RSIS’ definition for impervious coverage applies as this is a surface that has an impact on the application in relation to setbacks.  It is not listed as a permitted accessory use and requires a variance and is subject to RSIS whether it is a use variance or not.

 

He examined Little Silver’s Ordinance as to permitted and accessory uses.  A basketball court is not listed as a principal use.  The Ordinance provides for accessory uses as follows: off-street parking, swimming pools, signs and other customary uses indicated such as a private garage, boat house or bath house.  Other than a pool, most accessory uses are functional and related to living such as a garage or shed.  To utilize a garage as a residence, a use variance would be needed.  As to the light structure, it would be used after dark and would be accessory to the main use but not a permitted use.

 

Chairman Jacobi questioned whether a basketball hoop on a garage would need a use variance?  Mr. Thomas replied that it would not as the garage is accessory and the driveway is associated with the garage.  This proposal is separate and unrelated, a distinct structure which is lit and designed for that use.

 

When questioned further by Chairman Jacobi with regard to a tennis court which has no lights, Mr. Thomas responded that it would depend on the location.  There is a provision in the Ordinance for tennis courts but under the RSIS and Stormwater Management a use variance may be required.  In his opinion, the setbacks for a principal structure would be required.

 

When questioned by Attorney Leckstein as to how the 700 square feet figures in, Mr. Thomas explained that the proposal is in excess of 700 square feet and if the Board found it to be an accessory structure, would need to meet the larger setbacks per the definition of accessory building.

 

When questioned by Attorney McGann, Mr. Thomas testified that he is familiar with Little Silver’s Ordinance.  His position is 1. The proposal is an accessory use not permitted, not listed as such and exceeds 700 square feet.  Permitted accessory uses are a garage, boat or bath house.  Other structures would be considered accessory such as a shed.  Attorney McGann noted then that just because it is not listed in the Ordinance doesn’t mean that it is not an accessory use. 

Mr. Thomas agreed.  When questioned as to a basketball court, Mr. Thomas stated that it would be considered an accessory use when attached to a permitted accessory use and within a driveway that is a customary accessory use.

 

Attorney McGann questioned whether a basketball court placed on a property would require a use variance?  Mr. Thomas responded yes.  Mr. McGann questioned whether he had ever dealt with such an issue?  Mr. Thomas stated that he had never seen one come before a Board and that it was not customary.  Such a court would be creating a facility for recreational use.  Mr. McGann questioned whether a person couldn’t play basketball on their property?  Mr. Thomas responded that he didn’t say that, it depends on whether it is a separate facility or a hoop on the side of a building.  Mr. McGann questioned whether he would agree that basketball is a customary use.  Mr. Thomas responded that it is an activity.  In this case the use is a structure and the use is not listed in the definitions. 

 

Prompted by Attorney McGann’s statement that a car wash would not be permitted, Attorney Leckstein stated that washing your car would be but if you are washing everyone’s car in town it would be an activity not permitted.

 

Mr. McGann questioned the difference between a tennis court and basketball court and whether a tennis court would be permitted.  Mr. Thomas responded that he didn’t see where tennis courts were specifically permitted.  Attorney Leckstein stated that tennis courts are exempted from the definition of a structure and therefore, the implication is that they are permitted.  Mr. Thomas stated that the law has changed since the Ordinance and under RSIS a tennis court is now a structure.  Attorney Leckstein noted that the Borough’s Ordinance exempts tennis courts and patios.  Attorney McGann added pavement as well.  He then questioned Mr. Thomas that it was his opinion that a tennis court is not set forth as a customary accessory use.  Mr. Thomas agreed.

 

Attorney McGann reviewed the definition of accessory use “Accessory use or Building” means a subordinate use or building, the purpose of which is incidental to that of a main use or building on the same lot, except that any structure with a floor area in excess of 700 square feet or a building containing living space shall be subject to the setback requirements for principal buildings.”, noting in particular the wording “floor area”.  He then read the definition of “floor area” means the sum of the gross horizontal areas of the floor or several floors of a building measured between the inside faces of exterior walls, or from the centerline of walls common to two dwelling units or uses.  For nonresidential uses, floor areas shall include basements, cellars and storage areas.”

 

When questioned by Mr. McGann, Mr. Thomas stated that the basketball court has no exterior walls, no center line of walls common to two dwelling units.  There are edges, and it is greater than 700 square feet and it is a structure.

 

Attorney McGann then read the definition of structure and in particular “The word “structure” shall not apply to service utilities entirely below ground or fences, pavements, curbs, sidewalks, patios, gasoline fuel pumps or tennis courts.”  When questioned further as to this, Mr. Thomas stated that the definition is inconsistent with RSIS and the MLUL and should be ignored.  Mr. McGann questioned if the proposal were a 45 by 35 foot patio, would it need a variance?  Mr. Thomas responded that it is not a structure per the Ordinance definition.  Mr. McGann questioned whether a pool is an active use? 

Mr. Thomas stated that it is.  Mr. McGann questioned whether the light fixture was covered under the Ordinance?  Mr. Thomas responded that most ordinances don’t have standards for lighting of courts or pools, just not that it extend outside of the area to be lit.

 

Chairman Jacobi called for questions of Mr. Thomas from the public.  There were none.

 

Gary Costello, 199 Seven Bridges Road, was then sworn in.  When questioned by his Attorney, Mr. McGann, Mr. Costello testified as follows:  He has owned the property since August of 2002 and lived in Little Silver since July of 1994 at 36 Bernard Terrace, having moved for a larger property.  He has been involved in Recreation, coached travel, baseball, basketball, soccer and  is on the Little Silver Athletic Association.  The proposal is for a multi-court which would contain a basketball surface.  He has played at Point Road which no longer exists, on Edgewood Avenue and in the morning before work, however that location was closed after 9-11.  There is nowhere to play outside at night.  He proposes a  multi-use court as shown on O-1.

 

When questioned by Attorney Leckstein as to hours of use and how late the court would be used, Mr. Costello responded that the hours would vary and he would abide by the Borough’s noise Ordinance which is 10 P.M.

 

Mr. Drawbaugh questioned the average number of players expected on the court.  Mr. Costello responded between 6 and 8 at the most.  It would be a half court surface.  He has two children, a sophomore and a senior in High School.  The material to be used is softer and less noisy and has a better appearance than asphalt.

 

When questioned by Mr. Gasiorowski, Mr. Costello confirmed that he purchased this property as it was bigger.  The property is undersized for the zone as is the road frontage, these are the reasons for the variance.  He feels that he located the court as far away from the neighbors as possible.  Mr. Gasiorowski commented that it was located to keep it away from the applicants’ home and it has been brought closer to the neighbors.

 

Mr. Gasiorowski offered O-2, a Rhino Sports brochure taken from the internet which claims the court would beautify your backyard and offer a central location for neighbors and friends.  When questioned, Mr. Costello stated that the court is for his kids; if friends join them, that is okay.

 

Mr. Gasiorowski questioned whether the existing split rail fence would keep balls from leaving the property?  Mr. Costello stated that 10 foot high nets are available for that purpose but he didn’t feel the balls would go onto the neighbors’ properties.

 

Mr. Gasiorowski questioned whether there was a public court in Little Silver with lighting. 

Mr. Costello responded that there was not.  When questioned further, he stated that he did not feel the proximity of the court would be intrusive to the neighbors.

 

Chairman Jacobi called for questions from the public.  There were none.

 

Discussion followed with regard to the variance application with Attorney Leckstein noting that it had been determined at the last meeting that technically jurisdiction could be accepted, however, the question of what variances were needed raised the interpretation issue.  When questioned by Chairman Jacobi, Attorney McGann advised that no further notification had been provided as to a use variance.  Mr. Gasiorowski stated that it was his understanding that only the interpretation would be heard at this time.  Attorney Leckstein responded that he did not understand that this evening’s hearing would only be limited to the interpretation.  If the Board rules in favor of

Mr. Costello on interpretation, then he can apply to the Board to continue to present witnesses.

 

Pete Lamberson, Rhino Sports of New Jersey, Freehold, New Jersey was sworn in.  He testified that he was contacted with regard to installing a multi-sport court.  He described the court as being comprised of tile designed to flex which is soft on the heels and joints.  The site is prepped, 8 inches of soil excavated, 4 inches of crushed stone laid, a mason puts in a 4 inch pad with a 6 inch turndown.  Concrete is used and depending on the soil analysis, steel wire or rebar.  The concrete is poured and the flooring (colors and lines) put down to the specifications of the client.  One light post is proposed across from the key and will be positioned at the rear facing toward the house as shown on the site plan which was marked A-1.  It is located closest to the property to the rear.  The light would be an 1,100 watt box light designed to provide no spillover.

 

When questioned by Board members, Mr. Lamberson advised that the light is available locally; he has installed basketball, multi and tennis courts in Monmouth County, Holmdel, Dover, Pompton Plains, all of which were residential properties.  As homeowners want to maximize the use of their yard, the company recommends placement as is proposed here.  The lighting should not affect the neighbors.  It will light the backyard the same as if it were lighting a patio.  The court would be visible to the neighbors.  The court can be used for volleyball, badminton, etc.  It is possible that balls could find their way to the neighbors’ properties – with 15 feet and a hoop toward the house, with passing, it would be possible but mostly likely would be contained in the yard.

 

Mr. Lindsey questioned whether the applicant would be agreeable to a condition that no basketball would be played after 10 P.M.?  Attorney McGann responded that the applicant will comply with the noise ordinance.  Attorney Leckstein stated that the Board member is asking if the applicant would voluntarily accept such a condition regardless.  Mr. Chimento stated that he would ask the same question for the lighting.  Attorney Leckstein stated that these questions are not appropriate for the interpretation.

 

Mr. Drawbaugh questioned Mr. Lamberson whether it was fair to say that the neighbors would see the activity unless there was landscaping.  Mr. Lamberson replied in the positive.  He did not know the dBAs of this basketball court versus a regular court but stated that it would be quieter than a wood floor.

 

Mr. Gasiorowski stated that the questions are not in line with the interpretation.  His client is not present and it was his understanding that only the interpretation would be heard.  He questioned Mr. Lamberson, receiving the following responses:  The light is 1,100 watts and is proposed to light the entire court; the basketball rim is 10 feet high.  Mr. Gasiorowski noted then that this would be at least a 35 by 45 foot 10 foot high block of light.  Mr. Lamberson agreed. 

Mr. Gasiorowski stated then that if someone was sleeping, they would see the light. 

Mr. Lamberson responded that the neighbors would see the players, lit or unlit, there wouldn’t be any glare.

 

When questioned further by Mr. Gasiorowski, Mr. Lamberson stated that soil borings or samples would be taken; the area would be excavated and an 8 inch build up added, a combination of crushed stone and concrete would be added; this is an impervious surface; the pitch would be set at less than ½% toward the applicant’s home.  A removable soft, nylon netting 10 feet in height is available; a sports center can be created, it is up to the client.

 

Mr. Olimpi noted that the brochure provided shows a court on a lot of property and questioned how that compares to this property?  Mr. Lamberson responded that the parent company is from Arizona where land is more available.  Here some are on ¼ acre lots, some towns allow 5 to 10 foot side yard setbacks, Jackson allows them as playgrounds and doesn’t regulate them.

Mr. Olimpi commented that with no noise ordinance, the court could be lit and playing continued to 3 A.M.  Mr. Lamberson agreed.  Mr. Lindsey questioned why the court would be put toward the neighbors and not the homeowner?  Mr. Lamberson compared it to a pool and noted that a pool is set closer for safety purposes.  That he was aware of none were built near the house.  It is put so far away so as not to overpower the property.

 

Nick Barbato, 692 Point Road was sworn in.  He questioned the number of players to which 

Mr. Lamberson responded 5 to 6.  Mr. Barbato commented that it is a potential for boys to be out there using foul language with no control and questioned what would happen if the property were sold.

 

Councilman DeNoia questioned Mr. Lamberson as to whether he was familiar with any other courts in Little Silver?  Mr. Lamberson replied not to his knowledge, he has not installed any in Little Silver.  Attorney McGann stated that Mr. Costello is familiar with a sport court located on Edgewood Avenue.

 

Victor Furmanec, Planner, was sworn in.  He stated that he has testified before the Board on previous occasions.  When questioned by Attorney McGann, he testified that the use is permitted in the R-1 single family residential zone where the minimum lot size is 60,000 square feet.  Accessory uses are permitted; he provided an exhibit listing the uses as off-street parking, swimming pools, signs and other customary accessory uses.  A basketball court is a customary use.  Attorney McGann questioned whether this was so of other towns and Mr. Gasiorowski objected.  Attorney Leckstein stated that he can answer the question.  Mr. Furmanec stated that he had not come across the issue of a basketball court.

 

When questioned by Attorney McGann, Mr. Furmanec stated that customary uses are washing a car, a barbeque, children, swimming pools, tennis courts, basketball games by a rim on a structure or pole in a driveway or in a yard.  Here the activity is the basketball game facilitated by a paved area not prohibited.  He feels it customary and incidental.  This is not a principal use; it cannot exist without the residence.  He heard Mr. Thomas’ testimony and doesn’t feel all accessory uses must be listed.  It is in the Board’s discretion to determine if the use is incidental.  There are periodic uses such as pools, tennis courts, swing sets, playhouses.  As to setbacks and the issue of the 700 square feet contained in a portion of the definition of accessory use or building which requires that it meet the setbacks of a principal structure does not apply.  Under the definition a court is not a structure and not regulated as such.  The Borough’s definition of structure excludes “service utilities entirely below ground or fences, pavements, curbs, sidewalks, patios, gasoline fuel pumps or tennis courts”.

 

Attorney Leckstein noted that a fuel pump is a structure except it is exempt as is a tennis court; what about a basketball court?  Mr. Furmanec responded that it would be considered pavement and not regulated as a structure.

 

Chairman Jacobi questioned as to the statement that Standards control over the local Ordinance.  Mr. Furmanec responded that the RSIS was adopted to govern residential development and grew from varied standards dealing with curbing, pavement, utilities and structures related to the development of residential properties, not accessory structures.  Public improvements, widths of roads, thickness of pavement.  That definition of structure pertains to features and improvements related to residential development, not tennis courts, swing sets, etc.  There is no standard as to construction of a court.  This is not regulated under RSIS and doesn’t provide guidance for pools or tennis courts, etc.  It applies to aspects relating to development of property such as driveways, curbing and drainage.

 

Mr. Furmanec stated that the proposal is for a permitted customary accessory use subject to the 15 foot setbacks and performance standards in the Ordinance pertaining to lighting and noise, not a structure.

 

When questioned by Mr. Gasiorowski, Mr. Furmanec stated that he was familiar with the Municipal Land Use Law and how it applies to Boards providing for its powers and guidance on standards.  In his opinion under the MLUL this is not a structure.  He is familiar with the definition of structure.  He read the definition from New Jersey Zoning and Land Use Administration by William M. Cox “a combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above or below the surface of a parcel of land”.  Mr. Gasiorowski questioned whether he heard the testimony of Rhino Sport in that the proposal is a combination of materials and questioned how the definition was not applicable? 

Mr. Furmanec responded that the MLUL’s definitions are separate from the Borough’s and the Borough’s applies.  It is a structure under the MLUL but under the Borough’s Ordinance it isn’t; it doesn’t apply, it is exempted.

 

Mr. Gasiorowski questioned, if you build a 35 by 45 foot pad and store vehicles there, there is nothing to prevent that?  Mr. Furmanec responded  that if the lot coverage is not exceeded, the driveway could be extended for parking purposes.

 

Mr. Gasiorowski read Section 5.21-1.4 of the RSIS as follows:  “Scope and Applicability”  (a) These rules shall govern any site improvements carried out or required to be carried out in connection with any application for residential subdivision, site plan approval, or variance before any Planning Board or Zoning Board of Adjustment created pursuant to the Municipal Land Use Law or in connection with any other residential development approval required or issued by any municipality or agency or instrumentality thereof.”  Mr. Gasiorowski questioned whether

Mr. Furmanec was aware that a variance was sought?  Mr. Furmanec responded that he was but the RSIS, in his opinion, applies to site improvements related to development of residential property.

 

Mr. Gasiorowski questioned whether there were any residential homes which had a multi-sport court in the yard of an estate residential home?  Attorney Leckstein stated that this is the question before the Board, whether this is a customary use.  Mr. Gasiorowski questioned whether a 35 by 40 foot court with lighting as a gathering for the neighborhood was customary?  Mr. Furmanec responded yes, the Ordinance allows it within 15 feet of the property line.

 

As there were no further questions of the witness, Chairman Jacobi called for comments from the public.

 

Gerry Keane, 17 Holly Tree Lane was sworn in.  He advised the Board that there are two hoops on the block, one 300 feet from the site in question which is his, which is lit with a 1,000 watt bulb as well as the Steckroth’s which is lit.  He doesn’t hear the Steckroth's or his own and has no complaints.

 

Lawrence Buccheri, 117 Rumson Road was sworn in and pointed out that the Board’s decision will impact what residents can and can’t do on their own property.  There are courts and lights throughout town.

 

When questioned by Chairman Jacobi, both Attorneys McGann and Gasiorowski waived summary.

 

Attorney Leckstein cautioned the Board not to be lawyers but to be practical citizens and interpret the Zoning Ordinance which is in place to control activity.  The first questions is, is this a customary use?  There is no question that the activity of playing is customary.  The question is at what point does it become something other in size and scope.  Second, is this a structure?  The Ordinance specifically exempts tennis courts.

 

Chairman Jacobi questioned whether the local Ordinance controls the definition of structure or does the State Statute?  Attorney Leckstein stated that he was not sure the local Ordinance would be exempted.  If permitted, it would probably be defined as a structure.  Chairman Jacobi questioned State supremacy over local?  Attorney Leckstein responded that he hadn't ever heard it applied. 

 

Attorney Leckstein stated that if the Board finds the use customary, it must go to the setback issue and determine if it is a structure.  If not customary, a use variance and new application would be needed.

 

Chairman Jacobi stated that he felt it was a structure and the larger setbacks would apply.  He was not sure as to the question of customary.

 

Mr. Scott agreed that he felt it was a structure as it is permanent.  As to the issue of customary, he walked the property and noted that if a tree were moved, there would be enough room for the court instead of a separate structure.  He was up in the air with regard to the issue of whether it was customary.

 

Mr. Chimento stated that he considered it a structure as well.  He felt that basketball is a permitted use, people do have courts.

 

Councilman DeNoia agreed that this is an activity that is allowable.  He has difficulty with creating a structure 1,575 square feet in size for a particular purpose that would be illuminated with one function only which is unlike a basketball hoop attached to a garage.  The size, magnitude and fact that it is an independent structure goes beyond customary and he did not feel it was a permitted use.  This is beyond a backboard on a garage.  Mr. Drawbaugh and Mayor Castleman agreed.

 

Attorney Leckstein confirmed what was said as follows:  The Board finds the proposal 1. Not a permitted customary accessory use and a use variance would be required and 2. The proposal is a structure larger than 700 square feet in size which would be required to meet the setbacks of a principal structure.

 

Mr. Scott Moved to find that the proposal is not a permitted customary accessory use and a use variance would be required.  Seconded by Mayor Castleman and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman

Jacobi, Mr. Lindsey, Mr. Scott and Mr. Drawbaugh

 

Negative:          Mr. Chimento and Mrs. Montella

 

Abstentions:      None

 

Councilman DeNoia Moved to determine that the proposal is a structure larger than 700 square feet in size which would be required to meet the setbacks of a principal structure.  Seconded by Mr. Olimpi and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman

Jacobi, Mr. Lindsey, Mr. Scott and Mr. Drawbaugh, Mr. Chimento

and Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

Chairman Jacobi stated that the above determinations make the question of hearing the variance moot.  Attorney Leckstein stated that based upon the interpretation and the above stated findings, the Board should deny the application.  Mr. Scott Moved to deny the application.  Seconded by Mr. Drawbaugh and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman

Jacobi, Mr. Lindsey, Mr. Scott and Mr. Drawbaugh, Mr. Chimento

and Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

10:15 P.M., Chairman Jacobi called a recess.  The meeting was reconvened by Chairman Jacobi at 10:20 P.M. with it being noted that all Board Members remained present.

 

Application of Art Murphy and Tim Murphy to demolish the existing structure and construct an 81’ by 54’ two and one half story single family home and add fill on the  property at 436 Little Silver Point Road, Block 65, Lot4, in the R-1 Zone which violates the minimum required lot area of 60,000 square feet where 45,000 square feet is existing; the minimum required improved lot frontage of 160 feet where 150 feet is existing; the minimum required side yard setback for a principal building 34.5 feet in height is 43.5 feet on each side where 37.5 feet and 31.5 feet is proposed; and 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 improvements and fill below the six foot contour are proposed.  Note:  A Variance Application and a Coastal Wetlands Application is required. Existing easement is proposed to be condemned and recreated on the north side of the property:

 

Attorney Leckstein’s review of service found it in order and the Board to have jurisdiction.

 

Martin McGann, Esquire appeared on behalf of the applicants.

 

James Goddard, PLS was sworn in.  He advised the Board that he is licensed in the State of New Jersey and was accepted by the Board.  He testified that he prepared the survey and proposed plot plan.  When questioned by Attorney Leckstein, he advised that he was a licensed surveyor but not an engineer.  Attorney Leckstein stated that a grading plan must be prepared by an engineer and suggested that the application be carried as the grading plan was not acceptable.  Brief discussion determined that Mr. Goddard would testify to the existing grading and not the proposed. 

 

When questioned by Attorney McGann, Mr. Goddard testified that the existing structure is a ranch.  He is familiar with the proposed setbacks after demolition.  Proposed is 37.5 feet, an increase in the side yard of 13 feet and on the westerly line now 40.63 feet a 31.4 foot side yard is proposed or 9 feet less.  Combined they are 4 feet greater under the proposed plan.  The proposed driveway is 32 feet from the western property line, 20 feet further than existing.  The front and rear setbacks comply as do building and impervious coverage.  He reviewed an overlay of the existing and proposed.  The proposed house will be more centered compared to the existing and this is where the additional 13 foot side yard is picked up.

 

When questioned as to the elevation of the present structure, Mr. Goddard advised that the first floor elevation is 9.1.  The existing 6 and 7 contour lines go around the proposal; the line touching the porch in the rear is at 5.  The proposal slopes from the street to the rear.  The flood elevation is 9 feet and the first floor is proposed at 10 feet.

 

Mrs. Montella questioned whether it was allowable to have the garage below the flood elevation?  Mr. Goddard replied that it was.  Mr. Chimento questioned why it wouldn’t be brought up a foot?  Mr. Goddard responded that it was done to get a 2.8% slope at the elevation of the driveway to the inlet at 95 feet back.  Mrs. Montella suggested increasing the height.  Mr. Goddard responded that that would increase the amount of fill.  Mr. Blash added that it would increase the side yard setback requirements as well.

 

James Anderson, Architect, was sworn in.  He advised the Board that he has been licensed since 1991 in New Jersey and New York and has testified before this Board on previous occasions.  He was accepted by the Board.

 

Mr. Anderson testified that the proposal is about 3,800 square feet, not including the garage.  The lot is undersized with houses on both sides and to the rear wetlands.  The side yard variances are necessary due to the proposed height of the two story home, proposed at approximately 34.5 feet with a staggered ridge line.  The frontage is 10 feet deficient.  He submitted an exhibit marked A-1, a colored rendering to show the height of the home and A-2, a front elevation showing the height at the perimeter which is less.  On the west or garage side, the height is lower at 16 to 17 feet; the ridge increases to 27’10” and to another ridge line at 20 feet and then an increase to 29’ and to the highest point at 34.5 feet.   If averaged, the entire ridgeline is about 30 feet.  Also marked were A-3, a color rendering/site plan showing the green area, home and pool and A-4, the original structure pushed far to the east with a lot of pavement.  He stated that the proposed home works well with the adjacent homes.  Proposed building coverage is 7.8%.

 

When questioned by Mr. Drawbaugh, Mr. Anderson confirmed that no second story decks are proposed.  Attorney Leckstein noted that this may be a condition of approval.

 

Arthur Murphy was sworn in.  He advised the Board that he was unaware that he needed an engineer for a single lot as discussed earlier.  He pointed out that he worked with the Borough Engineer with regard to the proposed changes to the existing easement.

 

Mr. Blash noted for the record that the law states that a surveyor can’t do proposed grading, however, his architect can, he can sign and seal the plan.

 

When questioned by Mr. Drawbaugh as to the amount of fill, Mr. Murphy responded that it would be 20 tandem loads, 4 loads of which would be out of the ground on the job.

 

Chairman Jacobi called for questions or comments from the public.

 

Rosemary Brewer, Environmental Commission Chair, was sworn in.  She pointed out that the applicant is requesting a coastal wetlands permit and the application doesn’t say that.  There are a number of open questions some of which include the amount of fill and where it would be placed.  This must be approved by the Environmental Commission as well.  Mrs. Montella suggested that all of the questions on the application be answered.  Mr. Murphy confirmed that this would be done.

 

After brief discussion, Mr. Drawbaugh Moved to carry the application to the January 3, 2006 meeting.  Seconded by Mr. Chimento and a unanimous voice vote followed.

 

Resolutions:

 

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

 

Application of Francine Dudick to demolish the existing deck and construct a 24’ by 35’ one story addition consisting of a family room, bathroom and office on the property at 175 Silverside Avenue, Block 70, Lot 12, 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 side yard setback for a principal structure of 15 feet on each side where 15.05 feet and 14.24 feet is existing.  *Note:  Plan states that AC condenser will be removed.  If relocated, condenser must be placed at least 15 feet from any side or rear property line:

 

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

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman

Jacobi, Mr. Scott, Mr. Drawbaugh, Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

Application of Peter and Amanda Haytaian to construct a 500 square foot in-ground swimming pool with associated patio and 4 foot high fencing on the  property  at 420 Little Silver Point Road, Block 65, Lot 3, in the R-1 Zone which violates the minimum required lot area of 60,000 square feet where 51,000 square feet is existing; 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 improvements and shall be fill below the six foot contour are proposed; and an outdoor swimming pool located not less than 25 feet from the side or rear of the residence where a swimming pool is proposed 17.5 feet from the rear of the residence.  Note: A Variance Application and a Coastal Wetlands Application is required. 

 

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

 

Affirmative:      Mayor Castleman, Councilman DeNoia, Mr. Olimpi, Chairman

Jacobi, Mr. Scott, Mr. Drawbaugh

 

Negative:          Mrs. Montella

 

Abstentions:      None

 

Site Plan Application of Holiday Meats, Block 30.01, Lot 133, 42 Birch Avenue, B-2 Zone:

 

Mayor Castleman Moved to approve the Resolution as presented.  Seconded by Mrs. Montella and the following Roll Call was taken:

 

Affirmative:      Mayor Castleman, Chairman Jacobi, Mr. Scott, Mr. Drawbaugh and

Mrs. Montella

 

Negative:          None

 

Abstentions:      None

 

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

 

Miscellaneous:  None

 

There being no further business to come before the Board, Mr. Scott Moved to continue the meeting to January 3, 2006 and to adjourn at 11:05 P.M.  Seconded by Mr. Lindsey and a unanimous voice vote followed.

 

                                                                        For Chairman K. Edward Jacobi

 

                                                                                                                                                                                 

                                                                        Diane L. Ramsey, CLUA                                                                                                          Secretary/Zoning Officer                      

 

Dated:  December 28, 2005


         
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Borough of Little Silver
480 Prospect Avenue, Little Silver, NJ 07739
732-842-2400 phone      732-219-0581 fax




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