BOARD OF ADJUSTMENT MEETING MINUTES November 28, 2007

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1 Chairman Dietz called the Board of Adjustment Meeting of to order at 7:30 P.M. announcing that this meeting had been duly advertised according to Chapter 231, Open Public Meetings Act. The meeting took place at the Municipal Building in the Court Room. ROLL CALL Chairman Dietz - Present Vice-Chairman Wetter Absent Jack Kennedy - Present Frank Valcheck - Present Barry Quick Absent John Sheridan- Present Kevin Lovell - Present Joseph Jaghab Alt. #1- Arrived 7:45 pm Helen Haines Alt#2 Arrived 7:35 pm Peter Cipparulo Alt#3 - Absent Also in attendance was Mark Anderson, Board Attorney, Robert Ringelheim, Township Planner, Jeffrey Perlman, Consulting Planner, William White, Board Engineer and Lucille Grozinski, CSR. PLEDGE OF ALLEGIANCE ACCEPTANCE OF RESOLUTIONS Chairman Dietz read a resolution into the record which commended Jeffrey Perlman for his service to the Township and Board as Assistant Township Planner, Zoning Officer and Secretary to the Board of Adjustment from 2005 to BOARD OF ADJUSTMENT BUSINESS BUSINESS FROM THE FLOOR APPLICATIONS JEFFREY ROTH File #BA Block 183, Lot 27, 1106 Millstone River Road Seeking certification of pre-existing non-conforming uses for contactors yard (1 principal use with tenant/contractors); for storage of contractors vehicles and equipment; for storage of contractors materials and stock in trade; for storage of fuel for contractors vehicles and equipment; for repair and maintenance of contractors vehicles and equipment; and for office and office-related uses. carried from September 26, 2007 Exhibits: A-12: July 27, 2006 Letter from Mr. Troutman to the Hillsborough Police Department A-13 August 9, 2007 Response Letter from the Hillsborough Police Department to Mr. Troutman A-14 Mr. Agovino's Letter of 8/23/07 to the Board A-15 Letter dated 10/36/06 from the Compliance and Enforcement Officer A-16 Phase 1 Report Prepared by Mr. Agovino dated 4/4/ Photo taken by Ms. Shotwell of the South Corner of the Driveway 0-24 Photo taken by Ms. Shotwell of the North Corner of the Driveway 0-25 Photo taken by Ms. Shotwell of Mr. Roth's Driveway 0-26 Photo taken by Ms. Fenyar of Mr. Roth's 0-27 Photo taken on 12/15/05 by Ms. Fenyar 0-28 Photo of Mrs. Fenyar's Driveway from across the street Mr. Linnus, attorney for the applicant, appeared. Mr. Linnus summarized the prior hearings on this matter. The Board requested that the applicant start with the use variance application which is on-going. Mr. Linnus indicated that he was going to recall Mr. Troutman to answer questions from the Board and the public on traffic issues raised at the last meeting, Vincent Agovino to address a

2 question pertaining to environmental considerations and have John Chadwick provide planning testimony. Chairman Dietz then indicated that he was going to go out of order and have Mr. Jannarone provide testimony as a witness for the Board. Glenn Jannarone was then sworn in and provided the following testimony based, in part, on questions from Mark Anderson, Board Attorney: -He is the son of Phillip Jannarone. -His father was one of the owners of the property and the company that operated on the property now occupied by Mr. Roth. -The property was bought in the early 1960 s and was vacant. His father and uncle later decided to build a garage to move the paving contractor business from Matawan. -In the late 1960 s the garage was built and the office later or just after the garage. -The office was for his father, uncle and office staff to run the company. -The garage and office were attached to each other and were built almost simultaneously. -The property was sold in the spring of July of 1980 sounds right. -The property was acquired by his family in 1962 or It was not a farm field, but there were a few wrecked cars and no business operation or buildings. It had been that way for at least a few years. -The garage was used for repair and maintenance to Jannarone company vehicles. There were no subleases. Glenn Jannarone was a foreman for the company and was at the subject property on a regular basis. -The office was strictly used by Jannarone Engineering. Only 1 time in the late 1970 s a tractor trailer was on the site as an experiment to see if a trucking company could come in. The Township and neighbors objected and the idea was discarded. -In 1979, a variance application was submitted by Jannarone Engineering for a trucking operation. It was understood that a variance was needed. -There were no other tenants or uses other than Jannarone Engineering. -Jannarone Engineering kept approximately 8 tandem large dump trucks on site. It was an active yard with most equipment left at the project sites and brought in only for repairs or when it was slow. There were a few small dump trucks, a low bed trailer and cars and pick-up trucks going in and out all day long. -The operation was 5 days a week and rarely on Saturdays for emergencies, but never on Sundays. -During the week, the hours were 8 am to 4:30 pm. The yard was opened up at 6:30-7 am and drivers were dispatched and then returned no later than 5 pm. -There were some materials stored outside the fence. These were materials left over from a job, including pipes, soil and gravel. These materials were used again. There was a certain amount of material stored all the time maybe loads of topsoil, 50 loads of gravel and some various sized pipe (a few hundred feet). -The fence was basically located around the building, including the office and garage, less than ½ the property. -Exhibit A-10 was then shown and Mr. Jannarone indicated the original fence line included the hatched area. The area to the right of the fenced area was not fenced during the Jannarone ownership. Mr. Perlman asked when the structure was built. Mr. Jannarone responded the garage was built in the time frame and the office was then started. Mr. Perlman asked about a small garage on the property. 2

3 Mr. Jannarone responded that it was built by Jannarone Engineering in It was used for equipment storage for a fuel truck. The underground tanks were installed in the late 1960 searly 1970 s after the garage was built. Mr. Perlman asked if permits were issued for the use of the property and for the erection of the structures. Mr. Jannarone indicated that he remembered inspectors came around from the Township. Mr. Perlman then asked what the property was used for in the time between the purchase of the property by the Jannarone family and the construction of the building. Mr. Jannarone responded that the property was used for storage of pipe. It was called the pipe yard in the area to the east of the fence. Mr. Perlman asked if permits were ever issued to store pipes in the yard. Mr. Jannarone doubts it. It was zoned light industrial then. Mr. Perlman asked if there was an application submitted to merge or consolidate 2 lots. Mr. Jannarone could not remember any application. Mr. Dietz asked what kind of pipe was stored. Mr. Jannarone responded it was some storm sewer pipe and castings. There were a couple of dozen pieces. Ms. Haines asked how many employees would come to the site in the morning and go out to work. Mr. Jannarone responded that there were 7-8 people in the office, 2 were in the shop and there were another 8-10 drivers. The office staff and mechanics in the shop would stay. His father and uncle would go out to the jobs during the day and come back. Mr. Dietz asked what average number of pieces of iron would be on-site. Mr. Jannarone responded maybe a dozen, 18 tops and that most were out in the field. There were 3-4 minimum and maximum 8 tandem trucks on-site. Ms. Haines asked if any materials were ever sold from the site. Mr. Jannarone responded that there was no wholesaling, and that this was used for the company business only. No other contractors used the site. Mr. Anderson asked if the building was inspected. Mr. Jannarone noted that everything was inspected. Mr. Anderson indicated that Township records do not show that building permits were issued, but this could be due to any number of factors. 3

4 Mr. Anderson noted that the 1979 Jannarone hearing transcript indicated that the building was constructed in Mr. Jannarone confirmed that it was built in Mr. Anderson indicated that there was testimony that the garage contains what appears to be a floor drain that was closed. Mr. Jannarone indicated there was a floor drain in the garage that liquids could flow into. It was always open while Jannarone Engineering owned the property. It was used for drainage of snow melt. There was no indication of an outlet. The pipe the drain connected to pre-existed the garage and was found during construction. It was a 4 inch cast iron pipe. Equipment repairs were also done in the area near the drain. Fluids could have gone down the drain at that time, although a concern for the environment was noted. Mr. Linnus then confirmed that the chain of ownership passed from Jannarone to D &L Construction to Mr. Roth. He asked what was on the property when originally purchased. Mr. Jannarone noted there was prior excavation of the property and abandoned cars. Mr. Linnus noted that there was a variance application submitted in 1979 and provided an exhibit from that application. He noted the main use of the property at that time was the storage and repair of trucks and equipment for Jannarone and also stockpiled stone on the site and indicated the vehicles stored on the site. Mr. Jannarone noted his general agreement and that the busy season for the paving business was from April to November. At that time trucks per day went in and out of the site. The driveway had to be widened to gain truck access but there were no problems. There were office personnel during the busy season on-site. Mr. Linnus indicated Exhibit A-17. The fenced area was noted. Mr. Jannarone indicated the storage of equipment was all kept inside the fence. Excess pipe storage was outside the fence. He indicated that traffic along Millstone River Road has increased over the last 25 years. Mr. Lovell asked if any use variances were approved for the site. Mr. Jannarone indicated that he had no knowledge. Mr. Perlman asked who dealt with the Township on permitting. Mr. Jannarone indicated he was the foreman in the field. His father and uncle would have handled permitting. Mr. Linnus asked if any notices of violation were sent by the Township. Mr. Jannarone was not aware. Open to the Public- Linda Kenyhercz, 1112 Millstone River Road, questioned the widening at the bottom of the driveway. 4

5 Mr. Jannarone indicated 4-5 feet noting he did not know the total width at that point. Ms. Kenyhercz noted the deed provided a 40 feet right-of way and 5 feet on the south side of the right-of-way does not belong to her. Susan Fenyar, 1111 Millstone River Road, asked how many trucks were parked on the property overnight. Mr. Jannarone replied a maximum of 12. No hazardous materials were stored. During construction season, all trucks left the site every day and in the winter trucks were used to plow snow. The only time that trucks were started early was for snow clearing. Steven Fenyar asked about the size of the tandem trucks. Mr. Jannarone responded 80,000 pounds. Mr. Fenyar asked about outside storage beyond where the pipes were stored. Mr. Jannarone noted this was a flat area where soil and gravel were stored. This was clarified in response to a question from Mr. Linnus. Mr. Fenyar asked about lighting. Mr. Fenyar noted a light was mounted on a pole facing the office due to a break in that was on a timer. Mr. Troutman then testified in response to questions from Mr. Linnus in response to Board concerns that were previously raised. He indicated that a dump truck added to a trailer is not part of the business conducted by Mr. Roth, but a tenant has a small dump truck and flat bed trailer that was observed making a left turn onto River Road with a smaller turning radius than a tractor trailer. The rut issue was addressed in Exhibit A-18. The 5 foot strip of land indicated by Ms. Kenyhercz was indicated as between her property and Mr. Roth s property. Trucks other than the tractor trailer previously testified to that go in and out of the driveway were addressed. Delay calculations for vehicles entering the driveway were also discussed. It was noted that the 2 existing tractor trailers should be limited to going in and out of the site 2 times per day for safety. The tractor trailers should be limited to prohibit turns between 7-9 am and 4-6 pm. Turning movements for the tandems and tractor trailers onto Millstone River Road were discussed. It was noted that Mr. Roth owns 2 trailers which are not used to haul iron. He hires a truck to haul his iron on an occasional basis. Public Comments- Mary Courtier, 1095 Millstone River Road, questioned whether the truck hired to haul iron adds another truck to the equation. Mr. Troutman responded on an occasional basis. George Shotwell, 1115 Millstone River Road, questioned whether the existing use is more intense than the Jannarone operation based on the earlier starting time. Mr. Troutman stated that an off peak time is acceptable and that there is only 1 truck at the earlier time. Bill Courtier, 1095 Millstone River Road, questioned the use of the right-of-way. 5

6 Mr. Troutman indicated Mr. Roth is either using his property or the County right-of-way. He noted that the ruts were caused by lost motorists. Mr. Agovino then clarified the Somerset County Hazmat call of Monday November 14, 2005 regarding an oil sheen at the subject property. The County noted that the problem was abated. Chairperson Dietz questioned the discharge of the drain that was previously testified to. Mr. Agovino noted his concern regarding the drain. He indicated a discussion with Mr. Jannarone during the break indicated that it was a horizontal drain pipe draining to the east of the building. Based on the testimony there is nothing that raises any additional red flags. Mr. Lovell asked about testing on the site. Mr. Agovino advised that the testing was conducted where it was felt there would be the most potential of contamination based on Mr. Roth s financial considerations. That was 4 tests for petroleum hydrocarbons. A standard of 1 test for every 2 acres is required which is in the ballpark. The test sites were indicated. Mr. Agovino responded to additional concerns by Board members for additional testing. Public Comments- Susan Fenyar questioned previous testimony on the tank and spill prevention plan. Mr. Agovino noted the threshold amount and addressed spill containment. Ms. Fenyar asked about soil and mulch as a regulated waste. Mr. Agovino indicated they are not. Ms. Fenyar asked about limits to the use of the soil. Mr. Agovino responded there are none based on his findings. Ms. Fenyar asked about an LOI for the Roth property. Mr. Agovino responded that he has not seen one and does not know if Mr. Roth has applied for one. Ms. Fenyar asked about the NJDEP violation. Mr. Agovino noted the violation was satisfied and explained the nature of the violation. Ms. Fenyar questioned soil contamination testing for pesticides Mr. Agovino responded there was no testing for pesticides. Ms. Fenyar asked if there was knowledge of a truck repair facility in preparing the Phase 1 and if the various related activities were taken into account. Mr. Agovino related that the Phase 1 was based on the Environmental Commission concerns. Ms. Fenyar asked about the diesel fuel tank. 6

7 Mr. Agovino noted no evidence of staining which would have required testing. Ms. Fenyar asked about soil contamination. Mr. Agovino responded that the levels of contamination were well below clean up requirements. Ms Fenyar asked if Mr. Roth is out of compliance with the EPA regarding the spill prevention plans. Mr. Agovino responded that he did not know the status of compliance. Ms. Fenyar asked about the permit for the 1,000 gallon tank and what the tank is used for. Mr. Agovino responded that should be directed to Mr. Roth. Ms. Haines questioned where the tests were done. Mr. Agovino responded that tests were done in Sterling s yard, DeFeo s yard, and the last 2 in the stockpile. Chairperson Dietz asked about the mulch pile and the sheen produced over time. Mr. Agovino responded that mulch will ferment and produce byproducts that are iron and manganese which are not petroleum byproducts. Mary Courtier asked about whether the drain in the garage is really sealed. Mr. Agovino indicated that the drain is sealed with concrete but without digging it is not known as the extent. Ms. Courtier asked about how the test samples were taken. Mr. Agovino testified as to the lab report analyzing the test samples and indicated how the test samples were taken. Ms. Courtier indicated that monitoring wells on the subject property were sealed in the late 1990 s. Mr. Agovino noted that the monitoring wells were cleared at the time they were sealed. All information reviewed so far does not give an indication of an on-going problem. Mr. Anderson asked about the Garden State Lab reports. Mr. Agovino indicated these were test results taken by the Township and that the reports were missing sheets. It was noted that conversations with Dr. Belnay indicated the he had no concerns. Mr. Lovell asked how contamination works. Mr. Agovino explained that the pipe configuration is not known and how the contamination normally flows. Technical State requirements are to test in the first 24 inches. It was noted there was no way of knowing where the pipe goes. Mr. Lovell wants to know where the pipe goes or test the groundwater. 7

8 Mr. Agovino again noted the State testing requirements. The 2 sealed monitoring wells were still there. Normally they would be sealed with concrete. Mr. Perlman asked about the septic system location. Mr. Agovino responded that the same method to locate the pipe could be used to find the septic system location. Mr. Roth indicated that Dr. Belnay performed a test to locate the septic system. This was done within a year ago. Susan Fenyar questioned the possibility of performing the SP+40 test the Environmental Commission wanted based on knowing the location of the septic system. Mr. Agovino responded that the test would have been done on soil and had nothing to do with the septic system. This was recommended by Mr. White s office. Ms. Fenyar read a report from the Environmental Commission asking for the PP+40 test. Mr. Agovino would not do the PP+40 test on the septic system because of the expense. He would test for substances flushed down the floor drain. He would do the volatile organics and semivolatiles. He explained how he would perform the test. Mr. White asked if the test would be more appropriate in the leach field. Mr. Agovino noted it would be advantageous to sample the soil using a geoprobe. Mr. White noted that as long as the geoprobe would be on-site a water sample be taken as well. Also, old records should be requested from the Board of Health. Mr. Agovino noted that there is still no evidence of a problem but if the geoprobe were on-site, its use would be recommended to be maximized. Mr. Linnus requested a few minutes to discuss the request for further testing with his client. ACCEPTANCE OF RESOLUTIONS Mike Dudzinski Mr. Kennedy made a motion, seconded by Ms. Haines ROLL CALL: Mr. Jaghab yes Ms. Haines yes Mr. Valcheck yes Chairman Dietz yes The Driving Center Mr. Kennedy made a motion, seconded by Ms. Haines ROLL CALL: Mr. Sheridan yes Mr. Lovell yes Mr. Jaghab yes Ms. Haines- yes 8

9 Chairman Dietz yes Di Venti Mr. Lovell made a motion, seconded by Ms. Haines ROLL CALL Mr. Kennedy- yes Mr. Sheridan- yes Mr. Lovell- yes Mr. Jaghab- yes Ms. Haines- yes Chairman Dietz- yes Mahoney Mr. Lovell made a motion, seconded by Mr. Jaghab ROLL CALL Mr. Kennedy- yes Mr. Lovell- yes Mr. Sheridan- yes Mr. Jaghab- yes Chairman Dietz- yes Belvoir Barn Mr. Lovell made a motion, seconded by Mr. Kennedy ROLL CALL Mr. Kennedy- yes Mr. Sheridan- yes Mr. Lovell- yes Mr. Jaghab- yes Ms. Haines- yes There was a brief discussion regarding the next meeting. A need for the transcripts from the Richman Group was indicated. Mr. Anderson will contact the Attorney for the applicant. The Board discussed dates for a special hearing date to continue the Roth application. The Board agreed that February 27, 2008 was available. The applicant agreed. Chairman Dietz announced that the application will be carried to Wednesday, February 27 th. No further notice will be given. Mr. Linnus granted an extension through March 31, Mr. Agovino then noted no reason to justify going for additional sampling. Mr. Linnus then asked for Dr. Belnay to appear at the next meeting to discuss this issue. Chairman Dietz asked Mr. Ringelheim to contact Dr. Belnay to appear on February 27, ADJOURNMENT- 11:00 P.M. Submitted by, Robert Ringelheim 9

Also in attendance was Mark Anderson, Board Attorney, Jeffrey Perlman, Zoning Officer, William White, Board Engineer and Lucille Grozinski, CSR.

Also in attendance was Mark Anderson, Board Attorney, Jeffrey Perlman, Zoning Officer, William White, Board Engineer and Lucille Grozinski, CSR. Chairman Dietz called the Board of Adjustment Meeting of September 5, 2007 to order at 7:30 P.M. announcing that this meeting had been duly advertised according to Chapter 231, Open Public Meetings Act.