August 17, 2017

MINUTES TOWNSHIP OF WEST ORANGE ZONING BOARD OF ADJUSTMENT REGULAR MEETING August 17, 2017 The West Orange Zoning Board of Adjustment held a regular meeting on August 17, 2017 commencing 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 the Star Ledger and posted on the Township Bulletin Board in accordance with the “Senator Byron M. Baer Open Public Meetings Act.” Chairman Neuer announced that a digital tape recording system is being utilized to record the proceedings of the meeting and instructed the general public on how the audio of the proceedings may be reviewed or obtained. Chairman Neuer asked everyone to stand for the Pledge of Allegiance. Alice Beirne, Esq., Board Attorney, read the Opening Statement. PRESENT: B. Buechler, D. Gabry, P. Neuer, B. Quentzel, M. Sussman, A. Weiss ABSENT: D. Nash (excused), F. Sanders (excused) I. Schwarzbaum (excused), W. Steinhart (excused) M. Straker (excused) ALSO PRESENT: Paul Grygiel, Acting Planning Director for the Township Alice Beirne, Esq., Board Attorney Rose DeSena, Board Secretary Harvey Grossman, Esq., Public Advocate

ANNOUNCEMENTS Future Meetings: September 14, 2017 (regular meeting) October 19, 2017 (regular meeting) November 16, 2017 (regular meeting) Chairman Neuer announced that application ZB-16-17/New Cingular Wireless PCS, LLC (AT&T) that was scheduled to be heard at this meeting has requested to be carried over to the Zoning Board meeting to be held on September 14, 2017; in so doing the applicant has extended all statutory time periods for a decision by the Board. Accordingly, this adjournment was granted and no further notice will be required. MINUTES July 20, 2017 (regular meeting) Chairman Neuer stated that the draft minutes from the July 20, 2017 were circulated to all of the Board Members. Chairman Neuer said that he submitted his comments for these minutes and asked if any Board Member had any additional comments; there were none. Ms. Gabry made a motion to approve the minutes of the July 20, 2017 meeting; Mr. Quentzel seconded the motion and all were in favor. Tt was noted for the record that Ms. Weiss was present at this meeting but did not vote on these minutes because she was not in attendance on July 20" SWEARING IN Paul Grygiel, acting Planning Director for the township was sworn under oath. RESOLUTIONS 1. ZB-17-06/Alexandre Approved on 7/20/17 Block: 139; Lot: 1; Zone: R-T 47 Franklin Avenue Seeking ‘c” variances for setbacks to enclose an existing porch

Chairman Neuer stated that this resolution was circulated to all of the Board Members and included comments from Mr. Buechler and himself. Chairman Neuer asked if any Board Member had any other comments; there were none. Chairman Neuer asked for a motion. Mr. Sussman made a motion to adopt the resolution as submitted and Ms. Gabry seconded the motion. The vote was as follows: Buechler Yes Schwarzbaum: - Gabry: Yes Steinhart: - D. Nash: - Straker: - Quentzel: Yes Sussman: Yes Sanders: - Weiss: - Chairman Neuer: Yes 2. ZB-16-12/McDonalds USA, LLC Approved on 7/20/17 Block: 168; Lot: 27.03; Zone: B-2 573 Northfield Avenue Preliminary and Final Site Plan approval with variances to demo an existing McDonalds with drive-thru and construct a new restaurant with drive-thru. Chairman Neuer stated that this resolution was circulated to all of the Board Members and included comments from Mr. Buechler and himself. Chairman Neuer asked if any Board Member had any other comments; there were none. Chairman Neuer asked for a motion. Ms. Gabry made a motion to adopt the resolution as submitted and Mr. Sussman seconded the motion. The vote was as follows: Buechler Yes Schwarzbaum: - Gabry: Yes Steinhart: - D. Nash: - Straker: - Quentzel: Yes Sussman: Yes Sanders: - Weiss: - Chairman Neuer: Yes

APPLICATIONS 1. ZB-16-11/Facey Carried from 6/15/17 Block: 85.03; Lot: 8; Zone: R-5 233 Mt. Pleasant Avenue Applicant re-purposed an existing garage to be used as a den EXHIBITS A-1— Basement Demolition & Construction floor, RCP, Power and Lighting Plan dated 10/5/15 A-2 - Letter from applicant’s attorney, Elaine Berkenwald, consisting of two pages, with tax card and assessment record for 233 Mt. Pleasant Avenue. A-3 — Photo Exhibit prepared by Lisa Phillips, P.P. O-1 — Aerial Photograph of Site/Survey of Property and Photographs — 4 pages. Elaine Berkenwald, attorney for the applicant, approached the podium. Jeffrey Kantowitz, attorney for Linda Stiles the objector, stated that Ms. Berkenwald gave him a document approximately fourteen (14) minutes ago. He said that he called the Board Secretary a few days ago and asked if any new materials had been submitted by the applicant and she replied no. Mr. Kantowitz stated that new materials are required to be submitted at least ten (10) days before the hearing. Ms. Berkenwald stated that she filed an OPRA request on August 9, 2017 and just received the documents in her office this morning. Chairman Neuer asked Mr. Kantowitz if he needs time to review the documents. Mr. Kantowitz stated that this application has been going on for a long time and that his client agreed to another continuance for the applicant at the last mecting two months ago. Chairman Neuer stated that his goal, as Chairman of this Board, is to keep the application moving. He said that if Mr. Kantowitz needs an additional fifteen (15) minutes to review the materials he will allow that. Ms. Beirne stated that Ms. Berkenwald presented her with a letter that was dated today, August 17, 2017; she told Ms. Berkenwald that the Board will address this letter at the meeting tonight. Chairman Neuer stated that they will go off the record for a few minutes to allow Mr. Kantowitz to review the documents that Ms. Berkenwald provided to him shortly before the meeting. Chairman Neuer stated that we are back on record.

Mr. Kantowitz asked Ms. Berkenwald what materials she will be presenting to the Board Members; she said that she filed an OPRA request for all permits, tax cards and plans from the 2015 renovation of the house. Mr. Kantowitz asked what is being proffered by way of documentation to this Board and to state the proffer behind that submission. Chairman Neuer stated that they will take another slight recess so that counsel can confer. Chairman also stated that Ms. Gabry was not present at the last hearing when Mr. Facey presented testimony without benefit of counsel. He said if the applicant would like Ms. Gabry to vote they are going to have to start over and anything that happened before this will not count. Ms. Berkenwald stated that she is prepared to present her case from the beginning. Chairman Neuer stated that they are going to take a five minute recess. Chairman Neuer stated that they are back on the record. Mr. Kantowitz said that he conferred with Ms. Berkenwald and he agreed to let her make whatever her proffer is and he will make his argument. Ms. Berkenwald stated that she has a Planner who will submit testimony at this meeting. She said that the applicants will also provide testimony of a neighbor. Ms. Berkenwald presented a copy of renovation plans consisting of four pages dated 10/5/15 that were marked as Exhibit A-1 for identification and a copy of a two (2) page letter with the tax card and assessment history for the property that was marked as Exhibit A-2 for identification. Ms. Berkenwald referred to Exhibit A-1 and stated that the Township of West Orange was aware that the prior owner was converting the garage into a den because they applied for permits to do the work. Ms. Berkenwald referred to Exhibit A-2 and stated that the tax cards show that West Orange taxes this property having four (4) bedrooms and no garage. Chairman Neuer asked Mr. Kantowitz if he has any comments regarding the documents that Ms. Berkenwald just presented for identification; he said yes. Mr. Kantowitz said that he objects to the documents that she presented because this is a “c variance application and he does not see the relevance of those documents. Chairman Neuer stated that those documents were entered for identification only. Ms. Berkenwald stated that her client did not create this condition and when they purchased this house it did not have a

airman Neuer stated that those documents were entered for identification only. Ms. Berkenwald stated that her client did not create this condition and when they purchased this house it did not have a garage.

Ms. Berkenwald called her first witness. Anna Facey, applicant, approached the podium and was sworn under oath. Ms. Facey stated that they purchased their home in May of 2016 from the contractor who renovated the home. Mr. Kantowitz approached and stated that he objects; he said that Ms. Facey’s testimony is a proffer on estoppel and asked that the applicant “cut to the chase”. Chairman Neuer stated that he is going to allow the applicant to proceed with her testimony because they have yet to make their legal argument. Ms. Facey stated that they purchased their home as a three (3) bedroom with a spare room; she said that she did not know that there was once a garage there. Ms. Facey stated that they park both of their vehicles in their driveway. She said that the width of the door where the garage used to be is too small to park a vehicle inside and that they would have to widen that doorway. Ms. Facey also stated that they do not have the finances to convert the bedroom back into a garage at this time. She said that even if the room was converted back to a garage they would still park both cars outside in the driveway. Ms. Gabry asked Ms. Facey if they were represented by counsel when they purchased the house; she said yes. Ms. Gabry asked Ms. Facey if they have a survey of the property; she said yes Vice Chairman Buechler asked Ms. Facey when they received the certificate of continued occupancy; she said the same day that they closed on the house. Vice Chairman Buechler asked Ms. Facey who gave them the certificate of continued occupancy; she said her attorney. Chairman Neuer asked Ms. Berkenwald if she had a copy of the certificate of continued occupancy; she said no. Mr. Kantowitz asked Ms. Facey if she requested any documents from the Township when she retained Ms. Berkenwald; she said yes. Mr. Kantowitz asked Ms. Facey if she requested a copy of the certificate of continued occupancy; she said no because they depended on their attorney because they did not know the proper procedure. Mr. Kantowitz asked Ms. Facey to elaborate on her testimony regarding not having the finances to turn the bedroom back into a garage; Ms. Facey stated that they have already spent thousands of dollars during the property dispute lawsuit with the objector and they do not have the money to do the construction.

Chairman Neuer asked Ms. Facey if they have gone to a contractor to get a price on the work; she said no. Mr. Kantowitz stated that Ms. Facey does not have the experience in construction and does not know what it would cost. Ms. Facey said that she is not a contractor but has an idea what it would cost because they have had construction work done before. Mr. Kantowitz asked Ms. Facey to detail how she pulls into her driveway and parks her vehicle; she complied. Ms. Facey also detailed how both of their vehicles maneuver in and out of their driveway and where they park on the site noting that she cannot back her vehicle out of the driveway due to a large common tree in front of her house that impairs visibility. Ms. Berkenwald asked Ms. Facey if they would have purchased the house if it had a garage; she said that she needed a four (4) bedroom house and that she was told that there was a spare bedroom in the house and they needed that room for their daughter. Ms. Facey said that is why they purchased that house. Ms. Berkenwald asked Ms. Facey if they want a garage; she said no. Ms. Berkenwald asked Ms. Facey if her driveway is on the side of Ms. Stiles house; she said no. Mr. Kantowitz asked Ms. Facey if she or her husband testified at the last meeting that the room that was formally a garage was used as a recreation room and not a bedroom; she said that she does not remember that but she knows that they submitted the application listing it as a den but were told it was a bedroom when they purchased the house. Chairman Neuer advised Mr. Kantowitz that the application has started over again. Mr. Kantowitz stated that the application was submitted as a use change for repurposing an existing garage; Ms. Facey said that she does not know what was in the application because her husband submitted it. Chairman Neuer advised Mr. Facey that Mr. Kantowitz was correct that the proposal in the application was for a use change for repurposing an existing garage and that is what they, the applicants, are bound to follow. Mr. Kantowitz asked Ms. Facey if she looked at any of the construction plans done by the prior owner before she purchased the property; she replied no, Mr. Kantowitz asked Ms. Facey if anyone on her behalf looked at any of the construction plans done by the prior owner of the house; she said she does not know. Mr. Kantowitz asked Ms. Facey if

d no, Mr. Kantowitz asked Ms. Facey if anyone on her behalf looked at any of the construction plans done by the prior owner of the house; she said she does not know. Mr. Kantowitz asked Ms. Facey if she had any knowledge of what was on the construction plans before she purchased the house; she said no. Chairman Neuer called for a recess at 9:14 pm.

Chairman Neuer resumed the meeting at 9:24 pm Ms. Berkenwald called her next witness Lisa Phillips approached the podium and was sworn under oath. Ms. Phillips detailed her educational and professional background as a professional planner licensed in the State of New Jersey. Chairman Neuer accepted Ms. Phillips as an expert in professional planning. Ms. Phillips presented four (4) pages of twelve (12) photos that was marked as Exhibit A-3 for identification. She stated that she took the photos of the site on Monday 8/15/17 and detailed them. Chairman Neuer stated for the record that Exhibit A-3 will be entered into evidence. Ms. Phillips referred to Exhibit A-1 and detailed the lower level floor plans of the house. Mr. Kantowitz asked the Chairman if Ms. Phillips is qualified to discuss plans. Mr. Kantowitz then stated that this is not planning testimony; it is engineering testimony. Chairman Neuer stated that Ms. Phillips can look at the plans and testify Ms. Phillips stated that the demolition plan shows the existing garage door being removed along with the countertops in the garage and the decking and framing. Ms. Phillips stated that the basic floor plan proposes a recreation room with a powder room and a shower. Ms. Phillips stated that the garage door opening was 8’ and detailed the dimensions of the interior of the garage. She said that the house was built in 1927 and with today’s standards, the applicants would not be able to park in that garage with an SUV; she said only a compact car could fit in there. Ms. Phillips stated that if this application was denied and the applicants had to rebuild the garage, they would never park in it because their vehicles are SUV’s which would not fit in there. Vice Chairman Buechler asked Ms. Phillips, under the standard, if someone has a garage are they required to park in it; she replied no. Ms. Phillips referred to the survey of the property and stated that the lot is undersized; she said that it is a non-conforming structure. Ms. Phillips referred to the township ordinance 25-12.1 and stated that the parking requirements for a four (4) bedroom house are 2.5 spaces.