September 22, 2011

MINUTES TOWNSHIP OF WEST ORANGE ZONING BOARD OF ADJUSTMENT MEETING SEPTEMBER 22, 2011 The West Orange Zoning Board of Adjustment held a regular meeting on September 22, 2011 at 8:00 PM at 66 Main Street, West Orange, NJ in Council Chambers. Chairman Philip Neuer called the meeting to order at approximately 8:03 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 December 17, 2010 in accordance with the “Open Public Meetings Act.” Alice Beirne, Esq., Board Attorney, read the Opening Statement. PRESENT: Bruce Buechler, Gregory Bullock, Deborah Gabry, Phil Neuer, Bart Quentzel, William Steinhart (8:07 pm), Mark Sussman, Alice Weiss (8:07 pm) ABSENT: None ALSO PRESENT: Susan Borg, A.LC.P., P.P., ALA. Board Attorney: Alice Beirne, Esq. Board Secretary, Rose DeSena ANNOUNCEMENT OF FUTURE MEETING DATES Future Meetings: October 24, 2011 (Special Meeting Golda Och) 7:30 P.M. October 27, 2011 (Regular Mecting)— 8:00 P.M. November 17, 2011 (Regular Meeting) — 8:00 P.M. December 8, 2011 (Regular Meeting) — 8:00 P.M. January 19, 2012 (Regular Meeling)— 8:00 P.M. MINUTES Adopt Minutes: August 18, 2011 regular meeting Alice Beirne questioned Chairman Neuer regarding the vegetable garden area Susan Borg included in her repost for application ZB-11-12/Gaeta. She asked if the applicant needed anything more than mulch in the area after the garden was gone. Ms. Beirne also asked if the applicant had consulted with Susan Borg regarding this as stated in the 8/18/11 minutes. Susan Borg stated she has not heard from the applicant at all. Chairman Neuer recommended keeping it consistent with just the vegetable garden and mulch. Chairman Neuer asked for a motion to approve the Minutes containing and incorporating this recommendation; Ms. Gabry made the motion and Mr. Sussman seconded.

All were in favor. Note: Ms. Weiss and Mr. Steinhart were not present at the 8/18/11 meeting and were present at the 9/22/11 meeting but not voting on these Minutes. Adopt Minutes: September 19, 2011 Special meeting for Golda Och Chairman Neuer asked if any Board member had any comments or corrections regarding these minutes, besides those submitted previously by Messrs. Neuer and Buechler. Seeing no other comments he asked for a motion to adopt. Mr. Sussman made a motion to adopt and Ms. Gabry seconded. All were in favor. SWEARING IN Township Professionals, Planning Director Susan Borg RESOLUTIONS ZB-11-12/Gaeta APPLICATION APPROVED 8/18/11 Block: 113.01; Lot: 131,132; Zone: R-T 18 Park Terrace Secking a “c” variance for side yard set- back for an existing deck DISCUSSION Chairman Neuer asked if there were any questions or comments other than the previous one’s regarding the vegetable garden. Sceing none Ms. Gabry made a motion to adopt and Mr. Sussman seconded. The vote was as follows: Buechler: - Steinhart: - Bullock: Yes Sussman: Yes Gabry: Yes Weiss: - Quentzel: Yes Chairman Neuer: Yes ZB-11-16/Nissel APPLICATION APPROVED 8/18/11 Block 179.08; Lot: 12; Zone; R-5 40 Mayfair Drive c” variances for front and side yard set-backs for building a handicap ramp

Chairman Never asked if there were any questions or comments. Ms. Beirne stated that the last time the Board approved an application to install a handicap ramp it was conditioned upon the ramp having to be removed when the house was sold. She asked the Chairman if that should be included in this resolution. After some discussion between Board members, Chairman Neuer said to include the condition that the ramp must come out if the house is sold by the applicant or if the home is no longer occupied by a handicapped person. The ramp must be removed within 60 days of the transfer of title or the departure of the handicapped individual. Ms. Gabry made a motion to adopt and Mr. Sussman seconded. The vote was as follows: Bullock: Yes Steinhart: - Gabry: Yes Sussman: ‘Yes Chairman Neuer: Yes Weiss: - Quentzel: Yes Buechler: - APPLICATIONS 1. ZB-11-05/Carp, Gerald and Ellen CARRIED FROM 6/16/11 Block: 82.02; Lot: 13.05; Zone: R-1 63 Ridge Road Seeking “C” variances for the height of an existing fence and setbacks of an existing tennis court EXHIBITS A-1 1 (pre-marked) Enlarged plot plan dated 6/6/11 A-{2 Curriculum Vitae Elizabeth C. McKenzie AICP, PP DISCUSSION; Chairman Neuer stated that, before we begin, there will be a mandatory break at 9: 30pm and the meeting will end at 11:00 pm. He also stated that the toal, as always is for the Board to be able to conclude al] of the applications on the agenda tonight. Charles Lorber, Esq., attorney for the applicant, approached the podium. Chairman Neuer described the application; stated that it was first heard on 5/16/11; mentioned all of the previous witnesses; stated it resumed on 6/16/11 and, at that time, the applicant requested an adjournment until 9/22/11, Mr. Lorber stated that was correct. Chairman Neuer asked Mr. Lorber if all of the applicant’s Municipal court hearings were over and he stated no, that there were two more dates.

Mr. Buechler stated that he recently received several pages of court transcripts but they do not match up to the transcript pages that Mr. Lorber previously sent to them. Mr. Lorber stated that his secretary sent them and he wasn’t sure what she sent, Mr. Buechler said his second question was regarding the tennis court and asked if anyone had used it to play on since the last meeting. Mr. Lorber said no one has played. Chairman Neuer asked Mr. Carp to approach and stated there was no need for him to be sworn in because he was sworn in on 5/19/11. The Chairman asked Mr. Carp if the net was down and has the tennis court been used. Mr. Carp stated that he and his wife had used the court, once or twice, to lob balls. He said that they couldn’t play on the court because it wasn’t prepped and they pretended to volley the ball. Mz, Buechler stated that the reason he asked was because there was a representation that the tennis court was not to be used. Mr. Carp stated that he did not recall that but Mr. Lorber stated that he did. Mr. Buechler said that this request was not honored. Mr. Carp stated that it was his error and he would have never used the tennis court if he knew that. He also stated that they joined a tennis club to play tennis this summer. Mr. Lorber stated that he had made that representation. Mr. Buechler said that the Board has to assume that Mr. Lorber relayed that back to Mr. Carp but Mr. Carp stated that he did not recall it. Chairman Neuer stated that he was confused and asked Mr. Carp if he said that he played tennis or did he volley. He went on to say that if you volleyed then you were playing the game. Chairman Neuer stated for the record, and in the presence of Mr. Carp, that the net will come down and the tennis court will not be used for any reason or purpose until the Board approved the use of that facility. Mr. Lorber asked Michael Lanzafama to approach the podium, Chairman Neucr stated there was no need to swear Mr, Lanzafama in because he was sworn in on 5/19/11. He stated that, at the last meeting, there was an impervious issue and noted that they re-noticed with the impervious variance included. Ms. Gabry stated that she was not at the 6/16/11 meeting and asked Chairman Neuer if she would be allowed to vote at this meeting. Chairman Neuer stated that all they did was adjourn so she would be able to vote. Mr. Sussman stated

ot at the 6/16/11 meeting and asked Chairman Neuer if she would be allowed to vote at this meeting. Chairman Neuer stated that all they did was adjourn so she would be able to vote. Mr. Sussman stated that he was also not at that meeting and Chairman Neuer stated all the Board members that were present on 5/19/11 can vote this evening. Mr. Lorber presented a revision of Exhibit A-11, an enlarged plot plan, which was previously marked at the 5/19/11 meeting. He stated that it had been revised on June 6", Chairman Neuer asked if there has been a revision since June 6" and Mr. Lorber said no. Mr. Lorber stated that Mr. Lanzafama testified at the last meeting regarding the height of the fence and, at that time, the question came up about impervious coverage. He said that the Board did not have enough information regarding the striping on the play area of the tennis court and the distances to the Seton Hall Property, Mr. Lorber stated that he took Mr. Lanzafama back to

the tennis court to look at it again and then proceeded to ask Mr, Lanzafama what he saw at that time. Mr. Lanzafama pointed to the plot plan, describing all of the measurements regarding the tennis court play area and also the set-backs from the fence. He continued pointing out all impervious coverage areas on the lot that could be reduced to meet what is permitted. He also addressed the 5 encroachment on the Seton Hall property. He stated that they looked at two different areas to address this, one being the walk way on the south side and reducing a portion of an existing driveway by 257 sq. feet. Mr. Buechler asked if there were any special drainage features in the tennis court area. Mr. Lanzafama stated that when he went back to look and that there were none near the tennis court or cabana area but near the inlet on Ridge Road there might be a drain. Chairman Neuer asked, from an engineering standpoint, is there any reason why the 5’ cannot be removed from the Seton Hall end of the property and added to the other side. Mr. Lanzafama said that the tennis court was established and set in the soil and if they “put a ribbon around it” you will get differential of settlement in the soil which will interfere with the playing surface. Chairman Neuer asked if there were any questions for Mr. Lanzafama. Ms. Borg wanted to know the composition of the walks that they would remove. Mr. Lanzafama replied that they are brick pavers. Ms. Borg asked if they were sct in concrete and he replied no they were set in stone dust. Ms. Borg asked if they would replace what they removed with grass and he replied yes. Ms. Borg also asked what material the driveway is made of and Mr. Lanzafama replied it was macadam. There were no more questions for Mr. Lanzafama. Mr. Lorber called his next witness. Mr. Thomas R. Farley, 67 Ridge Road, approached the podium and was sworn under oath, He stated he is a retired attorney and lived on Ridge Road for 45 years. He stated that the driveway on Mr. Carp’s property on Ridge Road services his house, Mr. Buechler asked if he enters his property by the roadway on Mr. Carp’s property on Ridge Road and Mr. Farley said yes. Mr. Farley pointed out the driveway and the access road for his property, on the plot plan, and stated that the easement would be beueficial for his use and not Mr. Carp’s property. Mr. Bucchler asked Mr. Farley if he

d out the driveway and the access road for his property, on the plot plan, and stated that the easement would be beueficial for his use and not Mr. Carp’s property. Mr. Bucchler asked Mr. Farley if he had any objection to the tennis court and he replied no and that he had no objection to the 10’ fence either. Chairman Neuer asked if there were any other questions for Mr. Farley and there were none, Mr, Lorber called his next witness. Ms. Elizabeth C, McKenzie approached the podium and was sworn under oath. She stated her qualifications as a licensed planner in the State of New Jersey and had her own consulting firm. Chairman Neuer asked if she had testified in front of any Boards in the State of New Jersey and if she is qualified as a witness and Ms. McKenzie replied yes, that she has even testified in West Orange once. Chairman Neuer accepted her qualifications as an expert in the field of planning.

Ms. McKenzie offered the Board her resume and Chairman Neuer asked that it be marked as Exhibit A-12, Chairman Neuer asked why Ms. McKenzie’s report was not attached with the application. Ms. Borg stated that she never realized there was going to be a request for a “1D” variance and that the rule is you only need a report from a planner when they are requesting a “D” variance. Chairman Neuer asked if the Board recommends Ms. McKenzie proceeding based on her summary attached to the application; the Board allowed her to proceed. Ms. McKenzie stated that she is prepared to testify on the additional impervious coverage this evening besides her argument that will prove why the “C” variances should be granted. Ms. McKenzie began by describing Mr. Carp’s property; specifically the area that encroaches the Seton Hall property and how nicely Mr. Carp had landscaped it. She stated that the fence that also encroached onto the Seton Hall property has since been removed. Ms. McKenzie stated that the 5” set-back that is required is for the purpose of doing maintenance around the building. She stated that a tennis court or a shed can be maintained without that 5’ distance. She also stated that even though screening or buffering is not required they can provide it. She noted that the Seton Hall property has an extremely wooded area of about 300’ before it actually gets to the football field. Ms. McKenzie went on to explain that the tennis court could be cut back, but to move it over would compromise the surface. She claimed that the cabana and the pergola would also have to be removed and this would create a lot of disturbance in the neighborhood. She stated that if they can find a solution, without moving the tennis court, they will comply. She also stated that the tennis court is out of the way and not near any other property except Mr. Farley, the neighbor who testified, and he stated that he does not have a problem with it. Mr. Buechler asked Ms, McKenzie why the cabana had to be removed because there is 30-40’ from the property line to the back area. Chairman Neuer asked why they would tear down the pergola when they can just go around the other way to move the tennis court; he stated that he’s just not buying it. Ms. McKenzie stated that in order to relocate the tennis court, changing anything would disturb the neighborhood. Chairman Neuer stated that

the tennis court; he stated that he’s just not buying it. Ms. McKenzie stated that in order to relocate the tennis court, changing anything would disturb the neighborhood. Chairman Neuer stated that violation of our set back law is also disturbing. Ms. McKenzie continued by saying that there is quite a bit of lawn area before you get to the Seton Hall property. She stated that the tennis court has been there for a long time and it is attractive to the site; it might not be necessary to take that step to relocate the hard surface area of the court. That is her argument, she said. Mr. Buechler said to Ms. McKenzie that she stated the tennis court is attractive to the neighborhood but yet said that no one is near the Carp property. Ms. McKenzie responded by saying that the tennis court and all of the landscaping is already there now and is attractive. She said that she’s not saying it was done correctly but just saying that it’s already there now and asking how they can correct this.

Chairman Neuer stated that there is no one here to tell the Board that the pergola has to be moved. Ms. McKenzie stated that it’s all about shifting the tennis court and adding it to the other end and that’s what she said she was saying. Ms. McKenzie stated that her second point is regarding the height of the fence. Chairman Neuer said that before you start, Mr. Dimilia the expert witness that testified at the 5/19/11 meeting stated that 8 is acceptable for the fence. Ms. McKenzie stated that they are proposing the fence remain 10’, for the extra protection to keep the balls from going on to other properties. Chairman Neuer asked if the fence is going to be 10’ around the tennis court only and Ms. McKenzie said yes, not around Mr. Carp’s whole property. Chairman Neuer stated that you previously testified that there is 300’ or more of wooded area on the Seton Hall property so how would anyone know if there was a tennis ball there. Ms. McKenzie stated that she is making an argument to say that the fence she is asking for serves the purpose of keeping the tennis balls in; it existed for 22 years and has not been a detriment. Ms. McKenzie went on to say that the impervious surface coverage is a different argument. She pointed to the easement on the plot plan and stated thal Mr. Carp gets no benefit from this driveway; it is for emergency service and for his neighbor only, Chairman Neuer stated that he thought that was the only access to Mr. Farley’s property. Ms. McKenzie said yes and for that reason they cannot rip it up. Chairman Neuer asked Ms. McKenzie to make her argument for the C1 hardship variance. She stated that it’s the only access to the adjoining lot. Ms. McKenzie also stated that 30% is allowed so people can improve their lots to a certain level. She said that if you take this driveway out then you are imposing a hardship on the property. Chairman Neuer stated that the driveway is not causing the variance; the tennis court is. He continued by saying if you reduce the size of the tennis court and rebuild it, then there would be no variance. Chairman Neucr also stated that no member of this Board wants to see Mr. Farley’s access to his house eliminated. Mr. Buechler stated that Mr. Carp bought his property knowing that the 30% restriction was there and he has difficulty accepting the reason she is offering. Ms. McKenzie stated that mistakes