February 16, 2012

MINUTES TOWNSHIP OF WEST ORANGE ZONING BOARD OF ADJUSTMENT MEETING February 16, 2012 The West Orange Zoning Board of Adjustment held a regular meeting on February 16, 2012 at 8:00 PM at 66 Main Street, West Orange, N.J. in Council Chambers. Chairman Neuer called the meeting to order at approximately 8:00 P.M. It was announced that notification of this meeting was given to the Township Clerk, the West Orange Chronicle, and posted on the Township Bulletin Board on November 29, 2011 in accordance with the “Open Public Meetings Act.” Chairman Neuer asked everyone to stand for the Pledge of Allegiance Alice Beirne, Esq., Board Attorney, read the Opening Statement. PRESENT: Bruce Buechler, Gregory Bullock (8:03 pm), Deborah Gabry, Phil Neuer, Bart Quentzel, Eric Sacks, Mark Sussman, William Steinhart ABSENT: Alice Weiss (excused absence) ALSO PRESENT: Susan Borg, A.LC.P., P.P., ALA. Board Attorney: Alice Beirne, Esq. Board Secretary, Rose DeSena Harvey Grossman, Public Advocate Chairman Neuer noted for the record that, even though there was a court stenographer at the meeting, the only official transcript for this meeting, as with all of our meetings, is Ms. Dillon’s transcript. ANNOUNCEMENTS Future Meetings: March 15, 2012 (Regular Meeting) — 8:00 PM. April 19, 2012 (Regular Meeting) — 8:00 PM May 17, 2012 (Regular Meeting) — 8:00 PM June 14, 2012 (Regular Meeting) — 8:00 PM MINUTES Adopt Minutes: January 19, 2012 meeting Chairman Neuer asked if there were any comments regarding the minutes. Mr. Buechler made a motion to adopt the minutes as submitted and Ms. Gabry seconded. All were in favor. Noted for the record that Chairman Neuer was present but not voting

SWEARING IN Township Professional, Planning Director Susan Borg was sworn under oath. DISCUSSION 1. ZB-11-17/Canterbury Village — Final Site Plan Approval Chairman Never stated that Eric Keller sent a memo to the Board stating that he has reviewed the final plans for Canterbury Village and they are in accordance with the approvals granted by this Board. The Chairman stated that he will sign them and requested that the Board Secretary do likewise. 2. ZB-10-15a/Cambria Suites — Request for an extension Note for the record that Mr. Steinhart recused himself and stepped down from the dais. Donna Erem, attorney for applicant, approached the podium. She stated that she has submitted all of the paperwork that was requested by the Board, along with the monthly report for February and is here on behalf of her client requesting an extension. Chairman Neuer stated that her client did not give the Board the 30 day notice, which was required if they wanted to request an extension. He said that Ms. Erem was not at the meeting when it was imposed but that it was her responsibility to know from her colleague who attended the meeting. Chairman Neuer stated that her associate, who was present at that meeting, did know. He said that if the Board does grant another extension, May 1* will be the deadline to let the Board know. Ms. Erem stated that on January 23, they didn’t know that there was going to be a problem; she couldn’t reach Mr. Mielbye so therefore she could not give the Board that information. Chairman Neuer stated that the Board asked for some evidence, from the applicant, showing that the contract for closing on the property didn’t expire. He stated that Ms. Erem submitted a copy of the 22" amendment to that contract that extended the closing date to April 2, 2012. Chairman Neuer continued by saying that the applicant is now requesting an extension for filing the sub-division deeds. He stated that the Board had imposed a February 17, 2012 deadline and they are asking that it be extended to May 31, 2012. Ms. Erem stated that she disagreed with the Chairman and said that, because they are asking for this extension, it is not required. Mr. Buechler asked Ms. Erem why she was here if Board approval is not required. Ms. Erem said that it is just a matter of record and that she needs to protect her client. Mr. Buechler suggested entertaining another formal

Erem why she was here if Board approval is not required. Ms. Erem said that it is just a matter of record and that she needs to protect her client. Mr. Buechler suggested entertaining another formal resolution and stated that if the applicant seeks further extensions that they will have to file a new application for whatever time they think they need. Chairman Neuer stated that if the financing and land swap is not consummated and the applicant is prepared to change the parking, then they will have to submit a new application. He also

stated that if the financing is not in place that the Board requires a 30 day in advance notice which is May 1, 2012. Ms. Borg asked why the applicant will need a new application and the Chairman stated that the Board cannot keep extending it indefinitely; that is not permitted by the Municipal Land Use Act. Mr, Buechler stated that this application has been pending for months and the Board rushed the hearing and decision so they could get the funding. Ms. Erem stated that everyone has been working very hard to keep it together and there are some facts she cannot disclose to the Board, Mr. Buechler stated that the Board has accommodated the applicant for sixteen months but something has to happen here. He made a motion to pass the resolution, extending the deadline until May 31, 2012, and the applicant must notify the Board by May 1, 2012 if they need another extension or if they need additional time to file a new application. Ms. Erem asked for clarification and Mr. Buechler said that if May comes and goes, the extension is expired. Chairman Neuer summarized by saying that the Board will grant the extension until May 31, 2012, subject to the applicant continuing to submit monthly reports. He said that the Board requires that, whether they file a new application or seck an extension, the applicant must notify the Board by May 1, 2012. Chairman Neuer stated that approving the extension will be up to the Board and he seconded the motion made by Mr. Bucchler. Vote was as follows: Buechler: Yes Steinhart: Recused. Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Neuer Yes Sacks: Yes RESOLUTIONS 1 ZB-11-15/GigaBeam Application denied without prejudice Block: 84.01; Lot: 22; Zone: B-2 “D” variance for use to place two (2) six foot dish antennas on an existing tower and necessary equipment to be cabinet mounted on H-frame at ground level. Chairman Neuer asked if there were any comments from the Board. Mr. Buechler stated that he gave his comments to Ms. Beime regarding the Bankruptcy Code and made a motion to adopt the resolution with the changes. Ms. Gabry seconded. ‘Vote was as follows: Buechler: Yes Steinhart: Yes Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Never Present but not voting - Sacks: - Did not attend hearing

2. ZB-11-22/Ali Application approved 1/19/12 Block: 120.02;Lot: 33 & 34; Zone: R-T 94 Watchung Avenue Secking “C” variance to rebuild a garage Chairman Neuer asked if there were any comments from the Board. Mr. Bucchler stated that he gave Ms, Beirne his comments before the meeting and made a motion to adopt the resolution with the changes. Mr. Sussman seconded. Vote was as follows: Buechler: Yes Steinhart: Yes Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Neuer Present but not voting - Sacks: - Did not attend hearing 3. ZB-11-21/Blenden Application approved 1/19/12 Block: 174; Lot: 25; Zone: R-5 26 Lakeview Avenue Seeking “C” variance for impervious lot coverage for an addition and replacing existing deck with a smaller deck Chairman Neuer asked if there were any comments from the Board. Seeing none, he asked for a motion to adopt. Ms. Gabry made a motion to adopt; Mr. Sussman seconded. Vote was as follows: Buechler: Yes Steinhart: - Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Neuer Present but not voting - Sacks: - Did not attend hearing APPLICATION(S) 1. ZB-12-02/Auburn Data Systems, LLC Block: 84.01; Lot: 22; Zone: B-2 10 Marcella Avenue Secking a “D” variance for conditional use and a “C” variance for rear set back to install five (5) antennas on an existing tower and an electronic equipment cabinet

EXHIBITS A-1- Compliance report prepared by Pinnacle Telecom Group dated 8/24/11 A-2, B-2, C-2, D-2, E-2, F-2 — Photographs DISCUSSION Michael Lavigne, attorney for the applicant, approached the podium. Chairman Neuer stated that there was a letter of authorization from the property owner, included in the application package, signed by Lisa E. Kahn and asked Mr. Lavigne who owns the property. Mr. Lavigne stated that MCI is the owner of the property. Chairman Neuer said that the letter neither says anything about MCI nor does it identify who Ms. Kahn, He stated that he is concerned if the Board can even proceed with this application. Mr. Lavigne stated that MCI is located in Dallas, Texas and that the tower company received approval from them to file and pursue this application. Ms. Beirne asked Mr. Lavigne if he knew who Lisa E. Kahn was and he said he didn’t know. Ms. Beime stated that they can proceed with the application but the Board cannot vote until we receive the owner’s proper authorization, She said that if the authorization comes from Ms. Kahn, then she should identify herself as being authorized by MCI to sign for them and to provide a proper entity resolution. Ms. Borg asked if they needed a letter from the tower owner also. Chairman Neuer stated that the only approval required is from the property owners. Mr. Buechler stated that, because there is a license agreement, the property owner did give approval. Mr. Lavigne stated that the applicant is proposing to install five antenna dishes on an existing 200” lattice tower at 10 Marcella Avenue. He said that the dishes will be mounted at 155’ and 90° above ground level. Mr. Lavigne stated that there are many towers in that location. He also stated that at one time there were a number of these dishes on this tower but today it is completely stripped of those dishes. Mr. Lavigne gave the background of the applicant stating that they are an FCC licensee and the purpose of the antennas will be to transmit data from New York to Chicago. Chairman Neuer said that Ms. Borg stated in her report that this is a private company and the use is limited to their clients only and will not service the general public. Mr. Lavigne said that they do have customers that use their company to transmit data by microwave link to New York to Chicago. Ms. Borg asked why they need these specific dishes. Mr. Lavigne

l public. Mr. Lavigne said that they do have customers that use their company to transmit data by microwave link to New York to Chicago. Ms. Borg asked why they need these specific dishes. Mr. Lavigne stated that they presently use landlines and his expert can answer that question. Mr. Lavigne stated that he filed an OPRA request and requested copies of all prior resolutions for 10 Marcella Avenue. He stated that he only received Planning Board resolutions and asked if any applications had come before the Zoning Board. Ms. Borg stated that there was only one last year but the applicant filed bankruptcy and it was denied without prejudice.

Mr. Lavigne stated that he is questioning the conditional use “D” variance as part of the application. Ms. Borg stated that the application requires three “D” variances. Chairman Neuer stated that this is the Board that hears these types of applications. Mr. Buechler stated that if Mr. Lavigne thinks otherwise he should speak now. Mr. Lavigne stated that he would like an interpretation of the zoning ordinance 25-4 for commercial antennas because he believes what his applicant is proposing falls under that. Ms. Beirne said that she agrees with him and that it does fall under commercial antennas according to the ordinance. Mr. Lavigne stated that be is questioning the “D” variance for more than one principal use. Ms. Beime stated that it was already determined that every carrier has been a different use. Chairman Neuer questioned how Ms. Borg came to the conclusion about two uses. Ms. Borg stated that each antenna grouping is a different use. Chairman Neuer asked Mr. Lavigne if he would like to amend the application to include an interpretation asking if it is more than one principal use and Mr. Lavigne said yes. Chairman Neuer also asked Ms. Beirne if it is considered more than one principal use and she stated that they have always considered them a different use and it is more than one use on a principal lot. Chairman Neuer asked for a motion to approve amending the application; Mr. Bullock made the motion and Mr. Bucchler seconded. The vote was as follows: Buechler: Yes Steinhart: Yes Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Neuer ‘Yes Sacks: - Chairman Neuer stated that it is a conditional use. Mr. Quentzel stated that he is conflicted and feels that it’s a commercial antenna and not a different use. Chairman Neuer stated that, historically, when you have a different antenna on the same tower it is a different use and that is how the Board has historically considered similar matters. Mr. Lavigne stated that, with it being a conditional use, the ordinance for the height is under 200°. He questioned if it was still a “D” variance. Mr. Buechler stated that the ordinance requirement is under 200’; Mr. Lavigne said that they do meet that requirement. After some discussion the consensus was that the applicant does not need a height variance. Mr. Lavigne presented his first witness. Mr. Dan Collins approached the podium and was

et that requirement. After some discussion the consensus was that the applicant does not need a height variance. Mr. Lavigne presented his first witness. Mr. Dan Collins approached the podium and was sworn under oath. Mr. Collins stated that he was an FCC compliance expert; he has an electrical degree and has testified before this Zoning Board before in September, 2011. Chairman Neuer accepted his credentials as an FCC compliance expert. Mr. Collins stated that his report was included in the application package. Chairman Neuer asked Mr. Collins if he was to ask him to read his report, would he testify that it was accurate. Mr. Collins replied yes and Chairman Neuer admitted Mr. Collins’ compliance report into evidence as exhibit Al.

Mr. Collins described the radiation from the microwave transmission radio frequency as being very low. Mr. Quentzel asked if the height of the dishes affects the radiation. Mr. Collins stated that distance reduces the radiation transmission and the higher the dishes are the better. Mr. Sussman asked if something has such low power, than how does it transmit the power. Mr. Collins stated that the reflecting rod transmits the power. Chairman Neuer asked Mr. Collins for an explanation of some of the wording in his report. Mr. Grossman asked if the point to point microwave transmission affects cell phones, television or wi-fi transmissions and Mr, Collins replied no. Chairman Neuer asked if there were any questions from the Board. Seeing none he asked if any members of the public had any questions for Mr. Collins. Ms. Yanmeng Gan approached the podium stating she lived at 140 Leonardo Drive. Ms. Gan stated that she lived in the Eagle Ridge Townhouses above the site and is very concerned about health issues and asked if there were any. Mr. Collins stated that there were none. Ms. Gan stated that there will be five dishes on the tower and Mr. Collins stated that all five dishes are a total of 5 watts. He stated that this is less than your microwave oven gives off in your home. Chairman Neuer asked how many of those dishes are going to be pointed towards the townhouses and Mr. Collins said there will be no more than two pointed in that direction. Ms. Gan stated that her cell phone signal in her home is interrupted and they lose the signal all of the time. She wanted to know if these dishes will further aggravate the situation. Mr. Collins replied no that they do not cause interference to cell phone. Chairman Neuer stated that he understands her health concerns and that he also loses calls at that spot and no one knows what causes it. He stated that cell phone service is not perfect. There were no other questions from members of the public. Ms. Borg asked Mr. Collins if the dishes were smafler could they still function. Mr. Collins said to ask the radio frequency engineer that question. He said that if the dish was smaller it would require more power to travel the same distance and that no microwave dish could exceed the FCC standards. ‘There were no more questions for this witness. Mr. Lavigne called his second witness. Mr. Anthony Suppa approached the