It is gets We're all set, Jackie. All right. Good evening. This is a special meeting of Livingston's planning board and notice of this meeting has been distributed in compliance with the open public meetings act. >> And if you can uh please call the role. >> Mr. Ratner here.
>> Mr. Lewis, >> he's present. >> Mr. Duffford >> here. >> Mr. Batani >> here. >> Miss Vishnu. >> Miss Rish >> here. >> Miss Kana >> here. Vice Chair Santo >> here.
>> Chairman Fernandez >> here. >> We have our quorum. We have our board attorney. Member Reber, >> Diner, and F are not present this evening. >> Thank you. And if you can please call the first matter. >> That matter scheduled for this evening is a resolution amendment for
application number 2023-1-MSUB V23 Harvest Lane. >> Thank you. Um and welcome. And just to go through the general procedure for tonight's hearing, uh the applicant is represented by an attorney who will explain the application. Uh the applicant will call one or more
witnesses to give swore testimony in support of the application and members of the board may ask questions. Uh when the attorney for the applicant has no more questions. When all the applicants witnesses have testified, if there is any entity or group appearing in favor of or supporting the application may
call witnesses. And when all the witnesses have been heard, members of the public may uh make sworn statements. Um in reaching its decision, the board may only consider sworn testimony evidence introduced as part of the record. Um is there anyone here other than the applicant wishing to enter a
formal appearance? >> Good evening everyone. My name is Matthew Patad. from the law firm Sils Cummus and Gross and I represent the uh developer of the subject site Rodak Builders. >> Thank you, Mr. Pas. Um and Mr. Skolick, you're welcome to
enter your appearance. >> Thank you, Richard Skolick. I have my own law firm in >> there. Thank you. Uh Richard Skolnick. I have my own law firm in Milbour and I'm representing Bargov and Rashi Modi who
reside at 23 Harvest Lane as well as Tun and Aditi Sony who reside at 25 Harvest Lane. >> Uh thank you. And uh you can uh um you know if you wish make an opening statement, call your first witness. >> I do. Thank you, chairman. The
properties are identified as block 401, lots 1501 and 1502 on the tax maps. These properties were before all of you in March of 2023 to bring us back into it. At that time,
the board approved a subdivision to create two new building lots. It was formerly lot 15, went into lots 15.01 and 15.02. 2. The resolution was memorialized on May 5th of 2023,
and that resolution had a condition of approval that no home on either of the two lots exceed the habitable floor area or the permitted floor area ratio in the
zone. We respect that process and we respect the conditions of approval that were part of the board's deliberation. We're here tonight, however, seeking the
elimination of that condition that was attached to the resolution on both a maximum floor area and floor area ratio based upon some very unusual circumstances that we'll go through. This is an
incredibly difficult situation for my clients who were innocent purchasers of the two homes that were constructed and uh facing these uh condition in the resolution.
I've been a zoning lawyer in New Jersey for a little bit over 35 years now and I must say I've never seen anything exactly like this situation. Uh you had that uh subdivision from May of 2023. It
was perfected by deed a couple of months later July 18th of 2023. And then the homes were constructed by a builder named Rodac Builders Livingston 3 LLC. Certificates of occupancy were issued
for both of those homes on July 17 of 2024. And the Sony's closed on 25 Harvest Lane that same day, July 17, 2024. and the Modis closed about 10 days later on 23
harvest uh laid. Both families moved into the homes shortly thereafter with their children and families. And what I'd like to do now is call a witness, a planner, Alex Doerty, to go through in a little more detail with some plans and
drawings uh what has occurred here, what was uh submitted by the builder, what was approved by the construction department, and what was actually built and go into a little more detail about what my clients are facing. I thought it'd be good to do with a visual uh
presentation and give the board a little context. So, we'll call Alex Story a professional planner. >> You swear the testimony you're about to give this matter will be the truth. The whole truth, nothing but the truth. >> I do. >> Give us your full name. It's probably the last name for the record.
>> Alexander Dowy. Last name is Dou G H E R T Y. Professional planner. My education set at Ruckers Blousing with a masters in city and regional planning, conservation, development, and redevelopment, certification of public policy. Um, I'm a professional planner. I testify in this capacity on a weekly and daily basis. I'm a member of the APA
New Jersey professional development officer. I present to League of Municipalities, uh, state redevelopment conference. I'm also the principal planner for the town of Dover. My license are current and good standing. >> Chairman, I submit Mr. Doerty, an expert in the field of planning. >> There any questions or object objections
from the board? Uh, no. So, the uh uh board uh uh accepts you as an expert witness in planning. Thank you. >> Okay. Al, you presented a slide presentation tonight which we'll call A1. How many sheets do you have alto together? >> It's 13. I don't know if we'll need to go through all of them. Um it's consist
of maps and photographs. Uh slide one is the property in question prior to the subdivision outlined in red. This was this was prepared by NJP's geo web. um gives a little context of the size of of of what the subdivision was. Um oversized and the properties in
question as well are oversized lots. Um slide two is a reflection of what is out there today, the built environment. Um these are drones taken uh May 26 by myself at the subject site. Beautiful homes, good architectural design. Um really great uh curb appeal here. Um to
the left we have 23 harvest and to the right we have 25. Um so this first slide uh here uh on page uh three is from an open request done by the applicant and council um in
pursuit of looking for the approved plans that this board otherwise um as you've uh were open open remarks uh per resolution condition not to be over the uh habital floor area and hab floor area ratio. Um upon that request, we were
able to through Oprah um get the architectural set of plans through the tax assessor's office. Um so in the red top left, it's hard to see, so I put a red arrow. Um this identifies 25 harvest and the red arrow on the bottom is
stamped with the uh the tax uh I guess rubber stamp, ink stamp. So this is architectural layouts from Space and Mark LLC. This was dated 728 of 2023. This is the cover sheet of 10 for 25 harvest again from the tax assessor's
office. The next slide here, I just want to stay on this slide for a second. The bottom two images are from that slide deck. They're cropped out and put side by side. The top two architectural plans are what 23 harvests
um presented architecturally to the zoning board which ended up here for that uh watermark for the uh resolution that FS could not be requested. Um what's important with this slide is from our understanding
what was presented to the town what's on file to tax assessor. What's important distinction here are these red arrows on the bottom here. Um this is where the roof line is I guess supposed to stop. Up here in red is approximately
illustrious if this you know for illustration purposes where that would fall. If we see the uh the middle architectural bead in the house here um as here and the blue arrows are currently existing here today um where that roof line is. This is important
because as F is floor hab floor area um ratio the bottom two images would otherwise have have met the compliance. Um what we have here unique I will echo council's concerns. Um this is this is a a very
unique one-off situation. Um I have never seen F requested from an applicant for second floor um space. is typically from a planning perspective and I I'm out every night, daily, weekly. Um, I always end up requesting F
for an addition or utilizing an attic space that would otherwise would be finished and account towards that F and in some rare cases garages and basements depending on the uh the township I'm I'm before their definition. Never have I seen an existing building footprint um
on the second floor and an applicant requesting that. So, I was curious and I went to the property. The next couple slides will show exactly what is the concern um from the applicant and and and why we're here requesting uh the planning board to resend that
resolution. I think we have a unique uh situation. >> So, to your understanding, there was a roof line uh submitted by the applicant and approved by the construction department. >> Correct. We from my understanding through Oprah's we weren't able to get
that plan from the construction department but however we were able to get that architectural plan through the tax assessor's office which was the uh prior exhibit here. Um this is the cover sheet and then these two images are cropped out from that um so I can blow them up and put them side by side. Uh
but council correct this is my understanding was the proposed plan uh for project that would otherwise be reflective of the design and scale of the bottom two images. Again, the upper two images reflect the current conditions from an architectural standpoint.
So, the next couple slides really just bring the drone out, give you a feel for the size of the neighborhood, the character here. Um, for purposes of orientation, we're going to be referring to the back of the property. Um, that kind of small step down. Uh so the back here, this window
and the other window on the side, this is um the space that otherwise from my understanding was not on the original plans to be built. Um so we take the drone out. I want to point out from perspective of this of of this F that we're requesting the board to um resend
from the resolution. Um you know, we have ample space all around us. is kind of a very, you know, unique dead end back here on Harvest Lane where the two properties really are kind of uh by themselves. Um so, >> and Alex, just to clarify the relief, we're not asking this board to grant an
F variance uh or a habitable floor area variance. >> We are not we're we're hoping that if the board sees it, we can ask the zoning board to hear our concerns and we can hopefully put testimony on what that case law is about. But for purposes of F, we're just asking for now just to
consider the opportunity to have that uh discussion at the zoning board. But we can't until that is removed from >> I think all the members are clear. I just want to make sure on that point, right? There was a planning board resolution when the subdivision, the homes, the individual homes were not shown to the planning board. the
planning board considered the matter and said we'll grant a subdivision, but you're not allowed to go back to the board of adjustment for the F or the habitable floor area. >> Yeah. So, the only thing before the board really is just to whether we're
going to remove that condition. Uh because one of the things that you know when whenever these things come before us, you know, the the the concern of this board is always that after somebody leaves here that they're then going to run to the board of adjustments and get and then seek a variance and that's
something that that the board, you know, looks really unfavorably on. We appreciate that and and I tried to address that in my opening by saying my clients, they're the really the we believe to be the innocent purchasers
here. They had an experienced builder uh who built something that wasn't on the plans and somehow it made it through and certificates of occupancy uh were issued. my clients, they could testify, but I think it's somewhat self-evident
that, you know, they did not understand this process. Uh they had a situation that Alex is going to show you in a second where there's this extra space of 600 square feet that is shown that is over the
floor area either the straight standard of 3220 or the R4 or brings them over the F. So tonight's request is to eliminate that one condition in the planning board resolution and then it would be up to the applicant, the
individual homeowners to then go back to the board of adjustment to sort of make those proofs and we'll just have to see what the board of adjustment does. But right they had tried to do that. Uh Mr. Modi had gone to the board of adjustment
because that's what he was told to do. go to the board of adjustment to get approval for this extra 600. The board's council I think rightly said we don't have jurisdiction. There's a sort of like a title defect because the planning board resolution prohibited that
application. So I just want to make sure everybody we have a very unique circumstance here and I just want to be clear about what the relief is and uh you know here is state chairman this is not the case of um of a homeowner
building too much or not building it's a an innocent purchaser uh was presented with a set of circumstances. So Alex if you could sort of go into a little more detail about certainly you know what we have here. So, what we have are two beautiful homes, but outlined in red.
They're illustrious purposes here. I I I put that red in here. It's approximately this area in red and and as well as 25 harvest. So, I'm in the backyard here on 23. I'm 25 as well. Guesstimate visually just representation
here. This area is the area in question and discussion that it currently exists on at site today where as we recall on on the slide four that roof line was a lot lower and it was about in the middle of the building. Um so at my office I
have multiple screens so I had that up and I was trying to be as accurate as I could on where this would land. Um but generally speaking the idea was the rear of the house from my understanding of the architectural drawings um that second floor that you see here there was
that step down if you will. So that would otherwise be you know trying to reflect that in this red here. Um does this equate to it exactly? I I don't believe so. I don't >> is that a full second floor now? >> Yes. >> Okay. So from a planning standpoint when
I go for FS very ever rarely ask for F in the second floor of an existing four walls of a building. Um so what you what you see here is the interior on the left side is going to be 23 harvest. On the right side is going to be 25 harvest.
They're mirrored homes and they're impressive homes. Beautiful homes. Um I'm on the second floor. I'm looking straight ahead. What I want to point out is when we look back here, there's no windows on these back walls, you know, and it's the same here. The center is
the bathroom, you know, and bedrooms and and laundry rooms. Um, so what we do is we pull down the uh attic pull down and then the attic. So, we can see on the the bottom left there's some some light. Um, on the right, I don't know what you would call this here. The roof line here
seems to be a little bit lower, but we're now we're in the attic on the bottom two. So again, 23 25 harvest. These were taken on the 26th of May. I'm in >> climbed into the attic. I climbed in the attic to climb back down behind >> those rooms.
>> So this is that dead void that we were at the zoning board trying to discuss where they brought us back here. This space exists. This is that F that we were having that discussion with. >> And the stairs going into there are the they're full pull down stairs. Yeah, you
we I got up there through the attic and I walked in and I basically just dropped down in the back of this large void. So, this is where >> How'd you get from the attic down into this space? Did you have to jump or there is there another pull downstairs? >> Um I I dropped in. I grabbed the the
rafters and just dropped >> dropped in like after the co those things are then removed and full stairs are put in. >> There's no stairs here. Yeah. I went into the attic, walked in, dropped down. This is sealed off. >> Okay.
>> But that's not code. How did they get How did they get >> I'm not a construction official. >> I I can't speak to the code, but that was one of the concerns from my understanding that both um property owners have concerns. We'll go through it. There's HVAC back there. There's a window you can't access. There's there's
wires back there. I I don't want to speak too much on what is code, what's not code, as I'm not a construction official. I don't know the UCCc code book, but I that was a concern I had. >> Let's all agree you can't have a room you can't get in or out. >> So, we're here. This is the void. >> The CO was issued for this home.
>> The the two spaces in both houses are currently that's what they look like now. They're not finished. >> Correct. This is this is how they exist today. >> Okay. >> And from my understanding, both homeowners have never been back there. The fact that I dropped down in there and they're like, "Whoa, what's back there? What do you see? Is there, you know, treasures or a note?" Um, no.
There's there's not there's >> Have you have you come as part of your you know learning about this why this was like built as just a separate panic room? >> All I know is I've been on job sites. I used to do electrical work. I've you know worked on HVAC and worked on plumbing. Things happen in the field. That's why we have as bills. That's why
we do the inspections. I I can't tell you how that got there. All I can tell you is it's here. >> How do they get access to it now? >> They don't through the attic if you want to walk in the attic and drop in. So my assumption is at some point this was discovered. I'm guessing they must have
got either TCO or CO for every place but this space and ultimately this space will connect to the second floor of the whole house. I'm assuming >> from my understanding it's approved it. The intent would be to >> 23 harvest uh attempted that and it was
flagged as it should have um by the zoning officials and construction officials that say hey accessing this space would otherwise bring you over F and that's when I was contacted say hey I need an F variance and unbeknownst this whole thing and now I'm here before
the board of the planning board. So, I've never seen anything like this and things happen. But all I can say from a planning standpoint, I know council, this is not the zoning board. I'm confident in my ability to discuss F to zoning board with this current condition. It's about scale, size, and
massing and and as a as a level of control. Um, that scale, size, and massing exists there today. So, we are going to ask the zoning board to utilize that. It's not the attic, the basement. We're not asking for additions on the second floor. And rightfully so, they brought us back to the planning board for resolution. Can you just show the
backyard and the camera? >> Wait, wait, before before we leave that, >> if I know you're not here for the F variance, but if you were to get the F variance, >> is there like a a conceivable way that this connects to the rest of the second floor, is there like a cutout waiting to
happen? >> So, I believe no, there's no cutout waiting to happen. and um reviewing 23 harvesters application before the zoning board. The idea would be um to basically remove this bathroom and do a hallway
and kind of access it that way and then move the bathroom off to the side. It was just a matter of basically going straight forward here and and going back there. >> Mr. Lewis Mr. Lewis had it right. There's going to be have to be some renovations on that
>> interior pro reprogramming of the second floor to access that space, but it is just a matter of knocking down a wall and continuing the hallway through the bathroom. >> Well, >> area >> to me that it kind of senses I not to prejudge this, but it seems less
sinister if that you would have to go through all this trouble to use the space. Whereas if there had been a pre-cut out door jamb that you could just pop through the the sheetrock, then this could have all been >> premeditated. >> Premeditated. Exactly. >> Yeah. We're not saying it was premeditated.
>> No, I'm not saying I'm saying what we're looking Yeah. We're trying to figure out, you know, what what happened here. And I don't know that Mr. Rodak would build a house. We have to demo the bathroom to be able to get to this back space. That's awfully >> I have a couple properties myself. I brought properties down the studs, do
full renovations. Um I I think that renovation would have been fairly minor to access that additional 200 some odd square feet of of hell space. But um >> 200 or six >> um sorry it was close 600 600 ft of >> and the plans you you um sub you operate
that doesn't exist at all. The roof is just lower. >> Right. So I believe the initial design was this this is where I was that void back there. Those are those windows that nobody has access to. that roof line was um from my understanding supposed to be
substantially lower. So that that rear portion of the second floor doesn't extend as it does in the current plan. This is the top two images are what's there today. The bottom image image from my understanding was what was supposed to be construct
>> and that's a is that a great room in the back on the first floor. >> Yeah. on. So yeah, there it would basically just the second floor kind of stops and the first floor continues a little bit further past that. Here the second floor basically continues over the first floor which was not from my
understanding what was supposed to be constructed. Constructing it as it exists today is is kind of why we're here. That that space exists on the second floor, not the attic, the basement. It's not an addition. It exists there today.
I'm just confused about one thing. Sorry. Here. >> When the house was constructed this way, there's no access to that area. When the house was purchased, what was that area marked as? You know, you buy a three-bedroom, fourbedroom house, and
you know, we walk through each room. >> I don't believe I'm at liberty to discuss that. I was I'm not the purchaser. I wasn't part of that walkthrough, part of those negotiations and understanding of of purchase and acquisition of the site. Um but from my understanding that's something maybe the
council or the applicants can discuss before the board for some additional um information. >> Could have Mr. Modi know had an understanding that at some point it could be fit out. They didn't understand even what zoning was. So we can bring
him up. >> So there was a understanding of some sort that it could be used eventually. >> They knew the space was there. I'm re I'm profering for you because my client is right here. >> They knew the space was there. And they
had a lot of conversations with the builder about potentially building that out. Ultimately, they made the applica. They were told, "Oh, you'll need to go to the board of adjustment for the F and the objective aidable floor area." They
knew the room was there, but they had no knowledge. Why would they? That >> it wasn't supposed to be there. >> That you would need a variance and that there was a resolution that
said you couldn't apply for that varian. That's the big missing piece. >> And why I uh suggest to you that my clients are very innocent purchasers. >> They knew that the space was there. There was wiring. Alex, can you show it? Right. >> Yeah.
>> It was It was wired. It's nice space. They anticipated at some point trying to build that out. They thought they'd just have to go to the building department and get the permits and then surprise you're not allowed to do it and now you have
>> a structure which is very unusual condition. And again, we're suggesting >> we're building plans. Builder presented something that was approved. the builder delivers the CO to that.
>> So now it's closing day, >> right? Uh Mr. Santos said, you know, the cos were issued on July 17th, 2024. One of my clients closes that day. One of my clients closes 10 days later, but how are they to know
that there's So we're here to in a in a reasonable way ask this board for the permission to go to the board of adjustment to present the case. We're not asking you to decide on the F of course, but I just want to make that point. Also for a second.
>> This So this was marketed as a livable space. >> I put my client on to say, but that to me is self-evident. >> It was wired back there. >> Wasn't she?
There's a 600 square foot space, but on the second floor, but that's for a different form. That's a dispute between my clients and the builder potentially. And we're hopeful that if this can be
resolved through the request we're making tonight and then ultimately at the board of adjustment, that dispute will be fairly narrow and and sort of manageable. that doesn't happen. It gets a lot more complex. So then it's what to do with
this space and and the house is different. So Alex, how about the aerial and and the point I'm trying to make is we're not asking the board for the variance, but the board had concerns. We know the board had concerns when they came to you for the planning board approval and you said
no F. And the point I'm just trying to put forward in front of the board is that there's these very large backyards. So, so we're not here to establish detriment like we would for a variance, but >> so yeah, >> we don't think any member of the public
is going to know the difference between what the construction department approved and what was actually construct because there's there's a right we have a very large backyard and we're talking about the F goes to the massing of the it's only in the back of course it's
only in the back the extra massing of this 600 and there's a massive back. Show us the area. >> Yeah. So what on on slide one here, this map from NJP web um for those that know you know Livingston all that well, there's a bank next door off off to the side, that bank has a little finger that
kind of creeps in the back behind these houses. So this property does not abut the other residential property. So when we say a massive backyard, though, these are two subdivided lots that are oversized lots, but also we have a large void in the middle from the bank's property that's, you know, wooded and
then we have the neighbors in their backyard. So, um, there's an area right here on this lot that kind of extends behind that. Um, and that's kind of really reflective right here, this large void. So, we have >> So, that's bankowned property there. >> Yes, that that's bank-owned property.
>> Okay. So, but the you have a considerable distance with a good bit of trees to the houses in the back. Correct. They're the ones >> that the board of adjustment presumably is going to have to decide, you know, is their air, light, and open space
negatively impacted. Our suggestion is they're pretty far back. There's a lot of trees. >> The folks who live back there are never going to know. >> Is the footprint as built the same as was submitted on the plan? >> I don't believe I can answer that. I don't believe I saw an asbill >> footprint.
>> The >> the footprint. >> Well, the footprint. Yes. The four walls are from my understanding >> footprint. Yeah. It's just a vert it's just a vertical. It's it's the you know there was a roof line and the and the roof line somehow got built a lot higher
making that space potentially habitable. >> U but there is a substantial uh void between the two properties of the rear properties of of the of the abuing neighbors um residential properties. It's it's a very I think it's unique corner right here in
Harvest. These it's it's almost like it's its own little uh neighborhood back there with the um the way that the the closest neighbor uh faces he's kind of orientated away from it. It's just kind of these houses are just on their own in a dead end, if you will. Um, and really
to council's point, if if there ever was an opportunity to have this discussion further, if the board sees a fit at the zoning board, this is just a reprogramming of the interior second floor. It's a pretty straightforward application at the zoning board. Um but nonetheless, in order to get there, we
we need the planning board to see um the issues at hand and ask for that um resolution condition to be rescended to give us the opportunity to have that discussion of what F is and what it means to these two properties in this neighborhood. But the building exists there today with that void whether it's
being used or not. That size and scale of massing is out here. Could I ask um and obviously the reason and and you you said these are oversized lots but just to be clear they're I guess arguably oversized as compared to some of the other neighborhood lots. They were in
fact unders sized under the code because of the amount of square footage within the first 125 ft which is what gave us the jurisdiction to impose this condition in the first place. >> Um so I and I appreciate Mr. Skolnick indicating from the beginning that you accept the validity of the condition. Um
just for order of magnitude do you have available what the current F would be versus I think it's 30% and 3250 whatever we >> if we were to occupy that is every square foot of that space over I mean is the rest of the house built all the way up to the max.
>> Yes. Yes. It's going to it's going to kick us to about 36%. Permitted 30 but it's six it's 600 square feet this this back. So in ter And in >> terms of a way to think about it >> just for purpose of our record and even
though I understand this is not the variance hearing because I would if we grant you relief you'd be in front of the board of adjustment but being that you're a planner here you have any opinion in terms of the impact of that enclosed having that second floor on the generally the overall neighborhood detriment. So
>> just a high gloss review for F. Um we typically see in commercial think of targets where you know Walmarts that kind of ordeal. Uh residential when it's applied really is about preventing parachute McMansson's you know be an appropriate scale neighborhood continuity and conformity. Um F when we
look at it can the site accommodate the additional floor area and the answer is >> that's the legal standard. >> Yeah the answer is yes. Do we have parking? Right. >> Can the site accommodate? >> I was given a high overation. I was given the high over gloss review of of F. Can the site accommodate the addition? >> I showed a board that I know the legal
standard. Do we have parking? You know, if if they were to be bedrooms or, you know, expand the bedroom footprints, you know, we would look at can that site accommodate that. You know, we have water, sewer, the homes are built. Um, is there going to be any detriment by way of scale massing of the building? I would argue
not. They're kind of on an island by themselves. They're already built here. Um, I think it's just gonna we would argue more certainly more efficient use of land in that regards, you know, purpose a, you know, being able to finish that work that's back there, that kind of stuff. But it does not change the built environment. It's to the rear. You have that beautiful curb appeal.
Again, that scale and massing is already existing in the rear. So, from a planning standpoint, I think I can make an argument the zoning board that this relief can be met. It's very unique. It's oneoff. It's F on the second floor, which I've yet to ever testify to. um typically attics, basements or additions
for F couple garage applications. But >> Mr. Lewis, if I may add, I think Mr. Valario's question sort of went to that issue because it's really the roof line that we're talking about, >> right? >> Because >> yeah, the overall the same. >> So
the the uh the walls are the same, the foundation of the building is the same. The builder did not expand the foundation. Uh but the roof line got made higher uh sort of creating
this. >> Do you know the second floor instead of an >> I mean essentially a giant >> second floor. So you right you would say nor you'd think of and this is Alex's point you'd think of the you know the attic but he he had to he he had to deal
with 3220 square feet and he would have submitted a plan and then the roof line somehow got built a little bit higher. My clients thought that they could finish it out, but now they without
having to go through variance and this my clients came to me they had never one of the couples moved from California. They didn't even know what a variance was. That's a great shame if you're a land use lawyer but right so they're sort of innocent. So the dick Mr.
Valario's point it's the roof line. It's the roof line. the change in the roof line is the delta that we'll have to show the detriment is relatively >> yeah and again I don't I don't want to get into full variance proofs I just wanted to get a little something on the record um
>> question I don't know whether you know were both houses given full unconditional cos were they still in on TCOs was it fully coed as I guess as non f space because it's quatic or >> call them up I think they you know, I
profer that. I think the other one moved from Boston, one moved from California, they got their co, they closed, they paid a lot of money to move into the house. >> Is there some type of argument you're making that there was a reliance on the issuance of the approvals by the township?
>> We're we're we're not there. You know, that's a legal argument, counselor. We're we're >> This is a legal application you make. >> I would appreciate that. We we could uh we could make that assertion. I don't know if we have to go that far. But there was certainly some element
that my clients are are innocent purchasers here and there was a CEO issued and nobody informed them of this nuance about the extra 600 square ft. I I think that's a reasonable assumption
for lay people not to understand. So there was, you know, a series of things happened that they didn't get informed. the builder code department. Hopefully, we can straighten it out.
>> Did the resident see this condition when they purchased the house? They they knew the space was there, but they thought that they could do something with the builder and there were negotiations with the builder to to to build it out further, but they didn't appreciate and
why would they that they'd have to go get a variance and they didn't appreciate that ask for a variance. >> They didn't know that they would have to go get a variance because the house was built and a CO was issued and there's an element of reliance upon the town's officials. I I would suggest there's an
element of that here at least that if a CO gets issued and the building is constructed that you don't have to go get a variance. Not >> a surprise to them. >> Yeah. Not only that they had to go get a variance because the space was enclosed.
Was a bigger surprise when Mr. Wel, the board of adjustment attorney kicked them out and said there's a legal impediment. you're going to have to go to the planning board and this was two weeks ago or last two
and a half weeks 17 days ago or two yeah about 17 18 days ago. So, if they thought they could build the room out, which I take as truth, didn't somebody say, "Well, how am I going to get to that room when you build it out?"
Was it was there an answer to that question? >> Put my client on. >> Get him sworn in, man. We're going to answer your questions. >> We're going to be on the road. So raise your right hand and council's going to swear. >> Raise your right hand. You swear the testimony given this matter will be the
truth. The whole truth. Nothing but the truth. >> Yes. >> But please give us your full name. Spell the last name for the record. >> Arg Modi. >> Spell the name, please. >> B H A R G A B. Last name is M O D I.
>> Okay. And you have 23 Harvest Lane. >> Correct. >> And these are the pictures of your house. Alex show is 23. >> That's me. >> This is this is >> Mr. Money. >> I was not as brave as
>> Got him. >> Certainly can't say you didn't know that was that room was there. >> Great. >> So, Mr. Mod, let me just ask you a couple of questions. So, you you went to see the house for the first time, right? And your your realtor walked you through the house >> and then did you see the open space the
first time you visited the home? if if I may just take the liberty to um to share the start to finish story. I think that might >> a lot of the questions that were brought on here. But before that, uh thank you chairman and thank you to the board uh
board members for your time and service today. My name is Baraf Modi. My wife and I, we purchased this beautiful home in July of 2024. We got into the contract in about late March of 2024. The realtors that we leveraged were P1,
which is the same realtor that the builders also represented as well. The house was at the framing stage at that point in time. We loved the location. We have a little kid and you know today right now he's able to ride his bike so it's dead end so it's very
safe. Um we liked the houses that the builder had built that we had seen. As the construction progressed, we noticed an area that was left unfinished. We inquired as to why this area is
unfinished. Why can't this be finished? We were advised that this is beyond the scope of what you paid for. The builder is extremely busy. This will be finished at a later time to your liking for an additional fee.
Of course, that was a little concerning to us. We've had our apartment was already reented. We moved in because the house itself is sufficient to us. After moving in, after various follow-ups with the builder and the realtors,
we were finally connected with the builder's architect. Through designing this space to our liking, we got our hands on the original plants. When we were looking at the plants, we noticed the roof line was lower.
We asked in a chat where is the space being shown. We got a response back circling the roof line. We said but this roof line is lower versus the actual is higher. >> This is after you moved in. >> Correct. We were advised do you want to get this
house finished or not? You have the co there's nothing illegal has been done. We stressed it that yes, we want to get this finished, but it's important that it does it does it it gets done on a legal per legal basis.
The builder submitted the application as he had promised that he would build this uh finish this space out to the zoning department or to the building department, we don't know exactly which department because we don't understand the process. Two weeks later, we got an email from Michelle at the zoning office with the
denial letter that really took us by surprise as to why is this space being denied? What is this zoning? We came and visited Michelle. We explained to us what zoning means. It is at that point in time we distanced
ourselves from the builder because we realized that something improper had been done here. We sought professional advice. And that's why we're here before you seeking your approval >> to go ahead and finish this space out in
a legal way. >> You said you you shared a realtor. So the realer that was representing the seller was representing you. >> Yes. >> Did you ask the realer, what's going on with the space in the back? How are we even going to get there? There's no steps or a door.
>> Yes, we were advised a door can be fitted there if you wanted to. We didn't want anything like that. Again, we have a dog. We have a little guy. We don't want them to mistakenly go into an unfinished area. As you can see from the photos, it's not
safe for a toddler to be running around there. If you look closer, there's actually nails and stuff there, too. We didn't want anything like that. We wanted this done properly after we moved in as we were promised. >> Did you have counsel when you bought it? >> Yes. The council was also recommended by the realtor company. We were not advised
of the legal impediment during the council's representation. We're not, just so you understand, we're not trying to give you a hard time. >> Somebody came before us and said, "We want to take this one lot and make it two lots." And it wasn't big enough to be two lots. So, we said, "Okay, we're going to let you make it two lots, but
we don't want you to put giant homes on it. So, you can't go and get McMansion ordinance variances because that's what people would do. They would get a subdivision from us so they could have smaller lots, and then they would go to the zoning board and get a bigger house approved." So, we started to say, "If you're going to file for a McMansion,
you got to come see us because you already told us when you came for the subdivision, you weren't going to do that. You were just going to build houses that fit in the zone." So, now we're left in a very uncomfortable position because we don't have any teeth. We could put that in there all day long. And then very nice people like
you who just moved to our community, and welcome by the way. Yeah. >> Come into us and say, >> you know, I didn't do anything wrong and you didn't. >> But we have no way. there's no way to police the situation going forward if there just build it and the planning
board will let him you know fix it later. So it puts us in a very uncomfortable position. Not no offense to you. >> And also to add to Mr. Santo's uh what you said um well welcome to Livingston and we didn't intend to give anybody a
hard time but I think the dilemma here also becomes the are we setting a wrong precedent. Will there be another builder who will make something like this and uh completely uh ignore or overlook the conditions that were set while the lot
was divided, override it, and then present us a beautiful house. I mean, your house is it's not of any detriment to any the neighborhood. It looks fine as it is. It's not a big deal. It's not beyond the footprint as uh council pointed out. So, it's really not a big
deal, but it's a matter of principle at this point. Uh, but again, now we're all trying to see what is the best way out and how can you be helped is is our intent and we're all neighbors at the end of the day. >> We we appreciate that.
>> So, um I'm going to weigh in and try and shed a little light. I may be speculating, but um we have in our FA Well, we did we recently amended it. Uh there was a loophole, if you will, in our F and habitable floor area ordinances that created an exception for
subsequent conversion of attic space within if you're not changing the exterior, you can convert an attic and it doesn't impact, you don't have to get a variance. That no longer exists in our code, it existed at this time. Um my my gut tells me that Mr. Rode who's built in town and
knows that ordinance probably fully expected that he'd be able to comply with his planning board because he wouldn't need a variance because we had an exception for it and um now it requires uh because that's no
longer in the code. Um so that I think that's probably how we ended up here today. And I see he's not nodding in the background. Um, I think the problem is, you know, billers would use this loophole as an exception. >> Uh, they would use this loophole as an
exception. And >> well, it came time to stop it. Um, and I guess this is now getting caught in that >> loophole, you know, the loophole change. >> We appreciate that, >> which which your client has nothing to
do with. That's the that's the issue that I'm I'm your client has nothing to do with >> that the equities be balanced. This is not uh and I think it would look a lot different if this this was a builder before you tonight. Was a builder had come to you secured the subdivision
approval uh and then built something and that same builder said, "Oh, oops. I made a mistake. Please change that condition." If I was representing RODAC and RODAC sitting here,
we have a builder submitted construction drawings with a roof line and didn't build that roof line. >> Yeah, this is this is actually >> and this went through you there there has to be please some recognition of
some degree. We don't have to decide the whether the culpability of the construction department is one or 10 tonight. But >> so very difficult situation. >> I guess the added insult here is that you know number one trying to use you
know using the loophole but number two building not according to the plan. You know we have too little problem. >> I absolutely agree with that. So yeah I think that last statement is what is hitting me. Um and in fact that's the kirks of the problem here. Uh the
approval was done as Mr. Central has said by the way welcome to the town u yourself and the stony family. You shouldn't have this experience. Believe me it's a beautiful town and we do a lot of good things in town. Um but to Mr. Santosa's point when this application
came subdivision happened conditions are set road builder is not new town loophole or no no loophole there is a a way to work through what is approved and
not over construct that's actually very very uh disappointment is a very very soft word to say the least So not a issue for the buyers. We understand that. Uh but
there is absolutely a uh an irresponsible part uh the way it is constructed uh and the way it is sold. So I think that is where we were we were going is that how it was sold to you. Um again loophole or no loophole. It should
not have been constructed. That's number one. And um now it's up to us to really see through what other arguments are there. It's that's why I opened it. It's unusual. So, it's constructed, sold, and there's another verb called approved,
>> right? And and that's, you know, certainly as a town manager who oversees the construction office, >> we might have taken tonight's meeting off. >> I I have some concern about what happened. And um certainly, uh if plans were submitted, it was built with a second story instead of a first story,
and we went out there and seeded it, that's problem, right? Because that's where it should have been caught. It wouldn't have been conveyed to your clients yet. We would have gone to the builder and said, "Take that floor off." >> I absolutely agree there, too. Barry, can I ask you a question? Is you think
that would have qualified as an attic under the >> Well, >> I mean, I don't know how they determined what an attic was, but it had windows and wiring height, right? Switches or I have to tell you because we're I mean, we kind of all know the facts now and we
can we should talk about this. Um, I think Mr. Scholic's last argument is a winner for me. When the facts aren't in your favor, you argue equity. >> Yeah. >> And the person sitting next to him did nothing wrong. >> 100%. >> We gave a seal we should have never
given. >> And I don't know. >> It would have never closed. >> How it's fair. >> Can I can I mean, can we find out why this was built this way? >> Yes, I would I would agree. I mean I I I would like to find out and I but I don't
know that that's well I mean I don't know that it's necessarily relevant to these folks but >> so my understanding is when there's a valid condition in a planning board resolution which there is um our ability to change it largely hinges on either change circumstances or other good cause
um the change circumstances that it was built I don't know how much equity >> you can't make your own circumstances >> you can't create your own change but the other good cause I think is where the combination of the the inoc buyer whatever dropping of the ball by the building department and coing it all to
me comes together. So I'm leaning towards but I'm I'm going to qualify it in the sense that we put that condition in there um to limit the size given the fact that we're allowing two undersized lots. Um I don't think it's an all or
nothing. I don't think we I think there may be a way to modify the condition to permit this deviation but not future deviations. So So we they don't come back to the board of adjustment two years from now and add another 500 square feet because that there's no equity on it. But um that that's kind of
where I'm coming down on it. >> That seems to be reasonable. >> I think that makes good sense. Barry, >> I just want to say on the record, it's a beautiful home. >> They look nice. They're good ratables. It's this beautiful home and and it
could it the value of this space can only add more value to the site and which is otherwise adds value to that neighborhood. Um it's >> and you can walk the bottle king >> Friday pit stop. Yeah. >> On that note of beautiful section of the
municipal land use law is that Mr. one of the is that one of the goals and purposes of zoning in section two being to the liquor store. >> Question for you. In the note of being beautiful, I mean in that if you showed that picture, isn't it odd to not have more windows?
>> Right. That was my first comment, anecdotal comment um to the applicant when I saw it. I I mean, I'm in people's homes a lot. I see homes. I personally visit every site I testify to. Um new construction, additions, that kind of thing. I testimony across state. I've
can't recall a home I've been in where the rear wall does not have a window that looks out. That was and I'm looking on the fir I I was going up and down the stairs. I'm like, "Wait, so it stops in the middle here and there's a space here." And he's like, "Yeah." And I'm like, "Well, how do we get there?" He's
like, "I I should show you to go up." And so I was just eager. That's why I dropped down. I'm like, "Oh, this is a huge space, you know. You know, it just, you know, and I just said the same thing. I'm concerned if I was a homeowner, the windows, you know, the h, you know, and I, what happens if something happens back there? You can't
get access back there. And I was like, you know, um, and so we came with the architect and the architect made some reference about windows and typical architectural designs. But, um, I I I do find it weird that we have that. It's it's considered like a faux window. It's a fake window. You can never bring that
light in. I will say when dealing with, um, 23 Harvest, uh, Mr. Modi um his proposed application. One of the concepts in that back area was a beautiful sun room. It's gets a lot of sunlight in that rear yard is you know it. So um I I was like yeah and the
windows are fairly large as well. But I felt it was weird that you have a window in the backyard and then when you're under upstairs you didn't see that window. So it took me a while to get my bearings when I was in there to figure out exactly what he was trying to describe to me because again I've never seen something. Well, it's probably more
consistent with trying to at least initially treat it as an attic by not having windows. >> But you can't get there from the attic unless you've jumped down. >> They're considering that part of the attic is my guess. But whatever. >> Yeah. >> But even if it is an attic, it'll still be a violation.
>> It is now, but two years ago wouldn't. You could come in, convert the attic, not need a variance because that was the loophole we talked about. So he wouldn't have needed to to violate the planning board condition because he didn't need a variance. >> I don't have the definition of an attic
in front of me at the moment, but I I I would argue that this wouldn't been an attic. It's on the second floor. >> Yeah, that's what I was going to say. Under the attic. You went through the attic and you dropped down and dropped down. Yeah, that's what I got to figure out how we seed it. This is >> Well, no, I I would, you know, I might agree with you, but this, you know, but
this wasn't built that way. It was It was built even bigger than that. >> It was on purpose. Right. Irresponsibility built. >> I can't say it was on purpose or not. Things happen on the job site. >> Got it. But >> we're we're, you know, I have a client and and and we're asking the board to
weigh the various equities, including, you know, its own authority to impose conditions and and make sure those are satisfied. We we absolutely appreciate that. But this is I think a a real oneoff uh here in terms of of what
occurred, who was responsible and also a situation not on the merits but the board could consider. There is a very large backyard here and and the massing is only in the back. So we don't have some of those other concerns that perhaps the board had thought about when
it imposed the restriction. Now we have a constructed house, it can see actually what's going on and I think that can be at least a little bit of a factor as well. >> So I just want to throw this out to the board. I mean is I think we've we've heard a lot of of testimony. Um do any of the board members have any other
questions? Are they prepared to um you know to make a a motion one way or the other? >> Um yeah, again I think all things considered and under specifically the other good cause component to to modify or rescend a condition. Again, I'm not
inclined to fully resend the condition, but I'd be in favor of uh modifying the condition to allow the F and ratio exceedence to whatever the I don't know what the numbers are. You can provide us with the numbers so that can go in the resolution if
>> I would be careful about making any type of opinion as to the F. All you're doing is allowing them to go to the zoning board to make their case. We're not allowed to give >> We're not granting it. You can't do anything about a ratio. It's not It's not jurisdictionally allowed.
>> No, I'm just saying limit the revise the condition to to have they still have to go get the variance. We're not >> current condition, right? >> You're saying you don't want any more additions to what is currently there. >> Exactly. I'm sympathetic on this one, but I don't want to open the door for
them to come next year and add more. If you look at the house, I think that'd be pretty unlikely, but it solves the that would >> solve this element of the problem. And I perhaps Mr. Valerio could draft something. Maybe I'll take a look at it in terms of what that might look like. >> Mr. Mr. Lewis, I have a question for
you. Yes. So while we close the door on this application or this particular property not coming back with any further increase or enhancement or built up, how do we close the door on any such future case with something
similar u some similar storyline where this happens over construction without permission and then the home purchaser is in a in a limbo and then we want to help And then this this goes down in in
history of our planning board saying that okay this happened in so and so year with the so and so application thus >> yeah well I I don't think um legally it's it's not a binding precedent in the sense of because each case or matter before us this is relatively unusual
given that it was already built coed again as far as closing the co component of that's on me and the you know the building department and planning department and how how this got coed not the planning >> things happen in life. >> She has nothing to do with it. The building department >> things happen things happen in life.
We're not, you know, it's not our issue exactly, but things do happen. We appreciate that. >> Yeah. That I mean, this would not have happened but for the CO, which allowed the property to close, which allowed the innocent purchasers to buy it, which uh again we issued the CO.
>> So, we have a motion. Is there a second? >> Is there any further discussion? Jackie. >> No. S. >> Yeah. Based on the facts, I don't think you have a choice. >> Uh I feel for you
to to go into a new home and try to enjoy it and have all this complication. So I I think we as a group hope it works out for you. Thank you. >> Thanks. Yeah. And welcome. Welcome to Livingston. And now that you are in
Livingston, hope you'll volunteer your time. And so >> got a lot of committees, >> Jackie. >> All right, there's a motion. Uh, Mr. Lewis, >> yes. >> Mr. Ratner, >> yes. >> Mr. Duffford, >> yes. >> Mr. Batani, >> yes. >> Mishnu, >> yes.
>> Miss Cono, >> yes. >> Vice Chair Senola, >> yes. >> Chairman Fernandez, >> yes. >> Thank you. Motion carries. >> Thank you, Chairman. Members, thank you, >> Miss Conor. It's usually the other way around, of course, right? I'm sure you've heard applicants, you know, I've I've coached, I volunteered, I did this.
So, please give me the barriers. I've lived your lifeong res. >> We have this the first time I heard now it's all switched around. We'll give you the relief and then please coach us. Thank you for your time. >> We are. >> Thank you.
>> Absolutely. >> He even took a video for us.