Village Council Planning Board Meeting Minutes 20180801

The following minutes are a summary of the Planning Board meeting of August 1, 2017. Interested parties may request an audio recording of the meeting from the Board Secretary for a fee.

 

Call to Order & Statement of Compliance with the Open Public Meetings Act: Mr. Joel called the meeting to order at 7:45 p.m. Following members were present: MAYOR KNUDSEN, Joel Torielli, Richard Joel, Councilman Jeff Voigt, MS. ALTANO, Melanie McWilliams, and David Scheibner. Also present were Christopher Martin, Esq., Board Attorney; Village Planner Brigette Bogart; Village Engineer Chris Rutishauser; and Board Secretary Michael Cafarelli. Ms. Barto, Ms. Patire, and Mr. Van Goor were not present.

Public Comments on Topics not Pending Before the Board – None were reported

Correspondence received by the Board – Mr. Cafarelli reported the Village Engineer and Village Planner submitted a report on the Jennee application, a letter from Conklin Associates to the Village Fire Department on emergency access, an email from Gillian Foley regarding the Calbi Application, and an email from Rurik Halaby concerning the Master Plan Sub-Committee.

Calbi, Minor Subdivision, and Permit for not Abutting Street, 315 East Glen Avenue, Block 2106, Lot 20 – The application was carried to October 3, 2017.

Robert Jennee, Minor Subdivision and C Variance, 246 Mountain Road, Block 209, Lot 13.01 – The application was carried to August 1, 2017 without prejudice to the Board and without notice – Following is the transcript of the meeting, prepared by Laura A. Carucci, C.C.R., R.P.R.:

CHAIRMAN JOEL: The next item will be the Robert Jenee, Minor Subdivision and C Variance, 246 Mountain Road, Block 209, Lot 13.1. Public hearing continued from June 6, 2017 and carried to August 1, 2017 without further notice and without prejudice to the board.

1. MR. SCHEIBNER: Mr. Chair, I'm going to be recusing myself from this application.

(Whereupon, MR. SCHEIBNER recuses himself.  And other matters are discussed.)

CHAIRMAN JOEL: All right.  Thank you. 

Hi there, MR. RUTHERFORD.

1. MR. RUTHERFORD: Good evening, Mr. Chairman.

CHAIRMAN JOEL: Give your intro and (Inaudible). 

13. MR. RUTHERFORD: I will, thank you, Mr. Chairman. For the record, my name is David L. Rutherford, and I am here tonight on behalf of the applicant, RC Jennee Construction, Inc. And I'm accompanied to my left by Thomas Skrable, who is our professional engineer. And over on my (inaudible) ‑‑ in fact in the rear is Mr. Jennee. And I'm also accompanied by Richard Preiss who is our professional planner, so we're prepared for testimony from MR. SKRABLE and MR. PREISS this evening.  Just by way of a very brief opening statement, we come before the board seeking a minor subdivision of Lot 13.01 in Block 2509.  You'll see that this is an extraordinarily large lot.  We are in a 125 zone.  We're looking to create a total of two lots.  So it will look like the construction of single‑family homes.  The testimony will show that the area of Lot 13.01 is over three times the minimum lot are in the zone, 25,000 square feet is required and we have approximately 80,000 square feet.  And has the frontage along Mountain Avenue is only 200 feet where 125 feet is required.  You'll see that the property runs between Mountain Avenue and Marlborough Road, which we understand to be a dedicated and accepted, but unimproved public street.  The property is presently improved with a single‑family home and a detached garage and accessory building, both of which would be demolished if the application is approved.  There's also a swimming pool and a tennis court, again, both of which we'll be demolishing if the application is approved. 

The subdivision plan before you requires variances, all of which are related to the fact that the proposed two lots can only be 100‑feet wide. So the variances are for lot width, the average lot width, area of the properties within 200 feet of the front lot line and for those provisions of the ordinance that relate to the required minimum buildable and usable area.  You will see that even after a subdivision, the area of the lots still greatly exceed what is required in an R‑125 zone.  And with respect to the buildable and usable areas, you'll see that these lots are irregular size.  This is not a torted subdivision with awkwardly shaped lots, you know, that are designed and purported to be lot bulk requirements in terms of width or shape, so I think we're ‑‑ we are certainly compatible with the spirit of those provisions that the ordinance that talk about buildable, usable area.  Again, we don't have the width.  They're slightly deficient on width.  They do meet the depth. We're going to be basing our application upon hardship.  In that strict application of the ordinance, as it relates to lot width to this extraordinarily‑sized lot, will unreasonably limit the use and enjoyment of the property to a fuller extent and will constitute a substantial underutilization of the property.  And we will also base our presentation upon the fact that the subdivision represents a better zoning alternative for the property as the newly created lots will be very similar in width and area of most of the other lots in the area.  We consider to represent a logical and reasonable way of using the property consistent with the established neighborhood pattern. 

1. MR. PREISS is going to address those issues in some detail, but you'll see that the prevailing lot width along this portion of Mountain Avenue, although there are some that do exceed 100 feet, it's essentially 100 foot, so we're very consistent with what's already there. So with that having been said, I'd like to have ‑‑ if you wish ‑‑ actually have MR. SKRABLE sworn, and proceed with his testimony.
2. MR. MARTIN: Sure. Thomas Skrable, raise your right hand.

Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?

1. MR. SKRABLE: Yes, I do.

T H O M A S   S K R A B K E,

65 Ramapo Valley Road, Mahwah, New Jersey, having been duly sworn, testifies as follows:

1. MR. MARTIN: And for the record, state your name, your business address, and your professional licenses.
2. MR. SKRABLE: Thomas Skrable, S‑K‑R‑A‑B‑L‑E.

Business address is 65 Ramapo Valley Road in Mahwah, New Jersey. I'm a licensed professional engineer in the State of New York and New Jersey; New Jersey since, I believe, 1992. 

1. MR. MARTIN: And you've previously testified before planning boards in the State of New Jersey.
2. MR. SKRABLE: Yes, throughout the northern portion of New Jersey, southern New York State. I'm currently the land use board engineer for the Borough of Old Tappan. I have been for many years.  I have testified before this board, although there seems to be a lot of new faces, but I have testified before this board before. 
3. MR. MARTIN: And your bachelor's degree is in civil engineering?
4. MR. SKRABLE: Civil engineering, yes.
5. MR. MARTIN: Any (inaudible)?
6. MR. SKRABLE: No.
7. MR. MARTIN: I so qualify as a professional engineer. Thank you.
8. MR. SKRABLE: Thank you very much.
9. MR. RUTHERFORD: Thank you, MR. MARTIN. (Whereupon, Subdivision Plan dated 2/27/17, Last Revised 3/10/17 is received and marked as Exhibit A‑1 for identification.)

DIRECT EXAMINATION

BY MR. RUTHERFORD:

Q.MR. SKRABLE, you've prepared the subdivision plan before the board and, for the record, the plan is dated ‑‑ I'm missing the date, I'm sorry ‑‑ February 27th, 2017.  And there's one revision date, which is March 10th, 2017; is that correct?

1. A. Yes.
2. Q. And then that's based upon a survey of the property. And then you've shown a subdivision plan that shows the existing improvements.

And you have shown, for purposes of illustration, two proposed homes will be (inaudible); is that correct?

1. A. Yes.
2. Q. So for the record, and I know this is on the plan but so that we can make a record, can you describe Lot 13.01 as it presently exists by dimension and area?
3. A. Yes. It's basically an L‑shaped lot with 200 of frontage on Mountain Avenue. The L is at the back of the lot heading towards the south. The existing total lot area's 80,000 square feet, so it's significantly larger than the minimum required by the zone.
4. Q. And it has 200 feet frontage along Mountain Avenue and we're 325‑feet deep on the north and then the L‑shape is 100 by 150; is that correct?
5. A. Yes.
6. Q. And that's where the pool is located or tennis court?
7. A. Tennis court, yes.
8. Q. You heard my opening statement where I indicated that the existing improvements on the property, namely the existing dwelling, the detached garage, the accessory building, the tennis court, and the pool will all be demolished if this subdivision plan if it's approved; is that correct?
9. A. Yeah. And the plan's noted as such.
10. Q. And just generally ‑‑ before you get into the specifics, just generally describe the topography of the property.
11. A. North is more or less toward the top of the drawing, so Mountain Avenue's on the east side.

The property basically slopes from east to west, Goffle Brook is several hundred feet to the west of the property, probably another 30 or 40 feet longer than the lowest elevation on the property. Just to give you a feel for it, the elevation at the front is about 216, and the elevation in the back is 192.  So you're dropping about 24 feet on 325, so maybe a 7 or 8 percent slope approximately throughout the site, or average throughout the site. 

1. Q. And you have shown in the hash mark areas, towards the rear on the westerly side of the property, the areas that are "steep slopes," as that term is defined in the zoning ordinance of the Village of Ridgewood; is that correct?
2. A. Yeah. We have some minor areas that are just over 20 percent sloped and those are the areas that are hatched on the drawing, basically behind the pool on the northerly lot and on the street side of the tennis court on the southerly lot.
3. Q. And to the southerly side of the tennis court as well?
4. A. Yes.
5. Q. Do those areas of steep slopes impact in any way the anticipated development areas where the new homes and garages will be built?
6. A. No. We do not propose to touch any of those steep slope areas.
7. Q. Okay. And you've shown then, on subdivision ‑‑ on the plans, a proposed subdivision of 13.01 so as to create two lots. And what I'd like you to do is ‑‑ I think you've shown them as proposed Lot 13.01 and proposed Lot 13.02; is that correct?
8. A. Yes.
9. Q. So what I'd like you to do for the record ‑‑ I know it's on the zoning table, but for the record, just go through Lot 13.01 by way of its dimensions and the area proposed within the first 200 feet and the area over the entire lot.
10. A. The proposed Lot 13.01 is the northerly lot at the top of the drawing, and that's being proposed as a rectangular lot, 325 feet by 100. So the gross area is 32,500 square feet.

Within the first 200, we have 20,000 square feet or 200 by 100, so that is one of the variances that we're requesting; 25,000 is required. The lot with the setback is 100 feet.  That's the second variance that we're requesting. 

1. Q. What's required there?
2. A. 125.
3. Q. Okay. Thank you.
4. A. The lot depth, we are compliant we're 325‑feet deep. The buildable area rectangle and the usable area rectangle, we are deficient on those, again, because of the reduced width that we're requesting. So those are the third and fourth variances that we're requesting.

And all of the other bulk criteria, we will comply with.

1. Q. And with respect to the buildable and usable area, we are deficient as to width, but we are compliant as to depth of both of those; is that correct?
2. A. Yes, right.
3. Q. And you heard my opening statement, where I suggested one of the purposes of the buildable and usable areas is to ensure that lots are created in a uniform size. And that's certainly the case here. The northerly most lot is essentially rectangular and the other one is L‑shaped, but these are very regularly shaped lots; is that accurate to say?
4. A. Yeah. It's an exact rectangle. It's a very uniformed shaped lot.
5. Q. Okay. Then if you can go through the proposed Lot 13.02, and that's the lot to the south; the L‑shaped lot to the south.
6. A. Correct. So basically, it's the same situation as the northerly lot, 100 by 325, plus we're adding the L‑shaped area that was existing for the, you know, current lot.

So the net lot area of 13.02 is 47,500, because a little bit of the L‑shape is included in the first 200, our lot area within the first 200 is 22,500, which is slightly larger than 13.01, but still a variance request. It has the same lot width, the same buildable area rectangle and the same usable area rectangle, so we're requesting essentially the same variances on 13.02.

1. Q. And you concluded the note on the right‑hand side of your drawing somewhere in the middle, you've done a coverage by above‑grade structure, improved coverage calculation, and that shows the illustrative or proposed ‑‑ not necessarily proposed, but the homes that could be built on this property without variance relief; is that correct?
2. A. Yes. We've ‑‑ we've basically taken a plan that Mr. Jennee's used successfully in the past, I believe, within the village, and modified it slightly. So you're looking at 2,249‑square‑foot footprint for the dwelling with detached garage of 672 square feet, related driveway or walkway, equipment paths. And those numbers are shown just to show that we can provide a reasonably sized and appropriate dwelling to the neighborhood and still fall well within the zoning criteria. 
3. Q. And those coverages that we've shown for the garage and the dwelling and then the balance of the improvements for a total 4912 is far, far less than what's permitted in the zone given the size of these lots; is that correct?
4. A. Yes.
5. Q. Okay.
6. A. We can theoretically build the proposed improvements we're showing and leave the tennis courts simply under the required improvement coverage. And we're not proposing that, but I'm just saying that by ‑‑ by illustration, that there's significantly more impervious coverage left on the lots that we're not intending to use.
7. Q. From an engineering perspective, do you anticipate any difficulties in developing these lots with respect to utility service or anything else? We've talked about slopes earlier, slopes aren't going to be an issue for where the houses would be placed. Any other issues that you see from an engineering perspective that might make it difficult or impractical to develop these lots?
8. A. No, all utilities are available and on (inaudible). And when I gave you that average slope before, that actually includes the steeper area in the rear. So the front of the lot is the flat part, where we're proposing to build the homes, so there's no engineering issues as far as developing these lots as shown.
9. Q. And you have had an opportunity to review MR. RUTISHAUSER's report dated August 1st of 2017?
10. A. Yes.
11. Q. You reviewed that earlier?

CHAIRMAN JOEL: MR. RUTHERFORD, two more minutes the board will (inaudible)?  

1. MR. RUTHERFORD: Sure. Thank you.
2. MR. MARTIN: Shall I mark the drawing?
3. MR. RUTHERFORD: Yeah. I put a label ‑‑ I put a label on the drawing, A‑1.
4. MR. MARTIN: Great. Thank you.
5. MR. RUTHERFORD: Okay.

(Whereupon, Report of Christopher   Rutishauser dated August 1, 2017, is received and marked as Exhibit B‑1 for identification.)  

1. MR. RUTHERFORD: Okay. So I've marked MR. RUTISHAUSER's report as ‑‑ as B‑1 and my initials and the date.

BY MR. RUTHERFORD: 

1. Q. So we went through that earlier. We don't have to go through each items, but is there anything in there that you feel would be a problem or that the applicant could not comply with, should this application be approved when it comes time to develop these lots?
2. A. No. We've discussed it with the applicant. He's agreed to all of the items in the report, including the application of the tree ordinance should that come to pass.
3. Q. Okay. One of the issues that was a question as to whether or not the proposed subdivision would require a major soil removal permit, I know you haven't done detailed soil movement calculations, but do you see a soil ‑‑ a major soil moving permit working here?
4. A. No.
5. Q. Okay. And anything else in here that you ‑‑ the rest of this stuff that either can be ‑‑ or certainly can be and will be complied with should the application being approved.
6. A. No. With grading, we understand that individual plot plans for these lots will be required and reviewed by your engineering department, that would include the drainage details, grading details soil erosion, sediment control. All that's understood and we agree.
7. Q. And similarly, we've ‑‑ you've had an opportunity to review the report of Brigette Bogart the board's planner that's dated June 6th, 2017. Again, in terms of issues relating to landscaping and snow fence, silt fence and things of that nature, we have no issue with complying with any of those issues as well; is that correct?
8. A. Correct.
9. MR. MARTIN: MR. RUTHERFORD, could we mark that as B‑2?
10. MR. RUTHERFORD: Yes, MR. MARTIN, thank you. B‑2. I did put my initials and the date.  Thank you. 

(Whereupon, Report of Bridgette Bogart dated June 6, 2017, is received and marked as Exhibit B‑2 for identification.)

BY MR. RUTHERFORD: 

1. Q. Anything else, MR. SKRABLE, that you want to add?
2. A. No.
3. Q. The only think I would notice you have included an area of map in the upper‑right‑hand corner which does show the location of Marlborough Road and it also shows Goffle Brook that you referred to earlier.
4. A. Yes. And we actually did walk the site, just to make sure there were no wetlands issues and your planner, your engineer can certainly speak for themselves, but I think we're all in agreement that there's no wetlands issues anywhere near the subject property.
5. MR. RUTHERFORD: I think that's all I have of MR. SKRABLE, Mr. Chairman. Thank you.

CHAIRMAN JOEL: Jeff, we'll start with you. 

Do you have any questions?

COUNCILMAN VOIGT: Yeah. So, the adjoining lot ‑‑ lots to the north of you, what's the width of those lots?  Do you have ‑‑ do you have figures on those widths?  I know you've mentioned that it's probably similar in width to some of the other lots.  Tell me about that. 

THE WITNESS: Yeah. MR. PREISS will address this in greater detail.  But the four lots to the north are all 100‑feet wide.

COUNCILMAN VOIGT: They are?

1. MR. RUTHERFORD: Yes. It's hard to read off the tax map. He has an exhibit that's going to show a very detailed analysis of all the lots in the area ‑‑

COUNCILMAN VOIGT: Okay.  Great.

1. MR. RUTHERFORD: ‑‑ that will...

COUNCILMAN VOIGT: Okay.  And can you get into some more specifics, I would guess, on the (c)(2) variance ‑‑

THE WITNESS: MR. PREISS will address that, yes. 

COUNCILMAN VOIGT: Okay. 

And then the size of the homes in this area, I know you're proposing 200‑some‑odd (sic) square feet for these two homes; is that right?

THE WITNESS: I'm sorry, what was that number.

COUNCILMAN VOIGT: It looks like 22 ‑‑

THE WITNESS: Yeah.  That's a footprint, so the ‑‑ the actual floor area will be about 4,000, something like that.

COUNCILMAN VOIGT: Oh, okay.  And is that going to be consistent with the homes in that area as well on the size of these homes? 

THE WITNESS: I believe so.  I know ‑‑ I know our planner has done a little bit more analysis as far as that goes, but just based on my looking at all of the adjacent properties, I would say they're consistent, yes. 

COUNCILMAN VOIGT: Okay.  And the setbacks of the homes as well is probably pretty consistent from what you're doing from the road, itself? 

THE WITNESS: The front yard? 

COUNCILMAN VOIGT: Yeah, the front yard setback.  That'll be consistent as well? 

THE WITNESS: I don't remember them being inconsistent.  That's all I can say.  I'm sorry. 

COUNCILMAN VOIGT: Yeah, I know if you can just find that out and see if ‑‑ see if they're built to be consistent (inaudible). 

THE WITNESS: I think there's an aerial that you'll see later so ‑‑

COUNCILMAN VOIGT: Okay. 

THE WITNESS: ‑‑ that'll help.

COUNCILMAN VOIGT: And then referring to Chris Rutishauser's review, there was a question on historical evidence suggests groundwater may be an issue with regards to sighting.  I'm wondering if, Chris, can you help me understand what that ‑‑ what that means? 

1. MR. RUTISHAUSER: We don't have any information as to whether there's rock immediately underneath the surface of the soil. On a sloped property like that, you can have seeps on lower elevations and it can be a current issue. There may be something that occurs that's generally something readily addressed (inaudible). 
2. MR. RUTHERFORD: Okay.

COUNCILMAN VOIGT: Yeah.  That's it. Thank you.

CHAIRMAN JOEL: Thank you. 

1. MR. MARTIN: MAYOR KNUDSEN?

MAYOR KNUDSEN: No questions (inaudible). 

1. MR. MARTIN: Melanie?
2. MS. McWILLIAMS: I think for the moment, I'm fine. I know you mentioned there'll be no movement of ‑‑ there's nothing planned for the rear of the property. It's kind of (inaudible) currently, and it does say in the report that there are wetlands in the rear of the property.  So I would just be concerned that there ‑‑ that nothing happen at a later point or make sure they have to seek a variance to do any other work. 

THE WITNESS: We don't plan any.  We'll just be removing the structures that are there, topsoil and seeding.  Any wetlands are literally along the ‑‑

1. MS. McWILLIAMS: I can see that ‑‑

THE WITNESS:  ‑‑ bank of the stream.

1. MS. McWILLIAMS: Yeah.

THE WITNESS:  ‑‑ so it's a couple hundred feet away.

1. MS. McWILLIAMS: Right. I would be more concerned with a homeowner, that shows a ‑‑ a new homeowner that wanted to, you know, make improvements to the property. But I guess that would come up at a later point.  So I think for the moment I'm okay.
2. MR. MARTIN: Thank you.

CHAIRMAN JOEL: Isabella?

1. MS. ALTANO: Yeah. How old are the structures you are going to be demoing?

THE WITNESS: How old are they?

1. MS. ALTANO: Yeah. Roughly?

THE WITNESS: I'm not sure. 

1. MS. ALTANO: Only ‑‑ I'm only concerned about if you guys checked to see if there's any kind of abatement that needs to be done and that that should be consummated when you do the demolition.

THE WITNESS: I'm sorry? 

1. MS. ALTANO: Is it ‑‑ when you go ‑‑ while you go to demolition of the existing building, do you know if there's any hazardous material that needs to be encapsulated while you're doing the demolition?

THE WITNESS: Not yet. 

1. MS. ALTANO: Do you foresee any abatement?

THE WITNESS: I'm not sure if there are to be honest, but I know that that's a standard requirement.  If there's any asbestos pipe insulation or any asbestos shingles or anything like that, that will be handled during the demolition permit process and the applicant will be required to handle those lawfully.

1. MS. ALTANO: Because that's I mean that's my concern. That's (inaudible).
2. MR. MARTIN: Thank you. Joel?

VICE CHAIRMAN TORIELLI: One question regarding the tennis court, it looks like it's surrounded by a brick retaining wall with some steps up to it? 

THE WITNESS: Yes. 

VICE CHAIRMAN TORIELLI: Are you intending to keep that retaining wall or how are you going to ‑‑ you said you're just going to remove the tennis court and put topsoil there.  Are you keeping the retaining wall or are you going to level out that area? 

THE WITNESS: We're intending to remove the wall as well and level it out.  It's not in the greatest shape. 

VICE CHAIRMAN TORIELLI: So won't that affect the steep slope areas that are adjacent to it? 

THE WITNESS: We'll actually be lessening the slope by filling in that ‑‑ the vert ‑‑ wherever the vertical wall is, that will now become lesser slopes so ‑‑

VICE CHAIRMAN TORIELLI: So you're actually going to reduce the amount of steep slope area as part of this demolition? 

THE WITNESS: Yes. 

VICE CHAIRMAN TORIELLI: All right.

Thank you.

CHAIRMAN JOEL: Okay.  I don't have any questions. 

Chris, do you have any questions?

1. MR. RUTISHAUSER: Not at this time. I think the applicant's engineer already pretty much agree with what I presented in my memo.
2. MR. MARTIN: MR. RUTISHAUSER, just in case ‑‑ do you swear to tell the truth, the whole truth, and nothing but the truth so help you God?
3. MR. RUTISHAUSER: Yes, I do.

C H R I S T O P H E R J.   R U T H I S H A U S E R, having been duly sworn, testifies as follows:

1. MR. MARTIN: And, MR. RUTHERFORD, do you stipulate to MR. RUTISHAUSER being the professional engineer for the village?
2. MR. RUTHERFORD: Absolutely, yes, sir.
3. MR. RUTISHAUSER: The review was pretty straightforward, there's nothing really complex about this subdivision. The planner issue that Bridgette looked at maybe we'll cover that in the engineering.

CHAIRMAN JOEL: All right.  Brigette, did you have any questions for MR. SKRABLE? 

1. MR. BOGART: I just have two questions.
2. MR. MARTIN: (Inaudible). Do you swear to tell the truth, the whole truth, and nothing but the truth so help you God?
3. MR. BOGART: I go.

B R I D G E T T E   B O G A R T, having been duly sworn, testifies as follows:

1. MR. MARTIN: And you stipulate to MS. BOGART as a professional planner?
2. MR. RUTHERFORD: Yes, I do, MR. MARTIN.
3. MR. MARTIN: Okay.
4. MR. BOGART: There's a note on the plans that say "steep slope areas greater than 20 percent will not be disturbed." It only points to one of those areas. You just testified that you'll be removing that wall and removing those other (inaudible) out.  Does that note apply to all the other areas or ‑‑

THE WITNESS: Yeah.  That was intended to apply to all. 

1. MR. BOGART: Okay. Except for where you'll be removing the brick wall?

THE WITNESS: Yeah.  I mean, honestly, I assume that, you know, if we start at the top of the wall and fill it in, we'll not be disturbing the steep slope technically, but I guess there will be some minor intrusion into it in order to remove it.  But the intent is not to touch ‑‑

1. MR. BOGART: Okay.

THE WITNESS: ‑‑ other than to remove it. 

1. MR. BOGART: I think from a technical perspective, you'll probably need a variance from the steep slope ordinance because there's going to be disturbance in the steep slope areas. And that wasn't noted in ‑‑ on my report. But I didn't realize that that was (inaudible). 

THE WITNESS: I mean, if the board felt strongly about that, we can leave the wall.  I just don't see any need for the wall if we're trying to create just an open backyard area.  But we can leave it up to the board and wherever you would like us to proceed. 

1. MR. BOGART: My second question actually is related because once you start to grade that out, it may impact some of the trees in that area. And I know you agreed to my comment with regard to tree preservation fencing but I think this is an site that warrants the identification of all ‑‑ I mean your trees that are going to be preserved and show the fencing on the plans just because there are a lot of big trees on the site that have a caliper of maybe 38, 40, you know, inches in caliper so I think that what needs to happen is you need to determine the grading of that area and what trees are going to be preserved.
2. MR. RUTHERFORD: To show them on the plan and then show tree preservation measures as well?
3. MS. BOGART: Correct.
4. MR. RUTHERFORD: And over what caliper tree do you think is appropriate?
5. MR. BOGART: It will be in accordance with the new ordinance.
6. MR. RUTHERFORD: With the new ordinance, okay.
7. MS. BOGART: Correct.

Which Andrew just told me is 8 inches.

Thank you. That's it.

CHAIRMAN JOEL: Chris, do you have any questions? 

1. MR. MARTIN: Not at this time.

CHAIRMAN JOEL: Okay.

Does anyone from the public have any questions for the engineer, MR. SKRABLE? 

Sure. Just come on up and state your name and your address. 

1. MR. WALKER: I'm actually Martin Walker.
2. MR. CAFARELLI: I'm sorry?
3. MR. WALKER: I live at 114 Cottage Place.
4. MR. CAFARELLI: I'm sorry. What was your name again? 
5. MR. WALKER: Martin Walker. I'm not sure which engineer I can direct the question to.
6. MR. MARTIN: MR. SKRABLE, he's THE WITNESS.
7. MR. WALKER: Okay.

My question goes to your argument that the Ridgewood Master Plan ‑‑

1. MR. MARTIN: Ridgewood what? I'm sorry?
2. MR. WALKER: Master Plan, the Ridgewood Master Plan.
3. MR. MARTIN: Generally, not (inaudible) ‑‑
4. MR. WALKER: I ‑‑ because I noticed in this request, there's a request for a variance and I don't know exactly what that variance is, but I'm wondering where in the master plan there's a ‑‑ it says what kind of variances will be appropriate from that particular master plan.

THE WITNESS: I don't mean to cut you off, but I'm probably not the best person to answer that question.  I think that question should really be to our planner who will be the next person to testify. 

1. MR. WALKER: Oh, okay.

CHAIRMAN JOEL: Okay.  Do you have anything of an engineering nature or anything that he testified to that you want to ask him questions about? 

1. MR. CAFARELLI: MR. WALKER, can you give me your address again, please.
2. MR. WALKER: It's 114 Cottage Place.
3. MR. CAFARELLI: Thank you.
4. MR. WALKER: Okay. Thank you.

CHAIRMAN JOEL: Call your next witness. 

1. MR. RUTHERFORD: Richard Preiss, Mr. Chairman.

THE WITNESS: Thank you.

CHAIRMAN JOEL: Thank you. 

1. MR. MARTIN: MR. PREISS, will you raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth so help you God?
2. MR. PREISS: I do.

R I C H A R D   P R E I S S, 33‑41 Newark Street, Hoboken, New Jersey, having been duly sworn, testifies as follows:

1. MR. MARTIN: And it's Richard P‑R‑I‑C‑E, correct?
2. MR. PREISS: P‑R‑E‑I‑S‑S.
3. MR. MARTIN: Okay. I did not see a report, so I apologize, P‑R‑E‑I‑S‑S.
4. MR. PREISS: S‑S?
5. MR. MARTIN: You're a professional planner?
6. MR. PREISS: I am.
7. MR. MARTIN: And what is your business address?
8. MR. PREISS: I'm with the firm of Phillips, Preiss, Grygiel LLC. Our address is 33‑41 Newark Street, Hoboken, New Jersey 07030.
9. MR. MARTIN: And you're a professional planner licensed in New Jersey?
10. MR. PREISS: I am.
11. MR. MARTIN: Any other states?
12. MR. PREISS: No. I believe there's only two states in the United States that have licensed planners. We have one commission in Nevada and the other one's Michigan. 
13. MR. MARTIN: And you received your master's in planning?
14. MR. PREISS: I have both a bachelor of science in town and regional planning and a master's degree in urban planning.
15. MR. MARTIN: And where'd you get your master's degree?
16. MR. PREISS: University of Oregon in 1980.
17. MR. MARTIN: And you've been accepted as a qualified professional planner before planning boards in Bergen County and other (inaudible)?
18. MR. PREISS: Yes.
19. MR. MARTIN: You've been ‑‑ testified in superior court?
20. MR. PREISS: Yes, numerous times.
21. MR. MARTIN: And regarding ‑‑ what's that matter on planning?
22. MR. PREISS: All as a ‑‑ as a planning expert, a range of issues, zoning and master plans, redevelopment, condemnation, and so forth. I'm also a municipal planner for a number of communities in New Jersey, including a number in Bergen County, Hillsdale, Woodcliff Lake, Harrington Park.
23. MR. MARTIN: And you are so qualified as a professional planner tonight. Thank you.
24. MR. RUTHERFORD?
25. MR. RUTHERFORD: Thank you, MR. MARTIN. DIRECT EXAMINATION

BY MR. RUTHERFORD: 

1. Q. MR. PREISS, we're going to kind of do a little question and answer here, but I'd like you to first annunciate for the board the purpose of your appearance this evening and the scope of your assignment as given to you by the applicant.
2. A. Yes. The purpose of my investigation and testimony this evening is to evaluate the appropriateness of the (c) variances for minimum lot width, minimum buildable area, rectangle, and the buildable and usable area rectangle, and minimum lot size within 200 feet of the lot line, in connection with the proposed subdivision that is before the board. I spoke with of my review, I reviewed the existing survey, the proposed plot or site plan, the application. I physically inspected the site, the surrounding uses in the neighborhood.  I reviewed the Ridgewood Master Plan as it pertained to this area of the village.  I reviewed the Ridgewood Zoning Ordinances as it pertains to the application. And I consulted with the client as well as MR. SKRABLE and MR. RUTHERFORD in regards to the application. 
3. Q. So you're familiar with the property, and you visited it. You heard MR. SKRABLE's testimony earlier this evening with respect to the physical characteristics of the property. But in terms of your background information, maybe you could annunciate those characteristics of the property that you think are particularly relevant to this application.
4. A. Yes. I think the key is that the subject property is a significantly oversized lot being 80,000 square foot and being located in the R‑125 zone. As MR. SKRABLE indicated, this is at 246 Mountain Avenue, this area is predominated by single‑family homes. It also backs up on the Marlborough Road which is an unimproved or paper street beyond which is Gypsy Pond Park. 

And as MR. SKRABLE indicated, the site is currently developed with a 2.5‑story single‑family home with a detached garage, tennis court, and pool. The ‑‑ I don't know the exact age of the home, but it appears to be ‑‑ have been developed at about the same time other homes in the area have been developed.  It's probably, in my estimation, between 80 and 100 years old.  And it's not in the best condition currently.  So that is the ‑‑ the description of this ‑‑ this site as it currently exists. 

1. Q. And then you could describe for the board, please, the subdivision that the applicant proposes.
2. A. Yes. It's a minor subdivision to divide the property into two lots. Lot 13.01 would be 32,500 square feet in size, and proposed Lot 13.02 would be 47,500 square foot in size, which both are substantially in excess of the minimum lot size of 25,000 square feet. As MR. SKRABLE indicated the ‑‑ in all of the existing structures on the home would be demolished to make way for the new homes.  Each of these homes would have a detached garage to the rear, certified driveways which on the illustrative site plan or plot plan would be located on the interior side of the lot.  In other words, furthest away from the neighboring properties to the north and the south.  The proposed plot plan, which is shown as I indicated with certain illustrative purposes shows that both homes and the detached garages would require ‑‑ would comply with all of the requirements of the front, rear, and side yard setback, for lot coverage and building coverage and compliance with (inaudible) the Ridgewood zoning code.
3. Q. So what we've tried to show on the plan is consistent with MR. SKRABLE' s testimony and his notes that these are examples of what could be built. And to demonstrate to the board that the lot width variances that we're seeking will not adversely impact the applicant or another developer's ability to develop these lots with single‑family homes; is that correct?

1. That is correct.

In fact, the ‑‑ these particular lot sizes and the homes that are proposed are substantially consistent, there will be more testimony later on, substantially consistent with the homes that are located in the ‑‑ in the surrounding neighborhood in terms of their ‑‑ their size, their location, their setback and the fact that there are detached garages on ‑‑ on those properties.

So there's an indication that if this board granted the variances and the proposed subdivision, that the resulting two lots and the homes would be substantially consistent with the neighborhood.

1. Q. Okay. Now, we have identified four variances that are sought, the board is familiar with them, if you could just run down them very quickly?
2. A. Yes. Just a (inaudible) note that the both lots, not only meet the minimum lot area requirements, but are substantially in excess of that. And meets other dimensional requirements of the R‑125 zone, such as the minimum lot width within 200 feet of the lot line (inaudible) court. And the minimum lot depth, 160 feet is required 325 is ‑‑ is provided. 

For (c) variances where both lots would be deficient is with respect to minimum lot width at the front setback line. The requirement is 125 feet.  Both are ‑‑ 100 foot is proposed.  Minimum building area rectangle, the requirement is 80 foot by 70 foot, both lots would be 60 foot by 70 foot. The minimum usable area rectangle, the requirement is 100 by 160 foot, both would be ‑‑ would provide 80 by 160 foot.  And minimum lot area within 200 feet of the front lot line, the requirement is 25,000 square feet.  Lot 13.01 would be 20,000 square foot and Lot 13.02 would be 22,500 square foot. 

1. Q. Before you go on, just for a moment, earlier I had referred to and suggested to the board what the purpose ‑‑ or the planning purpose behind the buildable area and usable area provisions of the ordinance might be. So from a planning perspective, I'd like you to comment on that in terms of what's the purpose of those types of provisions. And, in your opinion, if the variances we seek for the width of those areas would be contrary to that purpose of defeat that purpose.
2. A. Yes. I think ‑‑ I think the main purpose of all of the requirements for which we're seeking the variance is to ensure that you have a lot of the size and the shape that permits a reasonably‑sized house in keeping with the spirit and intention of both the master plan and zoning ordinance to be provided in the neighborhood. And it's ‑‑ it's ‑‑ you know, the idea is to prevent a kind of gerrymandering of the lot or a very unusual shape or ‑‑ or width, so that a developer can squeeze the maximum out of an irregularly‑shaped piece of property.

In this situation, and as I will indicate both by way of exhibits and testimony, the lot shape, the lot size, their width, and all of the other dimensions that are proposed are substantially consistent with what is both envisioned in the master plan and zoning ordinance and is consistent with what is in the neighborhood. So in this particular situation, the variance is not being sought to create an unusually‑shaped lot in order to maximize the ‑‑ the development of the property.

1. Q. And we're talking about (c) variances, the Municipal Land Use Law provides two legal basis for the granting of a (c) variance. I know the board's familiar with them, but just for the record if you could just outline those (inaudible).
2. A. Right. The first is known as the (c)(1) or hardship variance and the other ‑‑ the second is the (c)(2) or the flexible variance or also known as the variance where the benefits of granting the variance would outweigh the detriments and the purposes of zoning would be advanced.

So those are the two affirmative criteria. It must be either one of those two criteria or both must satisfied in order for the board to grant the variances. 

1. Q. In your opinion, are both of those criteria satisfied in this case?
2. A. Yes. I think in particular in this case, the hardship variance is paramount.

But I do believe, at the end of the day, there will be benefits which would outweigh the detriments, so I believe the (c)(2) requirement ‑‑ (c)(2) criteria would also apply.

1. Q. Okay. So with respect to the (c)(1), we'll focus on the (c)(1) variance for a moment, which is essentially hardship based upon something exceptional or peculiar or unusual about the property, correct?
2. A. Yes.
3. Q. What are the ‑‑ based upon the facts that we've developed thus far ‑‑
4. A. Yes.

Q.‑‑ do you think those facts support a (c)(1) application?

312. A. Yes. In this case, the variance for not meeting the minimum required lot width, the minimum buildable rectangle, usable rectangle and minimum lot area within 200 feet of the front lot line or what I'd refer to the classic (c)(1) hardship under the Municipal Land Use Law. And I'm quoting from that N.J.S.A 40:55D‑70, (c)(1)(a) where the ‑‑ a bulk variance may be granted ‑‑ I'm quoting from that particular section: "By reason of exceptional narrowness, shallowness, or shape of a specific piece of property the strict application of any regulation would result in peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the developer of the property." In this case, we have a single lot of 80,000 square foot which is more than three times the required minimum lot area of 25,000 square foot in the zone, where the applicant wishes to subdivide the property into two parcels, one in which is 32,500 and the other which is 47,500 square foot, both would substantially exceed this requirement.  In both cases, all four of the required lawful requirements would be met if each lot were 125‑feet wide instead of 100‑feet wide. Not only would each of the lots meet the minimum lot width at the setback, but also the minimum buildable rectangle, the minimum usable rectangle and the minimum lot size within 200 feet of the front lot line would also be met if the lots were 125‑feet wide.  So the deficiency related to the minimum lot width and other dimensional deficiencies is a result of the physical layout of the existing lot, which is 200‑feet wide, the first 175 feet of depth, and then widest to 300 feet for the remaining 150 feet of depth.  Because of this layout, only one lot is permissible that fully meets with the dimensional requirements of the zone, whereas with respect to lot size, the existing lot is over 300 percent, actually 312.5 percent, over the minimum lot area.  So per the lot area requirements, with the correct dimensions, three lots and three homes would be permissible where it's only one fully conforming lot is permitted.
313. Q. So it's ‑‑ in your estimation, it's the shape of the property, the fact that it's only 200 feet in width, where if you were to get two conforming lots, it would have to be 250, is what brings the applicant before the board. Obviously, we're here for a subdivision.
314. A. Right.
315. Q. But your ‑‑ your opinion is based upon the factors relating to the lot itself?
316. A. Correct.
317. Q. Correct?
318. A. That ‑‑ that is correct. It's ‑‑ it's relating to the particular physical conditions of the property, itself. So per the proposed subdivision, proposed Lot 13.01, we exceed the minimum lot requirement by 30 percent, and proposed Lot 13.02, we exceed the minimum lot area requirements by 91 ‑‑ 90 percent. If you look at the case law, it indicates that a hardship case or a (c)(1) case is ‑‑ is applicable to the proposed subdivision.  I'm sure the board's attorney and some members of board may be familiar with Cox and Koenig's classic, what we refer to the Bible of land use which is known as New Jersey Zoning and Land Use Administration.  I looked at the 2016 version where the following is indicated.  It says ‑‑
319. MR. MARTIN: Jonathan Drill is actually one of the commentators now and the ‑‑

THE WITNESS: Jonathan Drill and Lisa John‑Basta are the two ‑‑

1. MR. MARTIN: Yes, Jonathan Drill has taken the book, I believe.

THE WITNESS: That's correct.

1. MR. RUTHERFORD: Yes, the 17th edition still references Mr. Cox and Mr. Koenig for sure in big letters, but they're now acknowledging actually Mr. Drill, Mr. Jonathan Drill's contribution to it.
2. MR. MARTIN: I'm (inaudible) purchased so I don't get lost on the (inaudible) testified.

You're saying exceptional narrowness is terms of the (c)(1), is that one of the aspects you're defining?

THE WITNESS: Yes, exceptional narrowness and shape of the property, correct. Just going back to page 622 of the 2016 version of the book that I just quoted, it indicates the following:  "The term undue hardship has been variously interpreted by the Lang v. Zoning Board of Adjustment, 160 NJ 41:53‑55‑56 (1999).  The Court made it clear that it                                       refers solely to particular physical conditions of the property as those described in subsection (c)(1) of the statue." And as MR. RUTHERFORD indicated, the particular physical condition of the subject property that creates the hardship is its unusual shape.  The fact that it's narrow and deep in the front being 200‑feet wide, by 325‑feet deep with a projection of 50 by 150 proportion to the rear of Lot 14 to its south.  So when one subdivides the property into two lots which considerably exceed the minimum lot area, it results in two lots, both of which are 100‑feet wide versus 125‑feet wide at the front yard setback as required by zoning.  Because of this deficiency, with regards to the minimum lot width, the two proposed lots also require variances for minimum buildable and usable rectangles and minimum lot areas within 200 foot of the front line.  The hardship ‑‑ the (c)(1) hardship that I've been referring to in this case is also described in Cox in the case of Pereira vs. Randolph Township Planning Board, where it indicates that the hardship is the substantial underutilization of the property resulting from the unusual shape of the property, relative to the zoning requirements.  In other words, in this case, the strict application of the zoning requirements results in less than one‑third of the permitted density or intensity of use, permitting only one lot and one house, whereas three lots or three houses would result if the property were wider and shallower.  In other words, if the property were 375‑feet wide by 200‑feet deep, 80,000 square feet, or two lots if the houses were 250‑feet wide by 324 ‑‑ 320‑feet deep.  Also, I want to point out that in the discussion in Cox under the ‑‑ under the (c)(1) hardship standards, the applicant need not show that the property has been zoned into inutility.  In other words, it has been deprived of all reasonable use of the property.  It only needs show that the unique characteristics inhibit the extent to which the property can be used, which is clearly the case here.  So in summary, the denial of the variance for lot width and the three other (c) variances, in my opinion, would result in a substantial undue hardship, a substantial underutilization of the property due to its particular physical condition of the property as described in (c)(1)(a) of the statute.  So that is the ‑‑ the (c)(1) criteria.  With respect to the (c)(2) criteria, in terms of the better zoning alternative ‑‑

1. MR. MARTIN: Let me ‑‑ MR. PREISS, let me just stop you there.

THE WITNESS: Yes, sir.

1. MR. MARTIN: MR. RUTHERFORD, just as to the (c)(1), just the Carriage case, 256 NJ Super. 656, on self‑created hardship under (c)(1). In fact, that court ‑‑ the appellate court remanded it back to talk about (c)(2). 

So I would just suggest to the board, continue to pay attention to the (c)(2) aspect of this because I ‑‑ I look at this as more of a (c)(2) (inaudible). 

1. MR. RUTHERFORD: Okay. That's fine. Yeah, we'll ‑‑ we'll address that. 

BY MR. RUTHERFORD: 

1. Q. MR. PREISS, the (c)(2)?
2. A. In terms of the (c) (2), the ‑‑ the applicant has demonstrated that the variance grant would result in a better zoning alternative. I don't want to get too far in to myself. I do have an exhibit which addresses, to a large extent, the ‑‑ the negative criteria. But, essentially, if you look at the neighborhood, predominantly lots which were ‑‑ are within 200 feet of the subject property, the 200 feet being the area where notice is required under the Municipal Land Use Law for variances in site plan.  And also within 500 feet of the property, which plans often utilize as the definition of the neighborhood, the predominant size of the lots in ‑‑ in those two particular areas within 200 feet and 500 foot, is 100‑foot wide.  And so the ‑‑ the houses that would be built on these lots, their location, their width, their setback, and their dimensions would be substantially consistent with the neighborhood whereas the subject property under the existing condition is oversized and not in keeping with the predominant lot size and lot dimensions within ‑‑ within the neighborhood. 
3. Q. So you ‑‑ and your exhibit is going to address that in greater detail, plus also the negative criteria, but this can be done and improved without substantial detriment ‑‑
4. A. That's correct.

In fact, I think just so that I'll ‑‑ I'll hand out my exhibit and I'll go through that now.

1. MR. MARTIN: We're marking this A‑2?
2. MR. RUTHERFORD: Yeah. I have it labeled, MR. MARTIN.

(Whereupon, "Analysis of properties in the surrounding area which are nonconforming   with regard to requirements of the minimum lot      width, buildable area rectangle, usable area rectangle, lot width within 200 feet of front                  lot line, RC Jennee Construction Company, subdivision application," Prepared by Phillips, Preiss, Grygiel, LLC, dated June 2017, was received and marked as Exhibit A‑2      for identification.)

1. MR. RUTHERFORD: I'll tried to keep (inaudible) ‑‑

COUNCILMAN VOIGT: Thank you.

1. MR. RUTHERFORD: ‑‑ exhibits here.

THE WITNESS: Let me first identify the exhibit which was prepared both by me and under my direction by a firm. The cover page identifies it under the following title: "Analysis of properties in the surrounding area which are nonconforming with regard to requirements of the minimum lot width, the buildable area rectangle, usable area rectangle, lot width within 200 feet of front lot line.  RC Jennee Construction Company, subdivision application."  It was prepared by Phillips, Preiss, Grygiel, LLC, Planning and Real Estate Consultants, dated June 2017. 

BY MR. RUTHERFORD: 

1. Q. And to that, fair to say that the basis ‑‑ this exhibit is based upon the tax map for the Village of Ridgewood, correct?
2. A. Yes.
3. Q. So it's the area where this property's located?
4. A. Yes.
5. Q. Okay.
6. A. So the ‑‑ as I indicated just previously, we looked at the pattern of subdivision of all four of the conditions, the lot width, buildable area rectangle, usable area rectangle, and lot area within 200 feet of the lot line, for properties which are within 200 feet of the subject property, the subject property is identified as the wide L‑shaped lot in the center exhibit on ‑‑ on Figure 1 through Figure 6, I believe ‑‑ Figure 8. And it also shows the proposed subdivision line showing proposed Lot 13.01 and 13.02. So the Figure 1 shows the deficient lot width at the front yard setback, and these are properties within ‑‑ which either touch or are wholly within 200 feet of the subject property. And within this area, there are 12 properties.  There are two which are ‑‑ which conform to the minimum lot width of 125 foot at the front setback line and there are 10 properties which are nonconforming with respect to that condition. 
7. Q. And just go back for a moment. The ones that are ‑‑ that are shown as nonconforming, those lots are all 100 feet in width; is that correct?
8. A. They're all 100 feet in width, correct.
9. Q. Okay.
10. A. Some of them don't have quite the same area in depth as can be seen of that exhibit, but you're correct. All of the ones that are nonconforming are also 100 foot in depth.
11. Q. And, basically, on the west side of Mountain Avenue between Cantrell down to the 500‑foot radius line that you're going to get to in a moment, they're all 100 foots?
12. A. Yes. In fact, if you turn the page on Figure 2, it shows properties which are within 500 foot of the ‑‑ of the subject property. And in this case, there are up to 29 properties. Only seven are conforming or 24 percent are conforming with respect to lot width at the front setback line and 22 are nonconforming or 76 percent.  So there's a substantial degree of nonconformity.  Particularly properties fronting on Mountain Avenue.
13. Q. Is it accurate to say in Figure 2 that four of the seven complying lots actually front on Highland Avenue, still in the neighborhood ‑‑
14. A. Certainly.
15. Q. ‑‑ admittedly in the neighborhood, but not on Mountain Avenue; is that right?
16. A. Yes. And the reason why we did this is, you know, generally, the focus is on the area within 200 foot, but we wanted to show the larger area. Quite frankly, I think your point is well taken that there's a  different sensibility in terms of the size of houses and the size of lots on Highland Avenue that there are on Mountain Avenue, but we just wanted to show that even within the 500‑foot radius, the predominance of the nonconforming condition is with respect to the lot width. And then I'll just go quickly through the remaining figures. Then we looked at the deficiencies with respect to the three other condition.  So Figure 3 is deficient minimum building area rectangle within 200 foot.  Figure 4 is within 500 foot.  And, again, the same percentages of nonconformity.  Only two of the properties are conforming and ten are nonconforming.  Our part ‑‑ in Figure 3, that's within 200 foot.  Within 500 foot of the 29 properties, 7 are nonconforming and 22 are nonconforming at 76 percent degree of nonconformity.  And, once again, predominantly, those are with frontage on Highland Avenue. 

Figure 5 and Figure 6 is deficient minimum buildable usable rectangle within 200 foot, and I won't repeat it, but it's the same lots are deficient with respect to those with the same percentages within 200 and 500 foot. And then lastly, Figure 7 and Figure 8, deficiencies with regard to the minimum lot within 200 foot of the front lot line.  Figure 7 being lots within 200 foot and Figure 8 being lots within 500 foot of the subject property.  So, essentially, with regard to the (c)(2) criteria, the benefits outweigh the detriments is the proposed subdivision will bring this lot into great conformity with the lots in the surrounding area and ‑‑ which is one of the purposes of zoning is to create consistency in the residential neighborhood. 

1. Q. With respect ‑‑ COUNCILMAN VOIGT had a comment earlier about ‑‑ or a question about prevailing setbacks on Mountain Avenue as well as, for lack of a better word, prevailing house size on Mountain Avenue. Again, we've shown two illustrative homes here to demonstrate that we can build houses without variances. In your estimation, are the proposed setbacks shown there and the size of those houses compatible with the other homes on Mountain Avenue.  And if you can comment on that? 
2. A. Yes, my ‑‑ my recollection is I didn't specifically mention that because it ‑‑ it wasn't a variance that was required. My sense is from having visited Mountain Avenue area, my recollection is that none of the existing houses are forward of that setback line, many are at that setback line.

There are a number of houses on that street where the setback is ‑‑ is ‑‑ is greater as well.

So there's not a consistency where they all line up. But this one certainly wouldn't be forward or back from a number of houses both on the same side of the street and on the other street.

That's my recollection.

1. Q. And with respect to the density, you pointed out earlier that even with the subdivision, the density in terms of the ratio of one dwelling unit per area is much less than what has always been contemplated in the zone?
2. A. Yes. When I was looking at the ‑‑ the negative criteria with regard to the (c) variances, not only will the two lots fully conform with the required minimum lot area, but meet the other requirements such as minimum front, rear, side yard setback, the permitted building height, building lot coverage, that will be consistent with the zoning. But there also won't be a violation with the intensity contemplated by the zoning, which is one house per 2500 square foot. In fact, the average lot size here is 41 house ‑‑ per 40,000 square foot, or ‑‑ an intensity that is less than that which the zoning permits. So if the variance is granted, certainly, this won't result in a higher density than the zoning or the master plan contemplates or expects in this particular area. 
3. Q. To go back to the hardship a moment ‑‑ for just a moment, essentially now we have one lot, one house on 80,000 square feet, which is a density far, far less than what's contemplated by the ordinance.
4. A. It's ‑‑ it's less than 1/3 of the density permitted and contemplated by the ordinance.
5. Q. And, finally, albeit, we are here for variances because of the subdivision, but in your estimation as a planner, that ‑‑ that factor in and of itself is clearly not determined, as you mentioned earlier, that you would need not show that the property's been zoned into inutility in order to entitle yourself to a variance; is that correct?
6. A. That's correct.
7. Q. It overstates the burden that an applicant has?
8. A. That's correct.

The hardship in this particular case consistent with the state ‑‑ with the case law is that there ‑‑ the ‑‑ in order to fully conform with all of the zoning requirements, there would be a substantial underutilization of the property. Only one house on an 80,000‑square‑foot lot whereas the zoning contemplates as many as three houses on a lot ‑‑ on the area this size.  So the two houses on 80,000 square foot or an average of 40,000 square foot is a reasonable utilization of the property in light of the zoning, and something which could be corrected if the variances were granted. 

1. Q. Anything else?
2. A. Yeah. Just with regard to the negative criteria, I just want to point out that as MR. SKRABLE indicated, I just want to reiterate that the lots, even though they're going to be 100‑foot versus 125‑foot wide, will allow for a reasonably‑sized home, a properly configured driveway, parking, conforming setbacks, open space in the front, to the side and to the rear, consistent with that ‑‑ with the intent of the zoning ordinance and that which exists in the ‑‑ in the neighborhood.

So, as shown on the plot plan, if the variances were granted, the houses would then be built on each of these lots would not be any closer to the neighborhood ‑‑ neighbors to the side or to the rear, any closer to the street than required or be taller or larger than that contemplated by the zoning because they won't permit the ‑‑ they won't exceed the permitted height or the building coverage nor cover a greater ‑‑ cover the lot with a greater impervious coverage than contemplated by the zoning. At the same time, the lots are regularly configured and allow for a fairly sizable home, which is consistent with the neighborhood.  So in my opinion, there'd be no harm to the purpose and intent to the Ridgewood zone plan. And as I indicated, based on the exhibit, I don't believe that our lots would have any harm or create detriment to the public, that is, to the surrounding properties or the neighborhood at large.  So, I don't believe ‑‑ I believe that the negative criteria can be satisfied, that the variance will not have a substantial detriment to either the public good or the zone plan. 

1. MR. RUTHERFORD: That's all I have for MR. PREISS, Mr. Chairman. Thank you.
2. MR. MARTIN: Mr. Chairman, just a (inaudible) question?

CHAIRMAN JOEL: Yeah, sure.

1. MR. MARTIN: MR. RUTHERFORD, am I missing something? I saw three variances for each property so six total, I believe. MR. PREISS probably (inaudible) somewhere said there were four variances required for each property?
2. MR. RUTHERFORD: Yeah. There's four for each. There's ‑‑ there's lot width ‑‑
3. MR. MARTIN: I got that one.
4. MR. RUTHERFORD: There's lot area within 200 feet of the front lot line ‑‑
5. MR. MARTIN: Hang on a second.
6. MR. RUTHERFORD: ‑‑ which is the function of the width, but that's ‑‑ the ordinance says you're supposed to have 20 ‑‑ 20 ‑‑ let me check ‑‑
7. MR. MARTIN: All right.
8. MR. RUTHERFORD: ‑‑ it's 25,000 within the first 200 feet. We're deficient on both of these.

And then it's the ‑‑ and then it's the width of the buildable area and the usable area, so it's four variances. The same four variances for each lot. 

1. MR. MARTIN: Yeah, I have lot width. I have usable/buildable area, and minimum ‑‑ the minimum usable area rectangle, Bridgette, do you know which I'm missing?
2. MR. RUTHERFORD: It's lot area within 200 feet.
3. MR. MARTIN: Lot, width, front yard setback within 200 feet of the front lot line, is that ‑‑
4. MR. RUTHERFORD: Lot area. Yeah, lot area within 200 feet of the front lot line.
5. MR. MARTIN: All right.
6. MS. BOGART: Lot width within 200 feet of the front lot line which is 100, you don't need that variance.

THE WITNESS: No.  The lot variance needed for each one is there's a requirement that the minimum lot area within 200 feet of the front lot line is supposed to be 25,000 square foot.  Lot 13.01 in that first 200 foot is only 20,000 square foot and in the case of Lot 13.02 is 22,500 square foot.  So those are the two additional variances that are required.  And might I just add something, Mr. Chairman?  Brigette identified potentially another variance related to disturbance of the steep slope, and in planning terms, I believe that that could be granted under the (c)(2) criteria where the benefits outweigh the detriments.  To avoid that variance, the retaining wall would have to be retained without the tennis court, which doesn't seem to serve any function and the homeowner ‑‑ the applicant's intent is to regrade that area and bring it back to essentially the grade that existed prior to the building of the tennis court to reseed and to replant that so that that area would be restored to its previous condition. 

I believe that there's a benefit to that which outweighs the small disturbance to that particular lot area. So if that variance is required, that would be the basis for the granting of that variance as well. 

CHAIRMAN JOEL: Jeff, do you have any questions? 

COUNCILMAN VOIGT: Yeah, I have a question.  We are ‑‑ I guess we're to decide either the (c)(1) or the (c)(2).  Are you proffering both for this or are we proffering one for this for us to evaluate? 

THE WITNESS: Well, we're proffering both.  I believe that either one could stand on its own in terms of the justification.  You don't have to approve both.  And in my opinion, the ‑‑ the (c)(1) hardship is ‑‑ is the stronger of the two, but I believe that the ‑‑ this is a better zoning alternative, and I certainly believe that the benefits of granting this variance outweigh the detriments. 

COUNCILMAN VOIGT: Okay.

THE WITNESS: So, if you're not convinced that it's a (c)(1), I would certainly agree that a (c)(2) is also a basis for a justification of the variance. 

COUNCILMAN VOIGT: So, Chris, what do we do here?  Do we just decide ‑‑ if we decide in the end which of these we would evaluate either the (c)(1) or (c)(2)?  Is that how we do this?

1. MR. MARTIN: I agree with that 100 percent, Jeff. I believe Bridgette could weigh in.

COUNCILMAN VOIGT: Okay.

1. MR. MARTIN: However, the ‑‑ MR. RUTHERFORD is proffering on behalf of his client (c)(1) and (c)(2). If neither apply, that's not good for them.

COUNCILMAN VOIGT: Uh‑huh.

1. MR. MARTIN: If one or the other applies, it's okay.

COUNCILMAN VOIGT: Okay. 

1. MR. RUTISHAUSER: But Bridgette could probably narrow in the issues. I just see, again, a law is actually a little bit different from a planning perspective ‑‑

COUNCILMAN VOIGT: Yes.

1. MR. MARTIN: ‑‑ maybe the planner may have a planner (inaudible).

COUNCILMAN VOIGT: Yes, well, you had ‑‑ you had mentioned under the (c)(2) one of the court cases that had (inaudible) the (c)(1) and they were using (c)(2).

1. MR. MARTIN: That's ‑‑

COUNCILMAN VOIGT: So (inaudible).  Okay.

1. MR. MARTIN: Yes.

COUNCILMAN VOIGT: Okay.  Okay. 

All right. Thank you. 

CHAIRMAN JOEL: Susan? 

MAYOR KNUDSEN: I don't have anything (inaudible). 

CHAIRMAN JOEL: Melanie? 

1. MS. McWILLIAMS: I think for the moment I don't have any questions.

CHAIRMAN JOEL: Joel? 

VICE CHAIRMAN TORIELLI: One question:  Would you consider the existing lot to be underutilized? 

THE WITNESS: Yes. 

1. MR. RUTHERFORD: I'm sorry. I didn't hear that question.

VICE CHAIRMAN TORIELLI: Would you consider the existing lot to be underutilized? 

1. MR. RUTHERFORD: Oh, I'm sorry.

VICE CHAIRMAN TORIELLI: So you consider a lot that have a large 2.5 story dwelling, with a front porch, a back porch, a detached garage, a greenhouse, a tennis court with a retaining wall, and a pool with a patio to be underutilized? 

THE WITNESS: I'm not looking at the ‑‑ at the physical structures on the property.  I'm looking at the utilization from a zoning point of view.  So from ‑‑ the utilization from a zoning point of view, the zoning contemplates or would allow three houses or three lots and the fact that you only have one house and one lot is, in my opinion, a substantial underutilization of the property. 

MAYOR KNUDSEN: Can we just go back to that lot being three lots, three houses? 

THE WITNESS: Yes.

MAYOR KNUDSEN: Kind of walk us through that again. 

THE WITNESS: It ‑‑ you have 80,000 square foot of total lot area, and the minimum lot requirements in the zone is 25,000 square foot.

MAYOR KNUDSEN: But ‑‑ but I think, I just want to kind of challenge that thinking because obviously you can't ‑‑ you have a property that has depth, so is it really fair to look at the whole lot when you can only get a certain width out of it? 

THE WITNESS: You've just stated my case perfectly the way I have stated.  Basically because of the shape of the property, you can only get one conforming lot.  So the 80,000 ‑‑

MAYOR KNUDSEN: Well, you can only get one conforming lot.  That's exactly right. 

THE WITNESS: Correct.  Yes.

MAYOR KNUDSEN: So then the question is:  Because certainly, you wouldn't create three nonconforming lots, but still you're asking for two nonconforming lots then out of that because they're still nonconforming. 

THE WITNESS: Correct.  They're ‑‑

MAYOR KNUDSEN: So you're actually taking what you're ‑‑ you're construing is a hardship, the 200‑feet wide, and what the Vice Chairman just indicated, that is not necessarily being presently underutilized, that it certainly could have a scenario where another structure similarly built to what's existing then would not also create an underutilization.  And in this instance, but creating these two lots, you're actually over utilizing because you're now creating two hardship lots. 

THE WITNESS: Let me state it this way:  In terms of underutilization, I'm talking about that in terms of zoning.  And in terms of the zoning, 80,000 square foot, under the R‑125, could accommodate three lots.  We're not talking about the fact that are there insufficient or small structures on the property?  Where that's not the indication and that's not how the law looks at it with respect to the variances.  So in this particular situation, the applicant has a substantially oversized lot, more than three times the minimum lot size; yet by virtue of the shape of the lot, the fact that it only has 200 foot for frontage on Mountain Avenue, they're only able to obtain one lot and one house on the property.  That's a substantial underutilization in zoning terms.  So the relief here, I think ‑‑ I believe is justified on that basis and consistent with case law, but the case law says a variance may be granted in a hardship case, in this case, the lot width, to relieve the burden of ‑‑ of the underutilization.  And moreover, even with the ‑‑ with the proposed subdivision at 40,000 square foot, both of those average ‑‑ both of those lots substantially exceed the minimum lot size, substantially, and are substantially above what is contemplated in the zoning.  So on a hardship basis, I believe that substantial underutilization is a hardship and I don't believe that from the impact on ‑‑ on the zoning point of view, that there's a substantial detriment to the zone plan.  Moreover, if you look at the consistency of lots in the particular neighborhood, particularly on the same side of the street on Mountain Avenue, virtually every lot in ‑‑ in that particular area, is 100‑foot wide.  So basically to say those people can all have one house with a 100‑foot lot, but in this situation, you can't subdivide the property and have a 100‑foot lot, I believe that that's a ‑‑ a case where you're discriminating against this landowner by depriving them of a similar utilization of their property. 

CHAIRMAN JOEL: Anything further, Joel?

VICE CHAIRMAN TORIELLI: No.

CHAIRMAN JOEL: So do you think the hardship's self-created?  I mean, it's a function of a single‑family home on that property. 

THE WITNESS: It's ‑‑ it's not a self‑created hardship.  The ‑‑ the action of the subdivided property is the ‑‑ is the homeowner's or the ‑‑ the developer's right to do so. 

CHAIRMAN JOEL: Sure, within the zoning ordinance, and if something's up‑zoned, it's up‑zoned?  You have to comply with the zoning ordinance. 

THE WITNESS: Yes, but the ‑‑ but the Municipal Land Use Law allows for variances in particular situations and based on the physical conditions of this particular property.  So it's not a self‑created hardship.  It's not that, you know, in ‑‑ in past years, the owners subdivided the property into two lots and utilized them and then is coming in now for a third lot on a property which is ‑‑ which is undersized, that would be a self‑created hardship. This property was ‑‑ was subdivided and created a very long time ago and used for a single house.  Now, it's being ‑‑ the proposal is to subdivide them into two lots which is the right of the ‑‑ of the applicant to do.  And the variance may be granted under the ‑‑ is contemplated and, I believe, should be granted under the particular conditions that exist today.

CHAIRMAN JOEL: And the discretion of the board, if we feel that it's ‑‑

THE WITNESS: Obviously. 

CHAIRMAN JOEL: All right. 

Chris, do you have any questions?

1. MR. RUTISHAUSER: No, not at this time.

CHAIRMAN JOEL: Okay. 

Brigette, do you have any questions?

1. MR. BOGART: No questions.

I just wanted to answer MR. MARTIN's question with regard to the four variances.

I do agree with ‑‑

1. MR. MARTIN: I got it.
2. MS. BOGART: Okay. I can see it from my report that (inaudible).

CHAIRMAN JOEL: Do you have any further questions? 

1. MR. MARTIN: I think if the board professionals (inaudible) board professionals (inaudible).

CHAIRMAN JOEL: Okay. 

Jeff, so you another question?

COUNCILMAN VOIGT: Yes, I just wanted to ask Bridgette. 

CHAIRMAN JOEL: Yes. 

COUNCILMAN VOIGT: What do you think we should do, the (c)(1) or the (c)(2)? 

1. MR. BOGART: From a planning perspective?

VICE CHAIRMAN TORIELLI: Yes.

CHAIRMAN JOEL: She'll testify. 

COUNCILMAN VOIGT: Oh, okay.  So ‑‑

CHAIRMAN JOEL: We'll get there.  Okay.

Now we have the public. Any questions from the public for the planner, just come on up, state your name, and address. 

1. MR. WALKER: My name is Bill Martin Walker, but I still live at 114 Cottage Place.

CHAIRMAN JOEL: So nothing's changed over the past 20 minutes? 

1. MR. WALKER: There haven't been any underuses of my property since I spoke last.

I do have a question for the planner, and I really do appreciate the ‑‑ the ‑‑ the level of organization that you've provided, you know, to see here. I'm a little bit confused by your testimony, so I want to ask a general question first before we dig down deeply because you've mentioned both the existence of our (inaudible) and also the existence of the case law that applies to this.  So my question to you is:  In your opinion, does the planning board have actual discretion in whether or not to refuse the variance? 

THE WITNESS: They do have discretion, but they must follow both the Municipal Land Use Law and case law.  And, in my opinion, if that is followed, then the variance should be granted. 

1. MR. WALKER: Okay. Well, I don't understand your answer because I'm don't (inaudible) do you have the case law by law, although I'm not an attorney, but I do ‑‑ so getting down into our ‑‑ our master plan for the perimeter, are you familiar with the conditions under which the master plan was designed in order to advocate the denial or the provision of variances?

THE WITNESS: The ‑‑ the master plan does not address specifically the conditions under which variances should or should not be granted, that is the purview of the Municipal Land Use Law ‑‑

1. MR. WALKER: Okay.

THE WITNESS:  ‑‑ zoning ordinance.

1. MR. WALKER: Okay. Great. Now, I really appreciate, you know, the parody that you showed the, you know, the large number of comparable lots for this neighborhood.  And just from a naive point of view, I can only think of two conditions under which this could happen.  One of them is that all these lots already existed when the current master plan was put into effect or all of these lots are granted variances under the existing master plan.  Do you know which is the case in this neighborhood? 

THE WITNESS: I do not know the case, but based on the fact that the predominant lot size is ‑‑ the predominant lot width in this area is 100 foot, I believe that at the time of these subdivisions were made, that that was a conforming ‑‑ that that constituted a conforming lot width.  But I can't state that without authority.  It's based on my expertise of having worked in this field for 35 years both on the municipal side and also the developer's side. 

1. MR. WALKER: Okay. So if I understand your answer, you're saying that all of these lots ‑‑ that all of the nonconforming lot size only became nonconforming when a master plan was created to define the desired lot size and adding setbacks and all this other stuff for Ridgewood?

THE WITNESS: Let me just correct that. I can't state categorically because I've not done the research, and I don't think that that is actually relevant to this matter, but based on my knowledge of ‑‑ of zoning and master planning in the State of New Jersey, I would suspect that whoever subdivided this property did not come in and get, you know, 12 variances for, you know ‑‑ the same variances that are being applied for tonight.  The logic would tell me that these subdivisions were created when the zoning standards ‑‑ in this particular area, this may have been a completely different zone, but in this particular area, the minimum lot width was 100 foot, not 125. 

1. MR. WALKER: Okay. So, if I understand what you're saying, you're not certain or you don't know whether the ‑‑

THE WITNESS: That's correct. 

1. MR. WALKER:  ‑‑ master plan was written in such a way as to declare these lots nonconforming?

THE WITNESS: When you say "master plan," it's the zone ‑‑

1. MR. WALKER: The current ‑‑ the current master plan for Ridgewood.

THE WITNESS: The ‑‑ the master plan is a policy guide.  I think what you're referring to is a zoning ordinance which sets forth the requirement for the minimum lot width. 

1. MR. WALKER: And ‑‑

THE WITNESS: So ‑‑

1. MR. WALKER:  ‑‑ and ‑‑

THE WITNESS:  ‑‑ I don't know for a fact that this ‑‑ this area was subdivided prior to the establishment of the minimum 125‑foot, you're correct.

1. MR. WALKER: Okay.

THE WITNESS: I'm just saying based on my knowledge and experience, I mean, I've worked in the field for 35 years, it would surprise me that each of the developers of this lot came to this board or ‑‑ or the zoning board and got variances for each of these particular lots. 

1. MR. WALKER: So the other questions I would ask have to do with the issue of hardship. I think one of the board members asked ‑‑ one of the questions I have about that, and, frankly, I don't understand the question or the answer. Who is the owner of the property now?

FEMALE AUDIENCE MEMBER: We are. 

CHAIRMAN JOEL: Please don't call out.  It's a question for the planner. 

1. MR. WALKER: Well, maybe we can ask it more generally, is the owner of the property also the person who is requesting the variances ‑‑
2. MR. RUTHERFORD: Yes, if the board pleas, I can answer that question. Mr. Jennee is the contract purchaser, has filed this application with the consent of the owner, Mrs. Berg.
3. MR. WALKER: I mean, well, who filed the application?
4. MR. RUTHERFORD: The applicant, Robert C. Jennee Construction Co., Inc.
5. MR. WALKER: And was the applicant aware of the existing zoning law as well as ‑‑ well, just the existing zoning law when he filed the application.
6. MR. RUTHERFORD: That ‑‑ that is irrelevant under the Municipal Land Use Law because it focuses on factors related to the applicant and not the property.

CHAIRMAN JOEL: That's a question directed ‑‑ I mean, you can answer if you know. 

THE WITNESS: Yes, you know I would have given the same answer.  It's ‑‑ it's irrelevant.

Prior knowledge of a public fact that you're purchasing a property that it may require a variance is not grounds for the denial of such a variance.

1. MR. WALKER: Well, wait a minute the case ‑‑ what I'm hearing is the word "hardship," and I don't think of hardship applying to individual parties, either the owner, the applicant, or the neighborhood ‑‑

THE WITNESS: We're ‑‑ we're not ‑‑

1. MR. WALKER:  ‑‑ the community or in the case of the planning board, the town of Ridgewood as a whole. Can you envision any hardship result to the town of Ridgewood as a whole resulting from this lot holding two‑family homes as opposed to a one‑family home?

THE WITNESS: The ‑‑ the hardship under the Municipal Land Use Law is the hardship related to the property, itself, not to the owner or to the applicant.  And I've indicated in this case, that the hardship which runs with the land is the fact that it's significantly oversized, but due to its shape and its configuration, only one conforming lot or one conforming house would be permitted whereas the zoning contemplates as many as three homes or three lots.  That's the substantial underutilization of the property and the hardship related to the particular conditions, consistent with the Municipal Land Use Law. 

1. MR. WALKER: Well, if I understand what you're saying then and it sounds like you answered my first question which is: You personally do not believe ‑‑ do you personally not believe that the planning board has any discretion deciding whether to grant this variance?

THE WITNESS: Well, I have ‑‑

1. MR. MARTIN: Well, I just object to the question in terms of the "person." He's testifying as a professional.
2. MR. WALKER: But as a professional, do you ‑‑ I mean, your familiar with the zoning law and case law and you're familiar with past cases in different counties in New Jersey.

Do you believe that in actual fact the planning board does or does not have eventual discretion in deciding whether or not to...

THE WITNESS: Of course they have discretion.  The answer the yes. 

1. MR. WALKER: Do you believe a judge would overturn that in a court of law?

THE WITNESS: Excuse me?

1. MR. MARTIN: I don't think he can speculate ‑‑
2. MR. RUTHERFORD: Yeah, that's ‑‑ that's not a proper question.
3. MR. MARTIN: ‑‑ as to that.

CHAIRMAN JOEL: Yes, that's not a proper question?

1. MR. MARTIN: No.
2. MR. WALKER: That's not a proper question?

Well, I'm ‑‑ I'm here as a ‑‑ as a ‑‑ as a Ridgewood resident. I'm representing myself as a landowner.  I'm representing my family.  I have children in the school system here.  I'm representing somebody who's ‑‑ 

CHAIRMAN JOEL: You can keep asking questions. 

1. MR. WALKER: I can keep asking (inaudible) questions.

CHAIRMAN JOEL: Yes. 

1. MR. MARTIN: And you're argument ‑‑ I'm sorry, Chairman.

CHAIRMAN JOEL: Yeah. 

1. MR. WALKER: Well, I ‑‑ if I have a question, you know. I'm going to ask it. I'm asking a question in the English language and I'm not getting it answered in a way that I can understand, which is you're saying as a professional ‑‑ I am asking as a professional planner, do you believe that ultimately the planning ‑‑ the planning board's decision, if they were to chose to deny the variance, would be overturned? 

THE WITNESS: I'm not going to answer that question.  That's ‑‑ that's for a court of law.  What ‑‑ what I am indicating ‑‑ and I also happen to be a Ridgewood resident, by the way, and what I'm indicating that, to me as a planner, when I look at this property and I evaluate the grounds for granting the variances that are applied, that I believe that both the Municipal Land Use Law and case law would essentially require the board to grant the variance on the basis of hardship as opposed to on the basis of (inaudible). 

1. MR. WALKER: Okay. So what I ‑‑ I ‑‑ I don't ‑‑ so, I have no way of knowing which way ‑‑ can I address the ‑‑ one of the board and just give my opinion?

CHAIRMAN JOEL: No.  There will be public comments at another point in this hearing, so ‑‑

1. MR. WALKER: Oh, okay.

CHAIRMAN JOEL: ‑‑ you can wait for that.

1. MR. MARTIN: Then you ‑‑
2. MR. WALKER: Okay. Great. Thank you.

CHAIRMAN JOEL: All right.  Thank you. 

1. MR. WALKER: And you said that that's another point in the hearing today or ‑‑

CHAIRMAN JOEL: Yeah, probably tonight, yeah. 

1. MR. WALKER: Oh, okay.

CHAIRMAN JOEL: Anyone else have any questions for the planner?  Okay.  No, questions to the planner?

1. MS. McWILLIAMS: Can I ask one quick question?

CHAIRMAN JOEL: Oh.

1. MS. McWILLIAMS: I'm sorry. I just ‑‑ is ‑‑ is there any indication of what is the intention with the property that's owned along Marlborough Road that also ‑‑ that does fall into the wetlands area? And the ‑‑ I mean, it's most of Gypsy Pond Park seems to fall into 200‑foot radius of this property.  And I've ‑‑ I've paid close attention as the village has worked, you know, on Gypsy Pond Park and ‑‑ and pay attention to the ecology going on over there. But I'm just wondering if there's any indication of what's going to go on in the back of that property ‑‑ the other property along that road? 
2. MR. RUTHERFORD: Yeah, we are also ‑‑ you're talking about Lot 11, correct?
3. MS. McWILLIAMS: I believe so, yes.
4. MR. RUTHERFORD: Yes. We're also the contract purchaser of Lot 11. We have no plans for the development of that property, and quite honestly, I'm not even sure it is developable because ‑‑
5. MS. McWILLIAMS: I would think it wouldn't be, right?
6. MR. RUTHERFORD:  ‑‑ and things like that, so we had no plans to do anything with that at all. We did understand that the village might have some interest in it and not that that's particularly relevant to this matter, but we would certainly be happy to talk with the village about that. We understand the Village may have some interest there.
7. MS. McWILLIAMS: Okay.
8. MR. RUTHERFORD: But ‑‑ but we have no plans, and, again, I don't think ‑‑ I won't speak for the engineer, but I'm not sure you can do anything there.
9. MS. McWILLIAMS: I ‑‑ I would not have thought so based on what I can see, but, I ‑‑ you know, I would want to make sure it was protected and everything possible.

MAYOR KNUDSEN: And I had actually wanted to ask a question, on your ‑‑ your analysis of properties in the surrounding area, can you just show us which is the other lot on Marlborough Road, how it's depicted? 

THE WITNESS: You're talking about Lot 11? 

MAYOR KNUDSEN: Yes, please. 

THE WITNESS: Well, we ‑‑ we didn't show the individual lot lines in ‑‑ in gypsy Pond Park.

Basically, we just showed the blocks, so Lot 11's not identified specifically on the ‑‑ on this plan.

MAYOR KNUDSEN: Can you identify Lot 11 in reference to this particular ‑‑ because you offer this as ‑‑ it's your sheet. 

THE WITNESS: Yes.

MAYOR KNUDSEN: And I don't see Lot 11.  I see Gypsy Pond Park ‑‑

THE WITNESS: Correct. 

MAYOR KNUDSEN: ‑‑ identified as 2515, and I'm confused by that. 

THE WITNESS: Yeah, we ‑‑ we ‑‑ I ‑‑ I did ‑‑ because Gypsy ‑‑ because it's ‑‑ it's ‑‑ it's part of Gypsy Pond Park and it's not developable, we felt that, you know, it doesn't represent an opportunity to provide a conforming single‑family lot.  And we did not ‑‑ I did not want to prejudice the analysis by including the lots beyond Marlborough Road, so they were excluded. 

MAYOR KNUDSEN: But I think that it's ‑‑ I think it's kind of relevant to this discussion.  I'm glad my colleague raised the issue because I had been looking at it the whole time wondering exactly where that was.  So how do we have a depiction of that on your analysis? 

THE WITNESS: Well, if ‑‑ if ‑‑ if we were to include it, it doesn't have frontage on a public road, so I'm not quite sure how you would apply any of these zoning standards to it because there's no front yard, there's no front ‑‑

MAYOR KNUDSEN: That wasn't my question. 

That wasn't my question. My question was merely:  How ‑‑ where is it depicted on this analysis because if we want to have a true analysis, would it be significant to identify that particular lot? 

THE WITNESS: Go ahead. 

1. MR. RUTHERFORD: I'm sorry. Most respectfully, Mayor, the area map on MR. SKRABLE' s plan in the upper right‑hand corner, he shows Lot 11 because he shows the three pads of the map there. We did not ‑‑ MR. PREISS didn't include Lot 11 in his analysis because it's not developable now and not developable for a single‑family so it really doesn't add anything to your analysis.  But he shows Lot 11 and it's ‑‑ you'll see, it's in Block 2515, which MR. PREISS showed on his ‑‑ his plan.  He shows Gypsy Pond Park, 2515 and you'll see the outline of Lot 11 there. 

MAYOR KNUDSEN: I did see that. 

1. MR. RUTHERFORD: If that helps.

MAYOR KNUDSEN: I was asking specifically why it was eliminated from this analysis. 

THE WITNESS: And just to ‑‑ and if I can ‑‑ I don't mean to repeat myself, Mayor, but if we'd included it in the analysis, it would not ‑‑ the analysis was done to show how these particular lots, if they were subdivided, would relate to the existing character ‑‑ the developed character above the neighborhood.  And since Lot 11 on Block 2 ‑‑ 2515 is not developable, it's not a conforming lot, it does not have a single‑family home on it.  It's essentially undevelopable.  There's ‑‑ there's no access to it.  It would throw this analysis off and create a ‑‑ a prejudiced view of the extent of the nonconformity.  I can say that if it was included, that it ‑‑ it ‑‑ it would ‑‑ it probably would be conforming with regard to the minimum lot width because it's obviously wider than 200 foot and it probably would conform to the other requirements.  So it might be the third conforming lot of 13 properties which would reduce the extent of nonconformity by maybe 5 or 6 percent.

1. MR. MARTIN: Unless that was subdivided and then it might not conform, but as it presently exists, single‑family zone would be okay in terms of lot width. I think we can stipulate that.
2. MR. RUTHERFORD: The ‑‑ yes.

MAYOR KNUDSEN: All right then. 

THE WITNESS: And, just, if I might add, it doesn't change my ‑‑ my ‑‑ my conclusions or my opinion in any way. 

MAYOR KNUDSEN: Okay.

CHAIRMAN JOEL: We're going to take a five minute break and then we'll start out with our architect.  (Whereupon, a recess was had.)

CHAIRMAN JOEL: We're going to go back on the record. 

Michael, call the roll.

1. MR. CAFARELLI: MAYOR KNUDSEN?

MAYOR KNUDSEN: Here. 

1. MR. CAFARELLI: COUNCILMAN VOIGT?

COUNCILMAN VOIGT: Here.

1. MR. CAFARELLI: Mr. Torielli?

VICE CHAIRMAN TORIELLI: Here.

1. MR. CAFARELLI: MS. McWILLIAMS?
2. MS. McWILLIAMS: Here.
3. MR. CAFARELLI: MR. SCHEIBNER?
4. MR. SCHEIBNER: Here.
5. MR. RUTISHAUSER: He's recused.
6. MR. CAFARELLI: Mr. Joel?
7. MR. JOEL: Here.
8. MR. CAFARELLI: MS. ALTANO?
9. MS. ALTANO: Here.

CHAIRMAN JOEL: Okay. MR. RUTHERFORD, we just discussed this matter and we're going to carry it to September 5, 2017, to provide the applicant with the opportunity to contact the HPC on this matter.  And so it's going to be carried September 5, 2017 without further notice by the consent of the applicant, and without prejudice to the board.  And it's with the understanding that we do have a few other matters on that night and it's going to be a tight schedule.  We're going to see if we can fit it in.  If, for some reason, one of the other applications isn't able to be heard, then that will afford time.  But if not, if it's too tight, then it might have to be carried to a further date. 

1. MR. RUTHERFORD: We understand. We will file with HPC immediately and I think we can make their meeting, hopefully, this month of August. And that's fine. 

CHAIRMAN JOEL: Okay. 

1. MR. RUTHERFORD: We certainly add an extension of time for the board to the September meeting. So then we'll come back, we will have been to the HPC. I was anticipating more ‑‑ I mean, if I had any more testimony it would be very brief. 

CHAIRMAN JOEL: Okay.

1. MR. RUTHERFORD: We'll hear from your professionals.

CHAIRMAN JOEL: Okay. 

1. MR. RUTHERFORD: And we will also get a transcript of this evening's meeting and provide it to the board with the expectation that we're going forward on September 5th, those who are absent and perhaps they can listen and render themselves eligible.

CHAIRMAN JOEL: Okay.  Sure.  Good.  Thank you. 

1. MR. RUTHERFORD: Thank you, Mr. Chairman and members of the board, for your time.

(Whereupon, this matter is continuing at a future date.)

Adoption of Minutes: The minutes from August 16, 2016 and August 30, 2016 were adopted with corrections.

The meeting was adjourned at 9:45 p.m.                                                                 

Michael Cafarelli
Board Secretary
Date approved: September 4, 2018