##VIDEO ID:wpd-83ib8B0## meeting of January 16th 2025 in accordance with the open public meetings act PL 1975 chapter 231 adequate notice of this regular meeting the board of adjustment of the township of Franklin has been provided board members applicant profession members of the public please speak directly into microphones so that our recording secretary can properly process minutes applicants and professionals please fill out the sheet on the table when you've completed your testimony uh oath of did we give the oath of office we have to swear at somebody did you do that already no I have not done that already I have I have to swear it some I have to swear at somebody I haven't sworn to anybody all day long so we're going to get it in looks like just Allen right raise your well after you're done sending your life away raise your right hand cu the other two on here Le your left hand on the table you learn me okay place your left hand on the table put your right hand up I state your name I Alan Rich do solemnly swear do Solly swear that I will support the Constitution that I will support the Constitution of the United States of the United States and the Constitution and the constitution of the state of New Jersey of the state of New Jersey and that I will bear true faith and Allegiance and I will bear true faith and allegiance to the same to the same and the government's established and the government's established in the united states in the United States and in this state and this state under the author authority of the people under the authority of the people and that I will faithfully and that I will faithfully and partially and partially and justly perform and justly perform all the duties all the duties of the office of the office a board of adjustment regular member a board of adjustment regular member according to the best of my abilities according to the best of my abilities so help me God so help me God congratulations congratulations okay welcome back again for another four years 48 years you had you had your chance but you moving to the discussion part of the agenda you want me to call roll call oh I guess we should have the roll call First Cheryl Bea here Richard pranic here vasim veros here Alan Rich yes Gary Rosenthal here Faraz Khan Michael Dy here kunala not here uh sub Hindu send asked to be excused uh Robert Thomas here uh now we can wait wait what about me did I he he didn't get sworn in maybe he's not really here I I went too fast sorry Robert Shephard yeah okay she's trying she's in a hurry she gotta be somewhere okay now we can go to the discussion uh section of the agenda data Bagan zba 1940 an extension of time Len Mr SCH you have to talk into the mic so make sure you turn it on no turn it on use the mic there you go it's red yeah if you push the button it'll turn green P the button and then you can and speak into it okay make yourself comfortable well thank you for accommodating me and hearing me in this beautiful evening I like Mr Rich you're not keeping the microphone by your mouth which is important please I like Mr Rich have been suffering from some sort of illness since Christmas so I'm happy to uh try to get home and get some sleep um I am representing D I am representing dat B I'm sorry I am here actually representing dawa Center tawi dawa Center that purchased um 630 South Middle bush from daada ban bnan and if I mess up the names I apologize I should know them by now but I still sometimes um get them wrong um a preliminary approval was was uh issued three years ago my client bought the property and did not have the um they didn't get the information they should have and unfortunately the nature of the transition transaction was that we didn't get more information and it turned out that the seller the previous developer had not obtained a lot of the approvals one including the canal um approval which was resulted in a need for new plans we've ass assembled the same team as was used last time and um right now the engineer is just about done um with the plans and in fact should be resubmitting them in the next couple weeks the problem is that because of the need for new plans and a lot of new work uh we ran out of time under the the primary site plan approval so I'm here tonight asking for a one-year extension of the plary site plan approval okay I get these mixed up too this is the cuz I didn't go visit this on an extension this is the U application that's adjacent to the Snyder form correct um now you're asking you're you're going to your client's going to submit new plans or amended plans we have actually submitted amended plans already yeah let me let me let let let me make it clear for for the record you're they're entitled if the board so chooses to give them an extension but when you're giving us the new plans it's a brand new application it's going to be a brand new use variance and it's going to be a brand new site plan because there's there's a change in the building you're not you're there's we don't amend use variances so you're entitled to this extension and it'll whatever that'll be but when you give us those revised plans you're going to have to give us the whole you know the the 15 sets of of traffic environmental it's it's a completely new application it'll have a a zba 25 number and you'll have to put all the same proofs on again it won't be we don't amend use variances it'll be a new use variance and I think Mark we've already submitted plans as you know you and I have been talking about this application for a year okay we've submitted an application we paid a lot of fees already um and we not only paid our escros we had to go back today and pay the escros from the previous applicant because they didn't even pay the rest gr um so that's all done I I don't want to argue tonight about the nuances I'm not sure Mitch totally agrees with what you're saying tonight he thinks an amended uh uh preliminary we we we we don't we don't have to argue because this stands on its own yeah this this this has right now is nothing to do with the new application you're entitled you're entitled to an extension of the previous application approval that's what we're asking for we want to keep it as it we we want to preserve any rights we have and then when the time comes we'll deal with Mark and everybody all the other minr people we've already had meetings with your people here um we'll we'll work it out we just want to preserve the rights we have we don't want to lose anything simply because we've had to go and get these other approvals okay any other questions I have one quick one you said preliminary it's preliminary and the final correct it's only preliminary so is that is that true Dominic they never got final yeah yes you did I I I think they I think Bob if I remember correctly he's correct that you gave him ply and they were going to come back that's that's my memory I'm not 100% sure but well counselor I've got the resolution and it says that the application was for pan final however got all my this is the beauty of predating me no it was only preliminary they applied for so all you're looking for is extinction of the previous preliminary approval correct that's all you're entitled to get you can you can ask for folks an Extinction of a preliminary approval without having received a final approval but the extinction only relates to the preliminary approval so if you want to protect a previously granted preliminary approval and then come back back and then either seek a final or a whole another situation as Mr Dominic indicated that's going to be a separate issue but the only thing before you right now is an Extinction on the previously granted preliminary approval okay I just wanted to make sure we were clear on on that no problem any other questions how much of an extension of time ask for one year okay I mean the the the statute talks about up to three we're asking for the statute talks about one up to three basically it's one up to a total of three ones but you don't get a three-year Extinction on the one that's why I'm asking for one right any mo anyone want to make a motion uh you want to also we have any other new any other members who have joined today as who have not have to be swor Mr Carz well I was waiting for everybody to stop talking so farz KH came in at 7:34 and Canal AIO came in at 7:38 and farz does need to be sworn in well well what well through him after we get taken care of this I gu War he feels the any other discussion or motion this is um I move that we Grant D Bagan vignan Institute uh the uh an extension of one year uh to uh for the preliminary approval granted in connection with zba 194 oh I I think we're granting the extension to the T dawa Center the D was the one that no longer wants the property no no it's it's actually to the one who doesn't because that the approval was to the one that no longer owns the property so you have to grant that extension because that was the application he's just representing his client who now owns the property and wants to preserve any rights he has with the prior approv of the previous approval all right sorry maker the motion to amend it to set a date of no later than January 16th 2026 uh so amended uh no later the uh applicant will take action no later than January 16th uh 2026 a second okay okay Cheryl beia yes Richard pranic yes Basim Bas Alan rich Gary Rosenthal yes Robert Shephard yes and chairman Thomas yes and then we'll pause momentarily and you can swear in our pass down to the o to thank you thank you feel better all right sir left hand on the table right hand raised I state your name I KH do solemnly swear do solemnly swear that I will support the Constitution that I will support the Constitution of the United States of the United States and of the state of New Jersey and of the state of New Jersey and that I will bear true faith and I will bear true faith and allegiance to the same and allegiance to the same and to the governments established and to the governments established in the united states in the United States and in this state and in this state under the authority of the people under the author of the people and that I will faithfully and I will Faithfully injust in justly impartially impartially and justly perform and justly perform all the duties of the office of all the duties of the office of and please do you Board of adjustment alternate number one member of the township of Franklin according to the best of my ability so help you God so help me God congratulations thank you okay welcome back Ward and do we have that all taken care of now we have swar everybody in we can swear in tonight we can move on to 13sx East Orange zba 2418 pre-existing non-conforming use in which the applicants requesting approval for a three family house at 264 jard Avenue Somerset block 300 lot 60 and 63 in the R15 Zone good evening ladies and gentlemen I apologize for leaving my I know I was just testing her been here forever I was testing her this is much better than that other thing good evening ladies and gentlemen uh my name is Jim stall St AHL Boris golden F vanolo hman and stall representing the applicant in connection with the confirmation or the decision that this is a valid three family use and I'll go into that I have two witnesses this young man on my left and David beckus be Kus who I think has appeared before this board before with regard to uh his expertise in developing the history of buildings I did want to apologize I left my tie at home so that the code of of the core that Mr Bernstein has established I I come up short no I I will indicate and the board has seen me here before without a TI I had I had to be in court today otherwise I wouldn't have one either uh uh uh Chris do I have uh jurisdiction do we have you've gotten our notice yes thank you very much uh notice has been served and this is an application to confirm the address of 264 Gerard Gard Avenue in Somerset as a three family uh building and home I would indicate don't push it not no no no no can't you get more sensitive microphon I teing all right uh you I feel bad I think I'm yelling when I get too close my two witnesses are of course the applicant who will testify uh as to his not just his understanding some of the information he has obtained and Mr beckus has a report that has been submitted to the board and he will uh testify as to the contents of that report I do not to a Q&A as you know I will just get him qualified and and start him uh Jared why don't you stand and raise your right hand is a testimony you're about to give the truth the whole truth and nothing but the truth so help you God please uh state your name spell your last name for the record in your address use this one no yes yes yes that's a good ide we're very we're very informal including is the ties yeah you didn't wear a tie either you know Jared Sutton SU tto n on behalf of 13 ess6 e orange LLC I thank you uh Jared you are the uh sole member of the LLC 13 ess6 uh which owns the property at 264 Gerard am I correct yes and when did you acquire the property um I acquired it in October of 2023 and uh what is your business generally what do you do for a living or a hobby um I purchased real estate to either improve it and resell it or to hold it as rental properties and did you have occasion then to buy this piece of property yes it did when I say this we all know it's third it's 264 J was this property listed by a broker whereupon there was a sign on the property uh the property was listed on MLS and that's where I found out about it and when you found out about it do you have occasion to speak with the owner of the property uh the owner in this case happened to be the real estate EST state agent representing the seller and that was where I spoke with her directly on the property and did you uh examine or inspect the property prior to acquiring it I did and um at the time of inspecting it it was set up as a three family and did you have an occasion to strike that when you say it was set up as a three family can you describe for us what you mean by that uh yes so the property consists of a second floor first floor and a basement all three floors were set up as individual Apartments separate from each other other and do you know how many tenants were in or using the building at the time you spoke with the seller um at the time that I spoke with the seller there were currently two tenants on the top floor and on the first floor but uh I actually lived on the street I'll get i'll get to that you're too sorry no no your number there was one on the first floor one on the second floor am I correct yes for a total of two two tenants yes okay um and um and you did have a discussion what what was her name the uh owner uh Belinda Belinda and did you have a conversation with Belinda uh yes I did and did you in fact live on Gerard Avenue uh yes I did and how long were you living on Gerard Avenue from 2005 to 2019 and during that time did you live with your family or were you married or what uh I lived with uh my family which consid of my wife and my two kids all right uh so so that was your like your first home or in that area yes okay uh and uh during that time did you make any personal observations of the house uh yes so the time that I had lived on the street um I recognized that there were multiple tenants in the property do you have can you advise us right now to the best of your recollection how many tenants or occupants were in 264 Gerard uh it appeared that there were three three tenants in the property and when you say appeared that was based upon your visual observation am I correct correct and you would see people coming and going is that correct correct and you Liv there for was it giv me you the dates again that you were living there uh I believe May of 2005 through May of 2019 okay so that's my arithmetic is that's about 14 years is that correct correct uh and um when you spoke with Belinda did you have an occasion to talk to her about its prior history prior to uh your discussion with her I did she said that she had lived in the property ever since she was a child and at the time it was a three family at the time that her family moved into it and had been up until uh when she was selling it now sometimes this is a dangerous question but it's not going to be one now you know asking a woman's age were you able to estimate estimate either her her age or how long she had lived uh I wasn't asking that question no no know you're smart no but uh was there any information that you could glean from the conversation that indicated how many years she had been on the Block she looked in maybe 60s high 50s something along those lines so and she lived there and we when did she say she began to live there sometime in the 60s if I'm okay and uh she indicated to you that during that time period it was a three family unit is that correct yes um now you understand that if this board were to Grant you approval uh you're going to have to obviously renovate that house is that correct correct and I plan on improving it substantially and you have already obtained uh not assuming an approval but you've already gotten some architectural plans with regard to refurbishing and renovating the building am I correct correct uh and those are consistent with your understanding of what was there and the structure of the building is that correct correct and uh you also understand uh that the board if it approves the use is only approving the three family if they approve it you will still have to obtain uh all necessary permitting from the Franklin Township Building Department uh including any upgrades that are would be required in connection with a handicap and any other requirements of the of of the building department you understand that correct because you understand that not withstanding its use over all these years codes have changed especially in terms of fire protection and uh handicap use accessibility is that correct correct all right that's all I have uh Mr chairman any questions I have a question so for three family from a definition standpoint what what are you saying is represents the three families the three kitchens three three electrical systems you you got AE I have I have Mr beckus here be K us and that's his expertise and he's going to testify I have a question so currently how many tenants are at the property uh currently there are no tenants in the property currently I see okay thank and you bought this house through a a listing a real estate agent or yes the property was listed it was listed do you have a copy of the listing did was it a three family was it listed as a three family it was listed as a multi-unit building and from the listing this is going back back sometime so I don't remember exactly but it was marketed as a multif family building small MH okay and what was your job again I'm sorry what what do you do for living uh I purchased properties to renovate for either hold or resale have you ever been through anything like this before uh a couple times yes couple times okay all right anyone else I have a what he said May me ask a question you mean you've had a a number of these cases where you had a property that uh had more units in it than uh was permitted under the zoning in the area so my understanding of this question is have I gone through uh the zoning process itself specific to this particular case no I haven't had where I had to change the usage or the number of units but I have come before the okay anyone else Mr Sutton do you recall when you acquired excuse me did you recall when you acquired the property uh October of 2023 the exact day I can check that for you does uh Mr stall have the deed in his in his presence you have the copy of the deed yes I think it may have been provided to it was I just want you to show it to your client I I keep the other paper you just moved out as well I morning counselor would you like mine for a minute if you promise to give it back sure sorry to make you get up that's Mr I'll wait Mr suon I have a deed that was we we furnished to the township and Mr Bernstein the board attorney has given to me and I think he may want to ask you some questions first of all is this the deed it is a dated October 2 2023 uh signed or prepared by a Jennifer King Butler Esq and to be returned to the Whitman Law Group dated 929 2023 and delivered on October 2 2023 do you recall that document yes Mr Sutton as part of the acquisition of this property did either you or Miss Baker ask for a certificate of smoke alarm carbon monoxide alarm and portable fire extinguisher compliance yes which one you or her I did uh do you happen to have a copy of that counselor uh are we talking about dated September 25 2023 yes is that the application or the certificate that you just provided what I am going to show him pursuant to your request is a 92523 application for certificate of smoke alarm carbon monoxide and portable fire extinguisher compliance as I say dated September 25 2023 Mr Sutton would you take a look at the document that Mr stall has just shown you MH about 2third of the way down the document there appears to be a signature is that your signature yes can you take a look at the document and see what the application the number of families in the dwelling the application indicates that the township is be inspecting uh it says two and did you receive a certificate of smoke alarm carbon monoxide alarm and portable fire extinguisher compliance from the township uh yes and do you recall what number of dwelling units was circled on the certificate two two so let me ask the next question the app the neither the application nor the certif certificate indicates a three family house is that correct M oh I'm sorry that was a question yes so it's your deter it's your request to the board or your testimony to the board that your belief that this is a three family dwelling is based on conversation or conversation you had with Miss Baker is that correct um well it was predicated based on the previous usage of it uh both conveyed by her and again from what I witnessed and did you during the 14 years you lived on the street count the number of tenants going in and out of the property to determine there was a three family dwelling um I witnessed multiple people coming in and out of the property but no idea whether or not any or all of them were 10 correct that is true I have no further question Mr chair um Jared with regard to this item uh that we call the application uh who you prepared it uh yes and uh there inspections it says a 1-1 family and number two 2-2 family three townhouse four condo five one room rental is that correct correct is there any place to have a multif family other than two family for example a three family no and when you prepared this uh how many people were living in the house two when you bought the house when I bought the house or when I saw the property up until when I bought the house how many two tenants there there were two tenants and did you get a I'm looking for it did you get a tax card from the township prior to your purchase of the property yes and did that how many un did that tax card from and I'm looking for it now how many uh units did the tax card indicate in the building it identified three it identified the property as a three family I don't believe I don't believe correctly you don't have that Mr burnt that's what I I just received call no you you will not and do not have that and I'm looking for it right now as we speak I received it uh late in the game so to speak how late in the game this month I was hoping late in the game would be today but you got it earlier than today maybe you know I'll tell you when as soon as I oh there it is I'm sorry and I will give it to you Mr Bernstein uh oh I received it this looks like it was in June I thought it was I thought June would became January you remember when you provided this to me uh June 25th 2024 and I'm going to give this to Mr Bernstein in a moment uh can you tell me because your eyes are better than mine uh this is a card a colored tax card can you advise me as to any dates that are on that as a date of issuance for this particular card June 26 2024 all right you have June 26 2024 do you know why it took so long either for you to obtain this or why it took so long for the township to provide it to you unfortunately I misplaced the first one that I got back around when I purchased it let me I'd like I'm G to provide this as uh A1 I give you back the deed no you back the deedon I'm not giving you back the tax card SS even um no no give you back the tax card um Mr Sutton did you have a copy of what we've marked as A1 or a similar copy honor about September 25th of 2023 yes uh so let me ask the obvious question why did you apply for a situation for a two- family dwelling if according to you you were advised or believed that the tax record show a three bedroom why did I mark it on the form you don't know the question was yes the answer is exactly this why you mark on the form that it was a two family dwelling when it's your contention that the Town ship had at least the tax office which by the way has no authority to bind one way or the other as to how many units there are uh indicated three on their tax card as silly as it may be there wasn't a space for to Circle three family did you point that out to uh the fire prevention department at the time you recall um I'm looking at this tax card and granted the only part the Reliance you have on the property record card is where it says units three at the top of the card I'm sorry is your Reliance on the property record card as an indication that this is a three bedroom with three unit facility is that when it's the number is three next to units at the top of the property record card yes and the breakdown of the bedroom and kitchen count one other question I'm going to mark this is A1 and I'm going to pass it to M access to the basement apartment is how there is a front egress and a rear egress ground level or through the other apartment ground level we permit ground level Apartments yes okay in that in that zone yeah I mean as long as they meet as long as they meet the applicable building codes egress codes but from a zon perspective yes okay all right just for the purpose of the record I've given the board the property record card marked at A1 thank you Mr chairman anybody else I I have a a question th this card isn't uh from 1953 is it isn't it a card from from 2020 is that the is that how new the or how old the card is not 100% Mr sheph can look at it I mean sure he he doesn't have it why you go sure I was a suggestion you were not accurate but he was he can't answer the question with that I appreciate that okay I have a question uh in in that report that we got in the TRC report for the uh fire the smoke alarm application uh it says there are two kitchens in the unit so but you said it's three unit building but with only two kitchens I think you'll hear from if you can Mr Becka is going to testify Beck and he uh I believe he's going to indicate based on his report that cabinets were taken out of one of the kitchens and the meter was taken but he I think he can explain all that to you when he gets up do you see uh Jared with the question do you that's what I asked you before do we know the date of of the issuance of that card and Mr berstein I'm not relying on the card as support for a three family uh property it was just an indication that there was something so I agree with you that the tax office cannot declare uh the number of units permitted by ordinance no but you are introducing for the purpose of showing another indication of where that supports your client I I was going to say in connection with all the other testimony that should be considered is there any place that shows in response to Mr Shepard's question as to the date of issuance of the tax card and if you can't find it that's uh that's understandable I don't see it on the card unless I'm missing it all right okay any others I yeah I want to go over something with you you when did you purchase the property when did I de excuse me October 2023 23 yes okay and um at the time you purchased it um how many people how many tenants did they were in the build building at the time there were two okay and which units did they occupy the second floor and the first floor okay but not the not the basement apartment correct okay and um and now uh more than a year later uh how many tenants are in the building now there are no tenants in the building right now what happened what changed um at the time once I purchased the property the tenants mve moved out of the property and I didn't continue uh keeping the property occupied at that point why not uh cuz my intent was to improve on the property okay I just have it's not really a question but for purposes of determining or getting getting approved for the three units the question is really not how it is being used today but did the three units exist prior to the zoning right fundamentally that's the question not how it's being used today but did that was it an existence in that form and did it continue to be used as that prior to the zoning and then after the zoning took effect would you agree the question is directed to me I guess yes the applicant yes okay I just wanted to clarify because we've been there's been a lot of questions about the number of occupants now or a year ago but ultimately did it exist in that form prior to the zoning law that's really the question correct okay I think hopefully Mr Mr beckus will satisfy some of your questions any others I have one question I'm not sure who to direct this to um how long of a time uh would if if that third family moved out how long would you have to reoccupy it before you forfeit those rights to have a third unit well that would be Mr Bernstein and I would have I assume a cqu or a discussion I don't think there's an abandoned if in fact we demonstrated that it had been a three family and if in fact it was only used as a two family in the last several years after 2019 uh or when the uh the current not the current but this gentleman's seller decided not to to rent I mean let's say I have a an apartment building and I want to leave one unit empty because I want to store it with junk and extra beds and mattresses and I don't use it then the question is is it abandoned and I only now I drop off a unit because I haven't used it for residential purposes I mean I'm I'm not I'm just playing a game intellectually sure uh I don't know what Mr Bernstein's position is but I would take the position that once it's vested as a three family uh building I don't think it's not like a race Jud toot issue I think we have the right or I'm sorry a destruction issue where the house is burned down and you know or a restaurant and how long do I have to rebuild before I lose the rights and that requires as Mr Bernstein knows an intent to abandonment and an abandonment but I'm not talking to you know for Mr Bernstein he does pretty well on his own okay thank you I was just a little curious and was hoping Mr beas could address that someone would opinion be the same let's say if the uh house was not used as a as a three family house and it was used as a two family two unit house but then uh code and building regulations change such that it might not be suitable for a three family house would it still have that status why do you always ask a good question questions Mr Thomas yet I will have I will agree with you to the extent well I I think I'm I'm not grandfather for everything but this is like site plan let us assume that there's not a fire safety issue with the use of the basement uh and that there was an F change or something and the and the town said you can't use it there would have to be a real reason uh to deny me that use uh it normally would be fire Health uh if the board just not the board if the town just changed the F requirements the how many bedrooms are allowed uh something of that nature uh I thought you were going to ask me what if the house burned down but that's a different question okay but if if it were empty your client might not have deemed it necessary to have a a building code inspection or anything take place place that would deem it appropriate to be a three unit as opposed to a two unit well you have to have one now and and he has to comply with all the codes to permit if if you were to permited A3 family including as Mr Bernstein had alluded to I assume the the the basement the ground level usually the ordinance are more than 50% of the window area is above grade then you know you can use the basement for residential purposes so long as there's proper Ingress and egress egress um but I don't think you lose that right unless something pretty important comes along as I say fire safety Health and Welfare Etc he thank you do you have any actually have a question of Mr Dominic if you can answer the question this is a pre-existing nonconforming use determination correct yes what was the Zone in question is R15 single family right how long has The Zone been R15 oh God since probably since probably since we originally zoned it or short or shortly afterwards which would have been probably in the late 50s early 60s which means in order to to in order to prove that this is a pre-existing non-conforming use the applicant not the app the applicant would have to show that the building in question was being used as a three family dwelling prior to the change of zoning in the late 50s right you know Mr bernon how difficult that level of proof is today historically however it's the underlying requirement for a pre-existing non-conforming use designation is that the argument sensibly the the pre-existing nonconform forming use is a use that existed prior to the change in zoning and was pre-existing and was allowed and when the zoning changed the residence or the building Etc was for lack of a better phrase grandfathered in to as long as it was continuing to be used in a similar manner then you were entitled to all of the including God forbid if it burned down Etc the proof however is that in order to get a pre-existing non-conforming use designation you have to prove and I'm not saying your client is the person capable and I'm not so sure your expert report necessarily addresses it either is that the zoning had to have been the the residence had to have been a three Family Residence at the time the zoning changed that allowed for only single family dwellings in the zone and I agree with you but the two issues that we have to the two issues that we have to confront is that uh the eminent uh economic development director among his other titles has candidly indicated that he does not know when the ordinance went into effect uh we would have to do a search of that and I don't know whether you have I mean I've done these before and it becomes a nightmare to Trump try and find out ordinance States many of which have been destroyed or subject to fires Etc well I I I can tell you that that the that property has never been anything else besides a single family Zone and so I would say that unless you can show differently you have to you would have to prove that prior to whatever the zoning 58 or 57 you'd have to prove it existed prior because we don't have any record unless you can show us affirmatively that it was something else at a at a different date well I I think I let's put it this way I I don't miss through on the board if the board has any more questions of Mr Sutton it may now be time for the expert to provide us with his expert opinion but I would point out Mr stall and maybe I missed it I look forward to his testimony there is nothing in this report that in any way shape or form discusses when this became a pre-existing non-conforming use it appears to be an attempt my characterization of working backwards which is I think I found this and I think I found that therefore it must have been a three family Zone but I'll leave that to you understand any other questions okay David unless anybody from the public wishes I was going to do that to test to test the marriage raise your right hand me testimony you're about to give the truth the whole truth and nothing but the truth to help you God yes I do you can state your name spelling your last name please David beas be Kus Mr beas can you indicate to the board by whom you were employed what your qualifications are for purposes of being uh qualified as an expert witness um I'm an expert witness both in construction litigation and cases similar to this I've been uh accepted as an expert to determining ages of buildings uh several times in front of this board piscato Woodbridge um what are your qualifications not as Li what is your LIC my my the license I have is a building inspector license my experience is uh in renovating homes uh primarily New Brun area for since the uh mid 80s and I have reviewed and inspected and rebuilt myself U hundreds of homes of my own and others uh I have written many of these reports and again repeated that I've been accepted I have uh you know vast experience in renovating buildings and and determining their age is your license still in full force and effect yes it is and are have you been employed by any municipalities are governmental entities no that's precluded by law as an expert witness I would not be able to oh had you before no I have not okay so your your profession and your expertise is limited to what you're going to present tonight and for what you have been qualified by this board and other boards is that correct yes and how many years have you been doing this I started my own construction business in 1984 I started working in construction the day I got out of high school in 1979 and how many years have you been testifying uh my first test my first testified I think in 2003 and how many how many uh presentations you make in a uh monthly basis roughly uh well planning boards maybe half a dozen as as a construction expert um I've been accepted in federal court of multiple Superior Courts in New Jersey uh probably about 20 times and that's for construction litigation that's for construction litigation yes right I would again submit him as an expert in the area sounds fine okay is your is your mic on Mr speak is just to make sure the green the green light is on just that's it like that thank you all right Mr Becket um you were engaged by Mr Sutton to determine the age and the number of units that has had in your opinion been historically utilized on the site is that a fair question yes it is and you prepared a report which was U for 264 Gerard Avenue dated February 28th of 2024 is that correct that's correct now I don't want you to read the report you can use the report for any purpose you deem necessary but I'd like you to advise this board as to what your findings conclusions and opinions are as to this house um based on as Mr burnsy stated I found certain things and I uh used my knowledge and the ability to research things to determine when this house was built and um what construction and how many units it had uh prior to 1958 was when which is when the um zoning orces were uh uh created and in this area as we all know was a single family uh uh requirement um this house is clearly and uh a three family house and was built as a three Family House well let me just jump in on one thing here uh and then you I think you should go through it sure you've indicated on pay you you indicate well I'll ask the question did you obtain information uh from records of the municipality as the date of construction of 264 Gerard Avenue yes where did you obtain that from uh probably Parcels MJ is usually where my goto place what is Parcels MJ it's a website that has a uh listing of all the public records of of all the towns and homes in the state of New Jersey and did you get a data card from that organization I got the information I showed in the report which showed that the house was originally constructed in 1953 and do you have any idea as to when the current zoning the R15 was was uh implemented 1958 and how do you know that um when I believe I was told that by multiple attorneys in my course of doing this business I think it was just mentioned before by the gentleman over there uh 57 or 58 I think it's pretty clear that uh the zoning in uh Franklin was created in 1958 for this area all go ahead continue your test I'm going through the all right um I went obviously I went to this we need a more like I want to look around um I went to the site obviously then took you know multiple pictures and reviewed it I will go through it briefly if I miss anything please let me know I believe I believe all of you have a copy of this report so this is um three separate levels each level um had a kitchen I'm going to go on the first page each um I'm sorry uh the basement had actually two separate entrances that were solely for the basement if you're referring to pages in your report Mr beckus I apologize if I also mispronounce your name it's beas but that's okay just don't call me late to dinner another feeling um could you indicate to the board what pages you're referring to within your report sure we're going to start with page four of my report I don't believe we have this report we don't have that report um put this way that's above my pay grade the Chairman's looking at it the TRC rep yeah yeah have it on the computer computer so I don't know we don't have it we don't have that report I hate we just have the TRC we have an active photo copy or we can it's in the TRC report it's on the website oh yeah it's on that's why sorry I'm thinking why you guys don't have it we don't give out paper anymore it's on the website um if you look on um materials right can I make one request while we're going can I just get the a glass and a glass of water no than I don't want is that 20 bucks but I can't get from here you didn't get here from this link just you just Google right you didn't get here from I knew those fancy laptops are gonna be used for something why I still like paper you'll notice everybody has a fancy laptop except you because I like the paper I don't know how I got it but I don't want to go to Frankin are we still are we still we still record are we still recording Christine down yeah we are still recording but if you go up above this is materials that's what I clicked on that's when it it was in can I see the tax card it was in the TRC find out who's got the tax card here okay your answer where the tax card is okay so every time Mark puts everything on the website so you go on that's A1 he wants to review it I want it back obviously go go back to the yep um go to the TRC and then it's the packet yeah you want to take a couple recess while we try everybody does everybody else found found it so we're still we're down a couple Mr Sutton un can come up for a second I just have a curious question related to the application but not related to anything in regarding this discussion I can't resist asking the question 13 so what is it S6 e staring LLC I took a look at it and I got confused because my office represents e staring both planning and zoning and I thought for a second it was in the wrong town did everybody get it reason just sounded nice thank that was my only question it looks like we're all set up here so we can everybody yeah thank you Mrs suton for problem okay yeah everybody's got everybody's on four page four okay we're back we're back right here um everyone has page four we're on page four the house as you can see has an upper entrance and underneath the front stairs you could see um which the second picture shows is the entrance to the basement underneath the upper entrance the upper entrance also has a separate area that goes to the third floor um I'm not going to read the whole thing but what I saw there was indicative of a original construction it wasn't something that was added you know in 1985 all right page F uh page five uh here's a couple interesting things and if you have time you could read it first the uh siding is original it's all plaster it wasn't changed over the years if you look at the basement windows they're all three large windows in the 1950s 1960s 1970s 1980s to this day basements typically have small Windows when you see large Windows like this and multiple windows um that's indicating that that was an intent as a three as a usable or occupiable space uh kind of unusual particularly for the 50s and you see the same issue on the upper Dormer where there's two large uh Windows uh everything on this page shows an intent for three occupied floors on those on the side windows uh let's see as I write in my report there's no indications because it was a plaster siding that was has been painted over the years and the windows themselves have been replaced you know there's vinyl windows in there now but the frames and the plaster very much appears to be from original construction okay we can go to page six um just what I just stated it's original constru page six it's just another closer picture of one of the windows and again this is the basement window it's a fairly large window indicating a tent for occupancy um again if you go back to the 50s 60s or 70s basement windows typically are very small and again in the rear there's two separate entrances one for the basement which now has two separate entrances to it that's again very unusual uh even in newer Construction to have two separate you know grade level entrances to a basement typically as you walk in the front door and you walk down into your basement you don't have a front and back door to your basement so this basement it's it's pretty obvious it was intent for it was an intention for occupancy uh then the same thing in the back uh obviously the handicap ramp was added at a much later date for someone who you know was living there and needed that this is Page seven correct I'm on page seven I'm sorry yes no problem and then again we have another entrance to the you know first where we're calling the uh first floor on that in that um lid there and I also point out that there's a small window next to the basement entrance um that would be typical of a bathroom window uh as a basement not only are the windows abnormally large there's multiple windows uh it's it's it's again I'm going to be repetitive but it indicates an intent for occupancy uh p p on page eight um very obviously everyone know it's very common for homes to be renovated multiple times over the years if they're you know built in 1953 uh I was only able to find one door one original door because one of the things I do in in this area of my expertise is I look for door knobs hinges uh type of mill work all different things to indicate how old the house was built you know we already have the tax record saying it was built in 1953 uh this is actually just a closet door and this type of construction this door this door knob uh the mortise lock was all indicated of that type of construction at that time for the record just so whoever uh morce that's uh m o m o r t i s e it's a type of lock yeah and it's in older houses isn't that correct well you can still buy them but they're very expensive compared to a the lock that you get at Home Depot uh here's where we're going to get into the meat and potatoes of this uh the first picture on page nine uh shows where the kitchen was um on the in the basement level uh the cabinets have been removed has has already been testified to and they may have been removed when there was two families there but obviously was a kitchen there and I should have put this in the report and I did not but you can see that that uh piping is Galvanized uh which is typical of older homes so so again we have strong evidence that this house or this particular spot was used as a kitchen for many years but but gavit pipe wasn't just used in the 50s was it oh it's still used today illegally but um uh uh it was it was common we don't have we have to go what the what the indications are here um galvaniz pipe for the most part disappeared as as a as a drain in the 60s it's it's gone do something can you can you find one yes can you find someone in Franklin who probably used the gavanized pipee three weeks ago probably I'm not saying they got it inspected so I'm not going to say it's impossible what I'm doing here is using probable it's it's it's it's very probable that that pipe has been there for a long time well if someone were to inspect that if our plumbing inspector in Franklin were to inspect something something today would he or she pass the G this this type of piping no it'd have to be copper is that well it could be PVC ABS it could be different things lots of stuff right it could also be cast on I have some other questions the I can't help but notice that the looks like the sink and whatever else was there looks like everything's gone that room's been stripped of everything except what looks like maybe a hot water heating radiator um and did you find out from from [Music] anyone um when uh when the all those the cabinets uh and the uh the sink and all that was removed from the building I made no effort have no idea exactly what time uh this the sink or the cabinets were removed uh you have previous testimony that the house was occupied as a three family up to fairly recently uh I will add to my testimony here not mention in the report the fact that there's a radiator there also indicates that this is was intended and used as a three family and for occupancy very few basement to this day are even are not heated so this had multiple radiators in this in this unit the radiators are obviously you know quite old also uh uh so you know the exact date that the cabinets are removed I don't know I think the question here before the board is was this a three family prior to 1958 um I'm going to say yes um you know pretty a question before you go on sure I didn't even think of it the radiator you say radiator I say radiator I grew up with them tomato tomato but this was it usual or is it usual to to heat a basement with the radiator no not unheard of but unusual all right so you're unless you're going to occupy it as a living space okay go ahead um the next picture down on page nine is just the first floor you know the kitchen's still there you can see the corner of the the sink and you can see the r you can see the radiator you can see the range uh third floor cabinets uh these were metal cabinets on the third floor so they haven't been replaced in many years and metal cabinets are typical 30s 40s 50s uh little bit in the 60s unless you're doing a garage now you'll see you know all the modern garage metal cabinets now but not in not in kitchens uh so again clearly the evidence to me is very clear that this was a three family for many years prior to 1958 before you move on quick question on the bottom picture on page nine lovely picture of what the kitchen may have looked like at in the basement lovely picture of what the first floor kitchen apparently looked like when you took the picture query why no picture of the upstairs Kitchen in anything other than cabinets I don't recall it might have been clipped off I I I don't know we have testimony that that floor was occupied I understand I understand we had testimony I'm asking you in your expert capacity did you see a kitchen on what I believe is the second floor not the third simp similar to either picture the middle picture on page n or the top picture on page n uh I saw no kitchen cabinets on the top picture so I have no idea what was there or the rest of the kitchen you took pictures of cabinets was there were stove was there a sink was there a refrigerator was there anything that would in any way shape or form indicate that the room was being used as a kitchen yes there's the cabinets there's there's the towel paper holder you could see in it which uh uh was you know probably right next to the sink that piece of plastic my question is forget the picture when you did your inspection what did you find in that kitchen I found I found um I found a kitchen with a kitchen sink I found the cabinets and I found what was very apparent to me a a kitchen I believe I also found a bathroom well did you find because I think this is Mr burnin's question you said third floor cabinets I think you mean second because I'm sorry so that should have been the second I just want the record to be did you find an oven a refrigerator or a sink on the second floor in the second floor kitchen you have a Rec I don't remember if the refrigerator or the stove was there I don't remember right now if you had found one would you have taken a picture and put it on that page similar to you did the other two uh at this point uh I of course I would have but um when you went there you went there in uh last honor about February of 2024 is that correct yes was anybody living in the house no the house was unoccupied the house was unoccupied do you know whether or not the last individuals occupying this home took out refrigerators an oven sinks or other accessories usually found in a in a kitchen I I don't know okay so I I have a question so you're defining a kitchen if if an area has a sink in cabinets that's your definition of a kitchen um I mean your testimony is that that's what was there you didn't find any evidence and there was no stove or oven or or or refrigerator so your definition of a kitchen is a sink and cabinets no that I'm sorry Vince I I don't think that's a clear I don't think that's a a with respect an appropriate question let me ask you what is a kitchen that that's how would you define it what is required by code today to have in a kitchen to get a CO well you need just for a single kitchen you need a you need a sink mostly and that's probably about it and you need an oven I don't know if that's actually I'll be honest I'd have to look that up if you absolutely need an oven to consider it a kitchen there's some people who don't want to use ovens I mean you know how about a refrigerator these things that you are that you would typically see in a kitchen I don't think a refrigerator is required by the code to be uh in a kitchen I I guess my what my point is is that from a purely zoning perspective if you put cabinets in a sink some place from a zoning perspective that's not a kitchen I mean that's that's because there's no cooking so it doesn't qual we would allow we only allow one Kitchen in a single family home and if you in your basement wanted to put a sink and cabinets that does not qualify from a zoning perspective as a kitchen it's a little bit different when you're talking about what you need for a CO and everything else from a building SP I just want to make that clear to the board so I think the underlying question here is what was the intention prior to 1958 of the occupancy and andless andless with all due respect you can glean that that the occupant back in 1950 fill in the blank intended this to be I think you got a lot of trouble testifying what the occupant may have intended I I think I think we should go to page 10 before you you may talk go further I'm just saying for purposes of the record I think we should I think we should go to page you go ahead do your what you want to do thank you um the most compelling evidence uh that this was intended as a three family unit is the three electric meters in the basement um they are dated to 1955 or prior in common use at that time um it's there's you know there's three surfaces there's three meters there's three electric bills and these meters are clearly pre1 1960 to me that is compelling evidence that this is a three family the intent was a three family the person who built it intended it to be a three family and it was used as a three family go to your next page page 11 is just more uh proof of well tell tell us what it is well page three shows the three services um the they are Square D EXO series the last time the exos were used in production uh or um sold was 1955 this house was built in 1953 this lines up if if this is not acceptable evidence I'm um um I'm not sure what else would be well just uh the disconnect box below is a is which I'm showing below is is a 30 amp Square D um again as typical of the early 1950s uh this is what you see uh all this wiring in in where where is that this is in the basement no no no I see cat number 90211 and an on and an off and you called it a Square D something is that on each of the service boxes uh it's well there was only two covers it's on two of them I'm assuming the third one was the same so each of the boxes had a similar plate and uh your testimony is that that is uh evidence that it was in the early 50s as that was was I mean 30 amps is not standard now no no it wasn't standard in the 60s um so you know uh uh I've done a number of these uh cases here in other uh uh boards and um and these three electric boxes despite the some of the objections U made by I don't think anyone is objecting sir I think the issue is the determination that a plus b equals anything other than c you don't know the intended who built the the house because unless you can tell me you were there talk to them you don't know I can no no no no see see you're putting no go ahead you're not correct uh I can infer strongly that this building was intended as a three- family building because there are three pre1 1958 electric boxes in there why would any one in 1953 put three electric boxes in a house unless they intended three separate entities to be built for it well was I there did I talk to the guy no but I can infer that well you're inferring it let me ask question did you as part of your investigation come to the Franklin Township minicipal building and asked to review the construction plans for this house I am clearly available that the 1953 construction plans are not available in the Franklin Township and if I and if they were no one would be able to find them so your testimony is let me let me make sure for the purposes of the record page two pardon me without the glasses page three the data that you put for four on page three as to 264 Gerard Avenue was acquired by you going on a website which indicates that they are the holders of paperwork public records of the municipal of municipalities correct yes regarding construction permits etc for the properties correct there were no permits in 1953 well construction and material what did you find literally on that website I found the the evidence that I uh put on this piece of paper that showed the house was built in 1953 and that was the sole purpose of my inquiry into that I think the public records have already been established that the house was built in 1953 prior to my testimony can I get a little more water yes I give you permission thank you I I also Mr ver I want to because I don't do summations because I rely on the board a good board who reads the documents and understands it but this is not a with respect it's not proof Beyond a reasonal doubt it's more likely it's it's it's a prop it's a prop took it no you took the that was my next sentence it's the preponderance of the credible evidence uh and you know uh reasonable men and women can differ we know the drill uh and you the board has to decide has enough been given here recognizing the age of the records and record keeping if whether we've satisfied our birth I have a question you've testified as to the Ingress and egress of the basement unit and the first floor unit yes where's the Ingress and egress to the second floor it's a comment when you walk to the front door you go One Direction for the first floor and you go up the stairs to the second floor and there was a door at the top of the second floor is there an egress or is it the same well it's a set of stairs as an egress well my point is as you pointed out I think on page [Music] seven of your report that the rear of the home had two entrances and the front of the home had two entrances correct so the entrance into the upstairs Dormer I think is Mr Sutton testified to characterize it as is an interior entrance and an interior it's an it's all interior that is correct thank you that's not uncommon I I just for the purposes of completion the record I wanted you are correct thank you any questions I have I have a question but I've already determined that he is not able to answer the question and that is um when um uh first of all uh what was up on the the second floor in addition to some cabinets the other question that I had is uh when was the uh kitchen on the first floor remove or basement was it the basement that was removed basement kitchen was removed I would like to know when the basement kitchen was removed and what existed on the third floor in terms of a kitchen um other than some cabinets I don't know when the um uh basement cabinets were removed we know that we know that you don't know that cuz I asked that question so so I think it's your client really is the only one that could Mr stall could provide that information and and he may not know but I think I would like to at least know whether he knows or not well I'm going to bring let me ask a let me ask a question if I may because you you didn't get to it uh Mr beas on your left that's page 12 of 12 uh how many bathrooms were there in this house three and do you recall where they were located uh not exactly first second and third floor well how about the basement well I'm sorry basement first and second floor so each floor had a bathroom yes all right and um okay thank you you're in the construction business are you not sir yes I am if I put a b if I have a twostory house with a basement and I put a base a bathroom in the basement on the first floor and the second floor does that make this my house a three family house no of course not okay thank you you know I don't Mr stall are you going to ask your client the questions I am going to bring him right here he's already brought up I just want to finish okay yeah I you know I think you know I know it's it's uh not possible to prove it but of course it's possible to infer it and uh you know it seems like the basement front entrance back entrance big Windows the three um you know the the three meters and everything you know I think the fact that the basement was a separate unit of you know seems believable to me um and I guess along with that the fact that when he purchased the house there were two separate tenants living in the first floor and the second floor you know separately seems to make sense that if if two separate families were living there then that and and that can be proven I guess because that was more recent maybe a little more easily so uh I guess we're saying that the first and the second floor like the second floor did not have a separate entrance whoever had who which family was living on the second floor had to go in through the same entrance as the family that was living in the first floor I think it was a common entrance was it a common it was a common entrance but separate there's still separate doors they they they didn't um the people on the third floor had their own door to get into it so you could go to the third floor without into the living area second floor it was it wasn't built like a single family where you walk up the stairs and go to the bedrooms there was a door separating the first from the second it was interior which again is extremely common in in in two family homes okay it's a common in apartments you walk through an apartment and then you know you go to you down a corridor and you go to different doors to get in individual units and that was in essence what we had here I mean the typically in these cases the basement's always the issue you know the basement is always what's people illegally occupy basements are where you know everybody goes and you find 10 beds and all that kind of stuff uh the not just one separate entrance to the basement this house had two yeah yeah okay so that's just what I wanted to understand that it was clear that the first and the second floor were two separate units so the question was in the basement and yes you are correct did did did you do an open request for the uh the building department records I did not I know we always do I'm just cuz nor normally you do because sometimes that helps you show that in 19 70 you got a permit in the basement for for that that's that's why I asked to see if there's anything that would assist this board yeah we always do that let me look oh one one question though that I might have is when was the kitchen ripped out of the basement that we don't know I don't I don't know I'm going to ask J when I put him back I'm going to have a couple of preliminary questions and then I know Mr Shephard has has a question okay it's the same question that he's got yeah that was the question I have yeah to me that eliminates a it's not a three family unless there was some proof that there's an intention you know that that how long was the kitchen ripped out how how long can we go back to when it was actually is it possible to go back and determine when there are actually three units being lived in Mr Thomas he's testified he being Mr be is that based upon his based upon his observations it was built as a three three family there were three electrical components three boxes uh and that the indications of the utilities were always three back in the uh 50s so I think that's the proof it's not the proof today but let's satisfy you and Mr Shephard and the board when I get Jared here and we're going to ask him some questions okay if there are no other questions for this one go ahead um you know earlier we were talking about abandonment I mean is there any burden of proof that needs to be demonstrated that this does not qualify for the abandonment as Mr stall indicated well that might be Mr berstein I mean I don't think there's an abandonment I don't think there can be an abandonment because then you'd have to show reverse that there's an intent not to use it as a a three family and there's been testimony that it has been until I think 2019 or something that's why I want to get that with all due respect counil the testimony from your client is he saw people going in and out over a 14-year period between 2005 and 2019 and came to the conclusion maybe correctly maybe not correctly that multiple people were tenants in the house but he also questioned the owner who indicated to him that you're familiar with the magic h word yes and the ml does say that does not uh prohibit the H the no it doesn't prohibit here say however it cannot necessarily be relied on as for the truth of the matter asserted which is what you're relying correct can we go back to the tax uh record I'd like to point something out about that I I just first time I saw it I would have included this in my report if I was aware of it I just want to point out because there was questions about the date the the date on the top of this is only showing the date that this particular piece of paper was printed out it's so the rec the town records or tax records are based on something done much later than 2024 just because this was I think the question was at the time did anyone recall or did anyone get a copy or review the tax records and see how far back the tax records went to show whether or not it was a one two or three unit building the the tax record is being submitted that when Mr Sutton came in got a copy of it because he misplaced his first copy was that in 2024 the record showed a three-unit development the question is did anyone bother to go back whether Oprah or otherwise and take a look at the property record cards which pretty much do exist even if the plans some those yes uh and see how long the township property record card showed a three family dwelling if the answer is it shows it all the way back to the 50s then you got a much more than an inference that at least it was the Township's Rec calcul that in fact it was a three family dwelling if if it h if it was changed from a one family to a three family after 1958 the tax sucessor would have a problem with that and would have flagged it at that time um maybe I when you do did the nature of these testimonies no that's that's that's that's not how it works it it's you're looking at something that they go and inspect and they see that it's it's three units right they they don't have a problem and they don't even well now they do because we we tell them but for 50 years if it went from one family to two family to three family it didn't tell planning or zoning or any anybody else they did that just specifically so they could value the value the property now if in the last 10 years and we could we I could probably state in record that for the last 10 years you know it's been probably the the the three cuz they would have notified if it if there was a change they notify Us in fire prior to that there was no notification they just went and did their inspection and assessed the property and that's that's what you paid I I will agree with that I I will just point out that the the date on 24 isn't the date this card was created it it's been in existence for a long time as showing a three family right now none of us right now none of us know the CHS in 24 to a three family the question is how long has it shown that right and it's one of the documents that being relied on by the applicant to show that it is a three family dwelling because this is been a single family zone for more than 65 years so I do have one more question uh go ahead so on on page nine the third floor picture of the cabinets was there any the purpose of showing us just the cabinets was to show the age because yeah yeah I was just again I was just showing the age of it I mean it was a it was a separate living unit and there's Beyond My Testimony there's other testimony there was people in it in 2019 it was you know sold as such um so I I was showing it uh those metal cabinets to date to date the the room those cabinets are typically you know you know pre-1 1960s okay that was my intention and just to clarify so the the top floor has had its own entrance and the second floor has its own entrance the the the first and second floor you would walk into the same front door right but then you'd have a separate door you know going up the stairs that was lockable to get into the second where we're calling the second floor I refer to the first floor at the top of the top of yeah the top I refer to my report as the third floor not realizing we were doing B per the door that you're contending shows a third unit was on the by the entrance when you walk into the build into the residence or at the top of the stairs I believe was at the top of the stairs okay okay yeah that's what I was trying to clarify and then the basement had two entrances oh no a front door and a back door if the basement had a front door and a back door all its own that's okay any others for this witness you're Mr Sutton I'll remind you you're under Ro you don't have to be reach for jar let's ask you let's let me find some information here number one when you saw the then current owner and you visited the house did you walk through the house yes did you walk upstairs to the second floor yes did you look at the first floor yes did you look at the basement yes and how many people do you recall living in that house when you visited it uh there were two separate uh tenants at the time and where were the tenants uh one was upstairs one was occupying the upstairs they were not home the first floor tenant uh was there with another individual all right now do you recall the basement what was in the basement when you went there to make your in uh review or inspection it was a separate unit um back bedroom bathroom and an area where the kitchen would be based upon different Plumbing that was still there okay the plumbing that was uh set forth in Mr beas's report is that correct yes there was no stove or refrigerator is that correct correct but there was a bathroom and a bedroom is that correct correct and then did you go to the first floor yes was there a full kitchen there yes that had an oven and a refrigerator and the normal accessories of a kitchen is that correct correct did you go to the second floor yes and that was where no one was there at that time right correct and did you I assume you w with the cellar is that correct or you go okay what was in the second floor uh the second floor at the time had uh cabinets it did not have a refrigerator did it have an oven a stove I don't recall you don't recall right uh so you do recall it had cabinets to have a sink yes and was there a bathroom up there there was you don't recall whether there was a refrigerator though no I don't and you don't recall the oven or whether that was up there is that correct correct and uh there was a bedroom and a bathroom up there correct so each floor had a bathroom and a bedroom is that correct yes now did you did you ask about the kitchen appliances where where they were did you ask that question no because I knew the house was in G to need work anyway so I wasn't concerned and you weren't going to buy if you had the appliances you'd throw them out I assume or give them away am I correct yes uh and uh notwithstanding Mr Bernstein's position your understanding from a conversation your understanding from the conversation was that this had been used as a three family until when when the when there weren't three tenants in there I don't recall when the third tenant moved out all right Mr shepher I'm all good now you did a fine job you got the I got answers to all the questions that I had are you sure yes I'm kidding you when does the use end when does it be this is not just not specifically for your client but if it had been used as a three family and it's not hasn't been recently when did it end when did it end and what what how important is it does the use ever end as a three family oh oh yes I I would submit to you that if uh U Jared went in and decided to make it a two family uh and said I'm not going to rent it to three people and I'm going to consolidate the third floor in the second the second floor and the first floor uh he could do that and make it one bigger unit and rent it to someone and say you have first and second floor and then subject to the existing uh building codes he could rent the basement assuming it was uh adequate under the code so he could have a basement apartment and he could uh uh you know could become a mother daughter uh and and I don't say this I mean Vince says you can't have a more than one k we let's you're talking about just for the purposes of the abandonment going from three to two we're not even because two families aren't permitted we don't permit mother daughters and we don't permit you're just talking in the context of what's an abandonment yeah well let Mr Thomas asked a good question let us assume that he he Jared decides I don't want the three family he could say I'm going to make it a two family there's nothing to prohibit that because it's a non-conforming use well let's let's let's back up if if this board certified that it was a pre-existing non-conformity and you had the right as a three family then you could make it a two family if you if this motion fails tonight you can't make it a two family because it's only single family zone so let's let's yeah yeah we don't know for sure when the possible tenant on in the basement moved out all right how long ago it was or wasn't how do we know that the previous owner's intention wasn't to abandon that use as shown by the kitchen being removed and you're right but we don't know that we don't know who or when but we do know and and you have to get I'm asking you to give some Credence that the beus report which shows ERS in this year of three units by the age age of the windows age of the doors uh the door knobs uh you know all of these these issues that he said based upon his observations it predated any ordinances okay then this question is is for Vince and our attorney how how how uh how long did do you I don't know how to phrase it if it's not being you how long does it have to not be used as a three family well well B in order for it to not be entitled we have to we have to know at some point someone actually inhabited a three family and and our attorney will explain it more legal ease but it's an abandonment of the use just because you're not actually using it and the most famous case that s just was the ice cream store where it was a pre-existing non-conforming use and for 30 years no one used the ice cream store but they didn't remove any of the fixtures it was like a you walked in it was like a museum and the court determined that they had not abandoned the use you you have to determine here as to did it start as the use prior to zoning and did it continue uninterrupted did they not abandon that use to a certain day then you have to determine what what you consider abandonment just them not using the space is not abandoning it did by removing the kitchen appliances is that abandoning it that's for you to determine and that you'd have to look for guidance from the attorney I'm giving you the generality so just you stop using it if they had the three kitchens and everything was fine they didn't use it for 30 years and they came back and were able to prove that that's fine but they have to do something that stops that use from being able to be accomplished and they have to take some overt action to do that and intend to abandon yes well okay it was easy we've had easier applications along these lines because we've actually had uh applicants have people came in Witnesses who knew the people yeah it's just getting harder and it it is getting harder and harder to do that because a lot of the people who were around for those periods are no longer with us all right any other questions how delicately put more questions so just to clarify just because it's unoccupied you're saying it's not abandoned yeah that that I mean I I would defer to to our attorney but that's no I'm just I'm just clarifying for the record Being unoccupied does not equal abandonment there are other factors is to indicate abandonment which may include the removal of appliances Etc that would indicate the lack of of the use as a kitchen but I think we have a much more underlying fundamental issue than whether it was or was not abandoned the initial qualifying question folks is when when the house was built was it a three family use because if the answer is the applicant can't prove that all the rest of this discussion has been wonderful has been informative and esoteric but doesn't meet the requirement which is to be a pre-existing non-conforming use it had to have been a three family house as of the zoning change that turned the zone own into a single family which we have determined is roughly 1958 we have had testimony that the house was built somewhere in the n in the mid the early 1950s what we don't have at least my interpretation the board is obviously the on who are making the decision and not I is it is the applicants experts testimony that because there were three electrical boxes there were three level there were there may or may not have been three kitens three bathrooms by the way the bathrooms really don't yeah have any impact per se that the parties when they buil buil it built it as a three family dwelling now tax records could show as far back as the mid early 50s that in fact it was built as a three family the construction or the building department could have material that chose whether it was or was not built correct me if I'm wrong Mr stall you couldn't find your Oprah request yeah that's and we do it I we responsibility that's which would lead one to believe there wasn't one that's correct I normally there's right there but do we not have another element where the uh and forgive me for interrupting the card the property card in the report of beas shows a 1953 construction date and then we have testimony or an acknowledgement that the Zone was created sometime after 1958 again what what might have I think I said this before and I'm again I'm I'm running out to the board the board may say they want to continue the application and say see if you can find the magic information is nobody went back and went to the tax and if you take your expert's opinion that you couldn't find anything in the building department if you tried I'm paraphrasing his statement because he didn't and relied on a website for the information I think the tax assessor a bare minimum would be terribly distraught if you were to say that they can't find their records for the last years so if somebody goes back and checks the tax the property record cards and the property record cards over a period of time show what this property record card shows I think you've got an argument that it was a three family you could double down by going to the Construction office and seeing whether or not the Construction office paperwork may still exist for the house and show it was built as a three it was approved for a three family and and I agree I serve my client so if I'm getting an indication and I I don't take it out the board may tell me to mind my own business and they're going to make a decision without it well you're I attorney doesn't mean Squad yeah and and Jim it it's it's important because it the constru ruction permits Mr beus is probably correct we don't have them in the 50s but we may have something from 1977 that says that you replace the bathroom in the basement which which may help the board toward their decision I don't know because I don't know what's in it but it's surely worth for you to look to see if there's something that could augment the record and help you and and I'm a lot of things but a fool I am not or so I no one has accused me lately of that I'm reading from the board and I have no problem you know I'm not going to go and take a ask for a vote and then if if I'm I'm catching from the board and the professionals you're catching from the board let's make the record clear you're catching from the board professionals the board has sat here quietly and said nothing as to how they're going so I don't want the board no no I and I didn't suggest that Eric I that I never do that um I have no problem to be safe rather than sorry uh to ask for the matter to be carried uh to a new day without further notice Mr beas I would not bring him back or the uh I would I would do all that we have discussed we would do ask for Oprah again I'd find out where the if there is one you don't you don't even have to do an Oprah request if your client's willing to come down here and do well he he would he's a hard work then then he doesn't need to submit an open request to the clerk can come you can come see me can't come see me next week because I'm going to be in Florida come see him next week I'd be I'd be more than happy Jared in fact if you send me an email and ask me to look for those records for you and I'll I'll go well I'll be proactive on this I'm unless unless my good client says to the contrary I mean look a month or what it's for the next meeting it's not going to kill the project at this point in time so if if he agrees with me I'm I'm going to request that this board carry the application let's see let's see where the next available time is April 3rd excuse me April 3D wow um you don't have April you don't have April fools day uh what do you say we have we have no we have no availability for nope we have three matters for next we have five after that we have a large one after after that we have a second the largest one after that April 3rd is the next time we have availability I mean I or you can or you can have the board take the vote I'm sorry or or if your client doesn't want April 3rd they can see what the board wants to do well it's another thing that I don't want to play I mean I can ask for a vote and if I get a denial then I ask for reconsideration prior to the resolution being prepared and come back in with additional information and then you may or may not say no that's not something that that you like to do I'm not crazy about it either so look what I think for the for for the February March for the two months uh Jared had said yes um but I want to do it next week because I don't want Dominic leaving the state so all Jared has to Jared just you could text me or email me and remind me and then put it in my calendar when I'm back and you know I'm back on the 28th and sometime that week I'll get it to you so you can make a determination what you want to do so my request would be to carry with that notice to April the 3 uh that the only witness I'm going to bring back is going to be Jared and I will make an inquiry we will make an inquiry with uh with Vince and whatever else we have to do I may do some other items and we'll see we see you with your permission on April the 3D I think that and we'll need an extension of time to act until that I won't know he knows I give whatever he wants proceeding that way I think is going to make everyone on the board feel a little more comfortable and be able to make a little bit more informed a lot more informed deis the record Mr berstein I did see nods of the head indicating that this Chairman's uh comment was was a good comment but they're not making any decision I would also point out just for your ratification Mr stall that you might want you might want to review the technical Review Committee comments on the last page related to the issue of proof of a free family yes yes okay anything else how about I make a motion yes okay I move that we uh uh continue uh the application of 13 Essex East Orange LLC zba 2418 until April 3rd uh no further notice required I second at 7:30 or soon thereafter the matter may be heard yeah I you know we may have to make my my my paralal is was with her daughter giving birth so she wasn't around a couple of days so may missing portion another one has s vote Yes roll call on the motion Cheryl via yes Richard procanik yes Bim verdos Alan Rich yes Gary Rosenthal yes Robert Shephard yes Robert Thomas yes do we have A1 you better give it back to us I give it back I have it I have it right here it to us I have it right there has to put it in the file please dry if snow was coming please be I mean it's not bad snow but just watch yourself be careful thank you uh and I have that there a motion to adjourn and this is also the applicant wej the applicant will the applicant will grant an Extinction on the time of decision to why we do it April 30th we have a motion TOS or second second all in favor I I I even uh