few e he's not I guess was here ago e e good evening everybody Welcome to the Milbourne Township planning board
meeting in accordance with Section Five of the open public meetings act chapter 231 Public Law 1975 the advised that a notice of this meeting was made by posting on the bulleon board town hall and mailing to the officially designated newspapers a list of the meeting dates
annually indicating that this meeting would take place at Town Hall at 7:30 pm. on March 5th 2025 Cory Viller here Alison camfield here Cohen here Frank Sagi here Master
pH here de ne here Michael Zion Jonathan Baxter here Serge s here TJ here hel here on tonight's agenda we only have one item it's application
24003 um just before we start I'd like to remind everybody to please keep courtroom decorum when people are here speaking please don't speak for them wait your turn please try and keep the conversations in the audience down so
everybody up here can hear and our reporter can hear Mr LaVine evening thank you Mr chairman members of the board Michael LaVine with Fox Ro TR here on behalf of the applicant High Center for living Judaism Inc um it's just by way of a little bit
of housekeeping and taking stock of where we left things off um Andrew viio our traffic engineer um had provided some supplemental testimony in support of his supplemental uh traffic report uh
it was a great deal of questioning uh and at the end of the evening as uh it was getting late there were two folks that had said that they did not yet have they had some questions for Mr vishio and did not have an opportunity to ask those to De be perfectly honest the folks were kind of over my right
shoulder I'm not sure if they're here who they were I don't think they identifi themselves by name but I do know that there were two folks that said that they had some questions they didn't have an opportunity uh to ask so I think that's probably the first item of business in terms of in terms of
my Witnesses and then from there uh we have our Final witness is our land use planner uh Paul Ricky who's uh available to testify um after Andrew um and then uh at that point I would probably just uh obviously
he'll be subject to uh the questioning and then um at that point I know that there are some objectors that have submitted some materials in advance maybe looking to put on a uh case in opposition and there's also the opportunity for public comment and statement not just limited to questions
uh at that stage of the proceedings I'm sorry you finish I I was there a question no no I'm waiting for you to finish all right so that's uh that's what I have in terms of what we have in store in terms of witnesses and and where I think we are I think the
only other unfinished item of business that a number of the board members had asked about was the extent to which the applicant was going to provide additional Visual renderings and representations of the application may recall initially as part of our
application we submitted from the architect floor plans uh dimensioned floor plans elevations colored elevations of all four uh sides of the building some three-dimensional rendering showing uh trying to demonstrate that
the HVAC units in the middle of the roof would not be uh visual uh visible given their location and the the angle of view and in addition to that we had provided on really on two separate occasions um offsite
visual depictions uh as best we could of what we think the site would look like in a post-development condition trying to take into account existing mature trees uh proposed Landscaping the anticipated uh location of the of the
building as shown on our site plan um we went through those initially and then we updated those um in order to be consistent with the revised site plans uh that we had submitted so in addition to that there were series of additional inquiries like um I think one person
pointed out that our visual rendering was from Google Maps so it's approximately 10 to you know 12 feet above the ground do you have something at six feet we've got other folks either from the board or members of the public asking what about you know the second floor of adjacent homes that might be an interesting view we've had requests for
360 Degree views which would obviously involve getting access to private property on at least you know two of our sides um the short answer is no the applicant doesn't plan to submit any more of those types of of visual uh depictions or
representations uh and the main reason is this um I was dismayed to learn been preparing for tonight's meeting that two weeks from now will Mark our halfe uh anniversary if you will of the commencement of these proceedings so
we've been at it for nearly a half a year um during that time the applicant has tried to show uh a willingness to to cooperate to listen to take input to take recommendations and not just give it lip service not just kind of nod their heads but actually look at it chew
on it and try to incorporate those requests and and recommendations into revised plans changes large and small substantial revisions to the locations of the driveways uh one on Old Short Hills Road trying to line it up with Park Road one
off of parsonage Hill pulling it significantly further back from the intersection in order to make it more safe and efficient and um reduce queuing entirely revising the storm water management plan to to eliminate
surface level basins in favor of underground improvements and more green infrastructure that allowed us to maintain more trees to include more Landscaping uh to provide a more aesthetic uh layout um we've uh agreed to work with your
Forester to further supplement our land Landscaping uh plan and take uh their recommendations with regard to species and planting and and density and what have you we've also uh agreed to a number of conditions of approval this if this board were to see fit to to approve
this application everything from agreeing to you know post installation noise testing at the hbac just to make doubly certain that it's fully compliant with all applicable laws you know voluntarily limited our hours of uh garbage pickup uh to not before 7 a.m.
we agreed to to maintain a 6 foot solid screening fence along the western portion of the property and maintain it so that it remains an effective uh visual buffer to that neighbor um so these are requests for the
additional visuals I mean they're expensive they're burdensome they involve in many cases access to to private property so it's tremendous burden for this nonprofit applicant but more to the point and more legally relevant it's a request for
information that's not relevant for purposes of the board rendering its decision the board's job and you hear from this about this from the planner you hear about this from me again as part of my closing remarks we kind of pushing things up a little bit in order to try to address this issue but the
fact of the matter is our burden and the and the board's job is limited to looking at what's in the ordinance and demonstrating that we comply now there's a common used tool under the municipal L's law of establishing special design districts whether they're related to
Historic structures or other you know downtown areas other other areas of town that that more in special protection where they actually adopt design standards where you there's certain limited colors that you you can use there's certain required fenestration
and and um finishings and and what have you so those tools are available those tools haven't been used in this instance there are no objective stand standards that we can point to to give us any sort of guidance as to what would be required they don't exist and with that being in
the case the the cases are very clear you know piso man didn't at all you hear about those again from our planner later this evening uh hopefully these kind of nebulous concerns about aesthetic impacts are not legally relevant considerations for purposes of a board weighing an
application the notion of trying you know I'm curious about this so I'd like to see what this looks like or the neighbors seem to be concerned maybe we should get some more of this information um that's not within this board's purview and to ask for substantial
amounts of additional irrelevant information half a year into these proceedings I would maintain it's not reasonable Mr chair if I may ask a question of applicat council based on the
represent the contention made by applicat Council the uh uh Mr leine are you saying that those items are not relevant in any land use sport application or are you saying only in an application where uh that is effectively
a fully conforming site plan application uh uh uh uh and perhaps also uh a fully conforming conditional use application before planning board which I understand is what you contend this
application is and as far as I understand and Mr pedo can correct me if I'm wrong it at least at this stage appears to be just that at this time but is that what you're limiting your remarks to exactly that's an important
consideration Mr Warner and yes that's important legally and factually uh distinction to make I appreciate the clarification because we certainly do and it it's yet to have be alleged otherwise by any of the board's of professional Consultants that we fully
con form with all of the conditional use standards and all of the site plan requirements under the ordinance the ml is very clear that with regard to site plan approval which was one of our two- main approvals that we're seeking if the applicant complies with the site plan standards the board shall Grant approval
it's mandatory language is not May or is permissibly or or can it shall Grant site plan approval same is true with conditional use standards if those conditional use standards are met and the planner will we'll talk about some of the ca relevant case law with regard to this at tantamount to a a permitted
use which is a very different thing as Mr Warner alludes to to something that requires variance relief in that instance that burden is on the applicant to affirmatively demonstrate that what they're proposing will not be a substantial detriment to the public good and won't be a substantial impairment of
Zone plan and zoning ordinance those requirements that burden does not apply if you're a fully conforming application by conforming to the or the ordinance requirements are an expression of the governing body's determination of what is protective of
the public good we've heard a lot of of comments and complaints remember of the public wondering why this industrial building is being put in this residential area my first contention is it's not an industrial building in any way shape or form but more to the point
your ordinance allows houses of worship in several residential zones under your ordinance it's where it belongs under your ordinance it's person appropriate there is no affirmative obligation on the applicant to come up with views and mockups and depictions to
prove that outside of complying with the ordinance requirements and that's what's that's what's being asked of this applicant the same is true with kind of uh nebulous subjective UND delineated historical
considerations again as I've as I've pointed out before there are many tools available to to provide protections and requirements and standards with regard to Historic properties this this town has a very active historic preservation commission they're very familiar with what those tools are and you've used
some of those tools in town designating specific sites as historic landmarks designating certain areas as historic districts this property is not a landmark and is not a district it's referenced in your uh historic preservation element of your master plan
as potentially historic but that has no regulatory effect the applicant doesn't have to show that it's somehow designing its its its facility in a way that's compatible with a historic area or a historic place that's
the kind of due process protection that all applicants enjoy and deserve they need to be able to understand going in what the rules are what the requirements are to be able to determine whether they apply or not in general good planning considerations the cases are clear uh do
not satisfy that standard um so here we are again a half a year in we're about later on this evening to hear uh requests for the board to consider and talk about and ruminate over Zoning Board of adjustment
applications with regard to different properties at different points in time planning board applications from years ago on different properties a settlement agreement that doesn't involve this property which is only relevant for Purp purp of trying to paint the applicant as
as bad people just as simply an ad homonym argument that's not relevant to this property this application before this board that's it's exactly why the ml has the time limits for taking action
is to avoid requirements and endless recitations of Superfluous information that this applicant's been trying to resist from day one so we've granted many
extensions but C at it comes a time when you know enough is enough and the applicant is pretty much there there's as the board is really very well aware there's a very long and very unfortunate history of litigation involving the town and this and this particular applicant
um they've come and tried to pursue these proceedings trying to be reasonable trying to approach it with an open mind and open ears and I think they've demonstrated those efforts in a number of ways um at the end of the day these folks
just want to worship they want to worship the way that they have been literally for thousands of years and they've repeatedly shown a willingness and a dedication to fight to protect that right I have absolutely no reason to believe that that's going to stop
anytime soon so with us being a half a year in we're looking forward to trying to wrap up our application and proceed in an efficient way with facts and issues that are within the relatively narrow scope of this board's jurisdiction in order to
try to reach a decision so that is an extraordinarily long-winded way of saying we don't intend to submit any more visual depictions okay uh if I may to to that effect I I still want the request to stand there were certain claims that
were made about shielding and screening and I still would like to know a little bit more about the noise reduction that's coming from the landscaping that's going to be in between the residents and the house of worship so even though it may not be in
our purview to deny an deny an application I do think that we do have enough grounds to request that we have these different views um and actually I still think the landscape
architect would be very beneficial there are several people up here that have questions about it and we're trying to make this transition for our community as gracefully as possible it is a huge change for the neighborhood it
is one of the I think it I don't know when the last house of worship was built in this town so it's this is a new thing for the town as well we're trying to keep the residents in mind we're trying to keep you in mind
but in order to do our due diligence we need certain information so I would still ask that we do receive the different could you tell me what the name of the 360
multi-seasonal views what what is it called the the there's no formality to it I might have used the phrase uh 360 degree for season but uh but that doesn't there's no uh uh you've heard argument from applicants Council we may hear
different argument from different Council uh and but there's no a mandatory requirement that anyone provide a 360 degree for season view of anything in under the law even if there are variant there is variance relief but
if that's something the applicant excuse me the board wishes to see uh then you know certainly request be made from the applicant applicant make uh uh the determination whether to adhere to the request or not uh and you've heard at least argument as to why the applicant
uh uh contends they should not have to do that but one could always change one's mind or not or not thank you thank you Mr chair uh so I think that brings us to Andrew right and and if I may Mr chairman I I uh we did
at least we do at least have a list of those who did ask questions I do recall a couple of individuals too literally uh who asked to question uh Mr vishio when we uh ran had a time so to speak the last evening that we were here um before
we go there and and notwithstanding Mr lavine's um opening uh I'd be remiss if I didn't ask nevertheless right now and I'll ask again at the end of the evening if I have to uh that as we stand or I
sit uh the board uh currently has an extension of time to act from the applicant till tomorrow if I recall correctly um double check me I March 19 next meeting it was not here so two weeks 14
today's the 5th I'm GNA do the math 19th I know and so that would be a request on behalf of the board for an extension of time to act until at least March 20th yes granted thank you counselor and thank you
applicant um I'm sorry bear with me one second okay the um and then so we do have two individuals as I recall uh and we do have the list of those who have already questioned uh to ask Mr vishio
questions based on his testimony at the last hearing almost thank you Mr chairman sorry and that and again as everyone's heard at nauseum so why not say it again uh each time a witness testifies the questioning is only on the
new testimony not old testimony and not something that they did not testify regarding okay I'm Ted coin and Short Hills I just have a question uh for you Andrew um the traffic study did you
include any sensitivity analysis in your in your analysis you know if the uh day schol and I wanted to focus on the day school because that's really going to be a big part of the uh activity here um what if you know that day school reached uh you know its capacity which could be
you know three or four times the number of students that I think you probably ran your ran your test on so I just want to know what number of students did you include when you ran your your test and if you did do any sensitivity analysis if the uh if the number of of students
could be a lot greater and consequently the course bying track would be higher so two questions Mr Vier you might need a microphone might be going through the battery issue again but I don't know that seems to be a malberry push that we
circulate every meeting there you go safer think we go works we looked at the daycare operations in Fashions one based on the size uh or the floor area dedicated to
that particular use and also what we anticipate the licensed capacity would be so we did not say average attendance we did not say well there may be 10%
absentee rates we ran the numbers based on the licensed capacity compared compared that to the size of the daycare component of this use and we ran all of our analyses based on the higher of
those two ways of running our calculations what were those numbers what were the number of students that you then assumed 72 you said assume 72 students correct your analysis correct and did you account for the uh the classrooms
upstairs that could be convered into you know take care of use as well no you did not that's not my understanding of what those classrooms are intended to be used as well not intended but they could be if there was a demand if the demand is there they have the capacity to increase
that that number my understanding is that the applicant has Pro presented architectural plans indicating that 5,261 square F feet of floor area will
be allocated to the daycare center should that number should the applicant desire to expand the daycare center I would have to defer to Council on what their obligations would be uh with
respect to approvals that may or may not be needed before this board um but that is uh what the uh application documents have presented thus far okay if you did see a
traffic increase a corresponding traffic increase to added capacity say double or triple that would the congestion resulting from that result in Greater time delays not just in a linear faction but more in an exponential fashion in your in your delay time delay
calculations I don't have any reason to think that the numbers that we're utilizing are under representing what the traffic generation of this that particular component of the use uh would
generate it was it was hypothetical if the you did end up with doubling the the the number of capacity of students would that result in not just a linear increase in the traffic delays but in more of an exponential one just a question of how you do your
work if if the size of the daycare center increased there would be uh an Associated degradation uh of uh or worsening of
delay associated with those trips but again that that hypothetical scenario is not before the board okay well the board may want to consider because this that might be on the argumentative side okay I'm sorry I was just thinking
but right but now the next question I don't I was just wanted to bring up that point that you know considering that this is a long range project points would be on by testimony in the public comment period comment great thank you thanks lot and if I could just to kind of address your point uh sir was there not
a stipulation with respect to capacity if I recall yeah that's exactly what I was going to remind the board of that um you you um Joe had actually recommended um that in order to kind of keep uh you know a finger on the pulse of this situation uh because you know any any
approval would be uh relying on the traffic report and the numbers and the projections that we had submitted uh initially we were thinking in terms of student population and his recommendation was it would be easier to monitor it be easier to check easier to enforce if it were tied to square footage that was devoted to the use by
the way you say Joe you're referring to Mr Fishinger the board independent traffic consultant correct yes thank you spend a lot of time together we just get too familiar well that's yes for the record of Right View engineering that's correct um and so we
went and had our architect calculate that number uh down to the square foot indicate uh on the plans uh and actually had s submitted suggested uh condition of approval language that would uh acknowledge that we'd be limited to that
amount of square footage devoted to this use and if that were to increase that um you know we would have to get updated traffic information and have it submitted uh for review and approval by um the board's engineer and I think the zoning officer as well if I recall
anyway in anticipation of that issue so that it couldn't just have rampant change and wonder what there would result in an adverse traffic impact Mr Warner I did you get to finish your question previously or I this I didn't come tonight I just had one quick
question that I didn't get to I'm sorry you didn't come you didn't come I didn't get to ask this question last time may I ask it yes or no that's to the chair Mr she was she definitely was here and asked a series of questions I don't know why I think she's conceded
that she's asked ask one two quick questions two question more questions it's really fast discretion of the chair want upon his testimony yes that's it yeah so um first question is you did videos toor name an address again oh Christine best
15 fairfi Terrace Short Hills did you you you obviously monitored the traffic to make all these un um fact based statements um do you have a video monitor monitoring that you provided to the traffic engineer did they actually see your raw data from a video
perspective that's a question for them no I'm asking did you give them the broad data I provided them the data but I can't answer whether or not they viewed it no I wasn't asking that I said' I think we got it g if you gave them the Monitor and you said yes yes
okay it wasn't your calculator dat was the actual footage okay that's all I wanted to um so the other question is you said that you didn't do a visual modeling of the um actual parking lot space and I wanted to understand just quickly um how you calculate
how the flow is going to go on internally on the property you know and then exit out like did you just use theoretical math equations or did you do an animated flow I just wanted to understand how you came up with those calculations of the flow out of the property like after service for
example we used the ambient traffic patterns that exist today and distributed the trips in and out of the site based on those volumes thank you so much I don't know if the second person
who was here last time is here again uh who wanted to ask a question apparently not we have one more question can I sure and just for clarification you did not ask a question of this witness at the last hearing correct no sorry I haven't
been here for a while okay and and uh Mr leine uh no objection uh to this member of the public asking a question of Mr vishio based on his testimony at the last hearing I'm not fully aware of the testimony from the last hearing but I did have a question for the traic with
the chair's permission you we'll find out uh go ahead I think the chair is permitting it yes Mr you're okay thank you thank you without objection sure uh my name is Alena Mahi I live at Park
Circle uh my question for you is as a resident exiting on to onto Old tro Hills Road and oftentimes making a left-handed turn exiting from Park Road has been a very challenging exercise and
the current plans Envision a four-way intersection now with the erress of the parking lot it's challenging enough to manage the traffic flying down all TR Hills Road as well as up on trill road
crossing at parsonage and now adding another intersection um by the way I've been hit you do you have a question yeah yeah yeah um my question is why was the decision made to move the exit onto ult Hills Road at that specific
location and it was initially further up um I'd also be curious as to why we haven't consider it hasn't been considered to do it onto parsonage where you don't have the same speed of traffic anyway those are my questions so I
um uh I I testified to this at the at the last hearing but um the the intersection of of old short Hills Road and Park Road we are calculating using default values there to be acceptable levels of
service and delay on top of that I personally watched hours of video of this intersection and timed the amount of delay for vehicles exiting Park Road
onto Old Short Hills Road um I found that the average delay was 19 seconds for vehicles exiting Park Road
onto Old Short Hills Road um our calculated values using uh you know the default inputs is 28 seconds so our analysis which has been reviewed by the board's
traffic engineer shows uh generally acceptable levels of service per industry standards and on top of that real world data and meticulous observations shows that the actual
values are even less than what we're showing in our report have you measured the time it takes to make a leftand turn and any other intersections along ID Hills Road no other than parsonage Hill Road and
and how much and Park Road no and how much time do you give a vehicle to make a turn a leftand turn out of that intersection personally I have to speed and gun to get out of that intersection most times I'm we have to be careful not to testify
some there's some testimony inherent in questioning but then there's some that really doesn't have to be there sure I'm sorry could you repeat the question the the question is how much time do you provide a vehicle to make a left-hand turn like what's your average
window of cars y you know not passing on either side depends on the geometry of the intersection um for a T intersection it's on the order of 6.5 seconds um of a gap necessary in traffic
to perform a left turn for a four leg intersection that goes up slightly I want to say the number is approximately 7.1 but I could be off by a tenth of a of a of a second year did any of your
calculations include oftentimes what happens at that intersection is there's a backup of vehicles waiting to left turn onto parsonage and so that's oftentimes the allowance of cars to get out of Park Road can you quantify how
often that was a a factor in the maneuver yeah I I noticed an an an extensive queue one time during the um my manual delay calculations and that
was taken into effect in the numbers that I just testified to can you remind me just because I I don't recall what was the specific date of measure sure I'm gonna have to go back it was a few reports ago while you're looking for that just
because I think it related to one of the questions can you correct my recollection if it's not correct but that intersection was moved to be directly across because that was deemed safer correct correct that was thank you I I missed that question but um yes that
was a request of the board's traffic engineer to create a safer condition as the initial orientation had the uh the the driveway and Park Road offset from each other which
um which some uh uh motorists could uh find complicated due to the offset nature of that intersection so where we have the driveway now was a direct request of the
board's professional um the traffic volumes Wednesday November 20th 2024 from 7 AM to 7 p.m and I I would
like to take this moment to again state that that was not the week of Thanksgiving as has been misconstrued in the past and asked before but was there a reason why an exit for the primary exit
wasn't considered on parsonage as opposed to ultra Hills Road where the traffic seems to run much faster in both directions there are exits on both roadways and is there a primary exit versus a sort of secondary exit in terms
of the direction of traffic no one driveway has not been identified as Prim primary or secondary thank you very much thank you any other questions from the public only pertaining to his testimony
from last meeting so I was not in the last meeting but you can tell me if it does not pertain and then I walk back so I'm uh with sing resident of sh your name spell it rsh Singh r t e s last name Singh s i
n GH and your address uh 33 Jefferson avue so my question is how did you decide it will only be 40 people for this study 40 and that's my understanding that is 40 here versus capacity of 300 for the
building traffic studies for 40 I'm not sure or where we cited 40 people anywhere in our report so what is the size of uh what traffic study is done for how much
incremental costs of vehicles so we projected the amount of traffic that would be generated by this development using both components of what's being proposed uh house of worship synagogue and a daycare center we used
industry standard methods to project the amount of traffic and we combined those two and added it to the roadway Network and that was how we conducted our
analyses um the number of trips entering and exiting the site is different for every Peak hour that we studied we studied five different peak hours what is the maximum peak hour uh that you
haven't exit exit at that time 96 total trips within how much time is that Hour 1 hour so my question is more if the capacity is 300 why only 96 trips in
that one hour oh what if the capacity of the synagogue is more people so that's our analysis is a typical weekday morning peak hour the
the rabbi testified that he's he would like to establish morning prayer on weekdays um I believe he testified on the order of 10 to 15 people
is hopeful would attend that that is that falls generally within the values that Institute The Institute of Transportation Engineers projects for a synagogue of that size in fact The
Institute of Transportation Engineers are are much higher when you consider the combined volumes entering and exiting the site in a single peak hour which is
probably unlikely um it's probably people will arrive pray and then depart um but we did not use the estimate of the rabbi to perform our
traffic analysis we used industry standard rates based on the Institute of Transportation Engineers trip generation manual for a synagogue of this of this size and that size is 300 or is that
size what is the number that is used in those calculation floor area floor area 21,000 squ ft that's the P yeah that's the combined floor area of the building yeah
15,776 square feet are dedicated to the house of worship the synagogue so 15,000 was what was used to determine this number precisely okay thanks that was my question sure thank
you thank you any other questions from the public any other questions from the board have a question is there any threshold for a level of traffic that requires the installation of a traffic
light I mean be helpful if there was like a traffic I know I have a tough time from is there any I mean do you guys come up with a threshold where you say this intersection Need A
TRU the it it's extremely descriptive um by the Federal Highway Administration publishes something called the manual on uniform traffic control devices and there is a chapter
within that guide book that is extremely prescriptive about the conditions that need to be in place in order for a traffic signal to be warranted there are eight or nine traffic signal warrants that are applicable to any particular
situation um and the um we have not performed the analysis that is performed to take a look at at all of those warrants is typically called it traffic signal warrant analysis we have not performed traffic signal warrant
analysis however I have performed very preliminary Capacity Analysis uh uh uh models to see what the impact of a traffic signal would be at
this location um I testified to this at the last hearing um but the results that I found where a traffic signal were to be constructed and installed at this intersection alone without any improvements would significantly
deteriorate levels of service and increase delay for old Short Hills Road currently Northbound and southbound traffic on Old Short Hills Road uh has is a is a essentially a free flow
condition right they they don't have to yield to anyone other than Northbound left turns from old Short Hills Road to parsonage Hill Road uh so inherent to the construction of a traffic signal traffic on the mainline would be stopped
for a certain amount of time and those cues would build and there would be delays associated with that um so a traffic signal alone in my opinion based on on the preliminary analyses that I've conducted would not be a pan seea for the
experience that that residents uh uh um experience on the day-to-day basis here do you think if they installed a traffic signal it would be easier for people in park to get out of their street on Park yeah
significantly harder unless there was striping uh that indicates that drivers are to not block the Box in front of Park Road because what would happen with a traffic signal is as soon as that traffic signal
indication if you're traveling Northbound on Old Short Hills Road and that traffic signal indication turns red you're going to very quickly see a que build up towards the South that que will very frequently if not every single
cycle during the peak hours Block Park Road the way to mitigate that would be to stripe do not block the Box markings so people would be able to get in and out of Park Road um I hope that answers your question
with your analysis on the traffic signal um are you taking into account just a standard traffic signal that's time based or to my understanding that there's smarter traffic signals out there that can sense whether there's cars you know perhaps at one of the
intersections and so you know under normal circumstances if no one's exiting the property and and no one's trying to come to park traffic can flow freely but when a car pulls up then you know it can kick off the algorithm uh that caus it
to change so was your analysis just based on a standard signal where you made your determination that it would actually make conditions worse or did you also look into well if we used one of these smart signals what would that yeah it it the
analysis was for an actuated traffic signal and when I say actuation I mean sensors like you said that detect the presence of vehicles on a minor approach uh that allow the traffic signal controller to decide whether or not to
give that minor approach time what would happen during the peak hours is that there would essentially every single cycle be a vehicle waiting on Parson and chill road to that would actuate the
signal and the signal would give Parson and chill Road time which would thus stop old Hill old Short Hills Road traffic during significantly off peak times um or overnight periods you might see
situations where the traffic uh is only on old old Short Hills Road and there's no traffic on the side street in those cases um the main line old Short Hills Road might see a very long consistent
green without giving any green time to Barson aill road but that would be off peak during the Peaks even with a smart traffic signal as we said that side street is going to be actuated every single cycle be clear the side street
you're talking about I'm talking about Park and then the sounds like you're talking about being I think I perhaps misunderstood the where the traffic signal you're suggesting would be
located so creating newway intersection if you had the traffic signal at that new four-way intersection what would the impact be there with that improv service for presid Road and you know exiting or entering the
so at the intersection of old short Hills Road with parp Road and the new s side driveway going back to the the discussion we just had about traffic signal warrants that intersection would be far below any threshold that would
uh that would uh warrant a traffic signal um and again I think that even if the side streets whether it be Park Road or the or the side driveway were actuated relatively
infrequently it would still stop traffic on the mainline and being Mainline being old Short Hills Road and uh result in extensive delay and queueing I did not perform the so we have
a I'm sorry can the board members move the mics closer very hard to hear and it's probably harder for the public yeah I just want to know since we have we're building a facility that's going to be servicing children right isn't it better to have the traffic slower I mean you're
saying well you know we're going to install a traffic signal that's going to slow down the traffic but we have kids right in these cars don't we want to slow down the traffic there are many ways to calm
traffic installing a traffic signal for the sole intent of creating extensive delays is not a traditional way to calm traffic traditional ways to calm traffic
are lowering speed limits and and doing so with traffic calming measures like Lane narrowing speed feedback signs on local roads speed humps
um measures as as um uh extensive as roundabouts uh there are there's a whole uh uh concentration within the traffic engineering field that focuses
on roadway safety um and traffic cing and uh installing a traffic signal just to essenti artificially create delay is something that I think would cause more
harm than good because it might lead to driver frustration um and and erratic Behavior okay you don't think it would it be safer for a person with kids in the car to have a traffic signal to L
the left from paron Road on to Old shills Road would that be safer or do you think be less safe are we talking about a traffic signal now at Old Short Hills Road and I think that you would have to
weigh how significant the delay is and the queuing is on Old Short Hills Road with what the benefit would be to the side street uh I'm not I'm not when I say increased delay as a result of the
traffic signal uh I'm talking about significant amount of delay that would likely result in um significant push back from not just the immediate vicinity but the 20,000
vehicles that travel along Old Short Hills Road um on a a of an accident would be increased or decreased if there was a traffic store it depends on the type of Crash that you're talking about if
you installing a traffic signal does not in and of itself eliminate all traffic crashes it tends to increase rear end crashes um it also tends to decrease right angle crashes and left
turn crashes based on the data that we have right uh right angle crashes and left turn crashes are relatively infrequent at this location we've conducted an extensive safety analysis at this
intersection so um we started that effort by submitting an Oprah request to the township for crash records at this intersection from 2015 to
2024 um the township responded with only 20 reports um for representing 19 crashes which which I as a professional thought to be on the low end so what I did independently was go to another resource
called Safety Voyager which NJ doot publishes and I crosschecked using that resource and the data that was provided for To Us by the township I found more crashes
so when I provide these numbers I I I I would like the board and it's professionals to know that uh I vetted these numbers extremely thoroughly um and uh the numbers that uh the amount of
left turn right angle crashes is still extremely low only uh 10 crashes involved a turning vehicle over the course of nine years so about
1.1 per year at this intersection um of the 42 crashes that we found only five resulted in an injury which equates to 12% which is significantly lower than the injury rate for crashes at unsignalized
intersections uh along County roadways throughout the state the Statewide average for an intersection of this type is 28% of crashes resulting in injuries so the number of left turn and right
angle crash is that that you would be hoping to prevent with the installation of a traffic signal is already low has perform for the additional
traffic from the facility I did not perform it's not performing that's not projecting what the crash rate would be in the future with the development correct any other questions Noe Mr lean can you please
call your next witness yeah absolutely Andrew thank you sorry can I should we ask our professional he con with everything certainly Mr Fishinger please thank you good evening Joe Fishinger a bre
view engineer engineering um generally speaking everything Mr viio said is correct I don't didn't verify all the crash numbers that he quoted verbatim but they're consistent with my analysis his references to the mutcd and those
requirements is correct everything he said is consistent with engineering standards the one thing I would add just as a benchmark and there are other factors than just crashes but for example one of the those nine s traffic
signal warrants is with certain volume threshold they want to see you that you have five crashes in 12 months that are correctable by a signal and those are the right angle and left turn crashes and Mr Visio is correct that generally
speaking you're trading installing a traffic signal trades right angle and left turn crashes for rear end crashes and when we do that it's really it's the lesser of two evils because as you can imagine if you get
hit in a right angle crash you're hit on the car door there's a lot less car to protect you if it's a rearend crash it's less likely to result in an injury because the cars are better designed to absorb that impact front to back than they are if
someone's hitting you from the side so the whether Mr vishio added a crash or subtracted a crash the numbers that he's quoting aren't even close to the crash thresholds that the federal government
requires to Warren is safe thank you Paul raise your you sore from testimony given using be the truth all TR but the truth I do your name for the record spelling your name please it's Paul Ricky R
ICI thank you oh could you uh just acquaint the board with your educational background and professional experience please sure I'm a licensed professional planner in the state of New Jersey I've been licensed since the year 2000 I'm also a member of the American Institute of certified
planners or our national certification I have a master's degree in city and Regional planning which I received in 1997 from Ruckers University I'm currently a municipal planning consultant for six towns uh I also testify regularly in front of board
boards I've been qualified in over 250 boards throughout the state including Milbourne speak a request Mr Ricky be uh recognized and testify as an expert in land use planning if I me yes your license is current it is yes please as a
planner thank you Mr chair um so PA I take it you're familiar with the application is before the board I am yes and have you had an opportunity to review the the ordinance here in mbour and the M master plan I have yes um have you formed an opinion as to whether or not this application is a good uh
candidate for conditional use and site plan approval sure and T typically I I speak pretty freely but considering the context of this application my testimony is pretty limited but I I did provide did give it a considerable amount of thought so I
want to make sure my thoughts are are clear on the record as part of this application so I might rely on my outline a little bit more than I than I traditionally uh do um um so I was really called to they asked me to look
at this application and to really form it a planning opinion as to its appropriateness typically when I receive a call like that there are variantes involved and traditionally I would speak to those proofs to justify varant relief that does not exist as part of this
application that review the professional reports through your planner I've not see anything from your zoning officer uh from your engineer that indicates that there are any variants is required so my testimony moves forward based on the fact that no variances are are are
required again I know this has been a long process but again a little bit of background we're in your residential 3 District which permits single family homes and conditionally permits houses of worship and schools subject to the same standards radio antennas are also
conditionally permitted um generally I mean I'm going to come to this conclusion uh several times but I reviewed your zoning code your master plan and again your professional reports and it's clear that this application results in sound land
use planning uh we have an application that meets all the conditional use requirements for houses of worship and you'll hear this from your attorney and your planner but when a conditional use meets all its requirements it's the same as as a
permitted use and is treated the same way under law and these conditionally Ed standards include proper Street Frontage minimum lot area of three acres minimum lot Frontage maximum lot depth
proper location of access lock coverage yard setbacks buffer to residential user zone parking setbacks and Building height again here we have no variances
so there's no need to commonly address the positive criteria traditionally I have to address how this advances a purpose for the municial landage law and then how these variances can be granted largely depending on the type of variance without a substantial detriment
to the public good without a substantial impairment to your Zone plan none of those requirements exist as part of this application because we meet your code there are no substantial negative impacts to the neighbor in Property Owners or the public good as a matter of
law um and I also found as part of this application um this has been an application that has been responsive to the board's public concerns regarding many aspects which include but are not limited to storm water management aspects uh believe I've heard the
testimony that a less engineered more aesthetically pleasing design with natural rather than man-made features was specifically designed with the vegetated filter strip the Landscaping there was a removal of the Basin with the that resulted in less tree
removal um the laking clan is also uh expansive in my review 83 deciduous trees 86 evergreen trees 150 shrubs on a 3 Acre property at substantial planting in my opinion the relocation of the trash
enclosure relocation of the playground including the addition of ballards to protect that PR on um the applicant addressed all comments of the prote reports we already heard from Mr LaVine tonight how the driveways previously were relocated agreed to a screening
fence I think we agreed to a a noise test after the fact garbage pickup after 7 AM 7 am and I I may be missing something but that largely summarizes what I heard uh it it's also important to
recognize while the use is permitted um under law it's also an inherently beneficial use and that's a use that promotes the general welfare of the community as a matter of right so even when religious uses are
not permitted within Municipal zoning regulations their negative impacts are viewed under a more relaxed standard while these more relaxed standards do not apply here it speaks to the significance of the proposed house
of worship within the courts and under our constitution so to leave my outline for a second if this use wasn't permitted in the zone and it's an inherently beneficial use as a matter of law it's considered to be
appropriate in any zoning District within your community and it would automatically meet the positive criteria under the law because it's an inherently beneficial use regarding traffic uh a planning board has no
authority to deny a site plan because of its anticipated detrimental impact on off trck conditions off track traffic conditions planning for traffic is an exercise of the zoning power invested in the governing
body the planning board may go no further than to conditional approval on one improvements to ontract entr interest and exits and contributions to off track improvements made NE necessary by the onrack development and that's
from the North Brunswick case there's also the Rupa U freedom of religion as this board is probably heard a number of times is protected under the US Constitution the federal government
enacted the religious land use and institutionalized persons act or Lupa of 2000 after hearing testimony that land use and zoning regulations often burden religious institutions seeking to
exercise their faith faith excuse me salty dinner tonight as protected by the US Constitution one of the ex purposes is to protect religious institutions from imposition and implementation of land use regulations that are unreason
unreasonably burdensome on the exercise of religion in summary the ACT sought to limit rights of government and government mental entities to impose a substantial burden on religious institutions and prohibit government
entities from totally excluding or unreasonably limiting religious institutions on less than equal terms with non-religious institutions so when you see your code standards are the same in your code for schools and religious
institutions in this Zone also under our loopa a conforming application cannot be denied without sufficient justification I also reviewed your master plan the specifically your 2018 master plan reexamination report speaks
to your ordinance regarding houses of worship ordinance number 241 17-13 and it's regarding conditional uses of house of worship schools and residential zones the ordinance was intended to amend the provisions of the Land
Development ordinance to modify the conditions set forth for conditional uses of schools and houses of worship and just to point out when I see that- 13 that tells me that that occurred in 2013 that ordinance change so just to repeat the ordinance
was intended to amend the provisions of the Land Development ordinance to modify the conditions set forth for conditional uses of schools and houses of worship and residential zones so they are consistent with both sound planning principles and applicable case law and
also to adjust the parking requirements for places of assembly schools and houses of worship accordingly in this regard the basis for the existing zoning ordinance was to ensure that sound land use planning occurs associated with religious land
uses so it's clear that this application advances the Township's master plan as well uh finally as a planner I'm aware of the the piso Manon case which was mentioned by um our attorney the key
findings of that case are the planning board's Authority in reviewing and application for site plan approval is limited to determining whether the development plan conforms with the zoning ordinance and the applicable provisions of the site plan ordinance if
the application meets all the requirements of the zoning ordinance and there are no issues pertaining to safety the board must approve an application even if it doesn't feel feel right and this is necessary to ensure that the land use process is
predictable so in summary uh my planning conclusions are as follows because this is a conforming application there are no substantial negative impacts on the positive side of the application the general welfare
associated with religious uses results in significant public interest and the applicant has also satisfactorily demonstrated that the property can accommodate the proposed development in the context which is in it is placed so very limited
testim any questions I do have a question can you just define Insignificant impact in INS What do you mean insignificant you you stated that well there's no significant impact but yes uh as a matter of law when you
testify for a variance application I need to testify that there'll be no substantial detriment to substantial is what the term of R is substantial detriment or substantial impact so it's not significant substantial as the term and by by a matter of speaking if if
your zoning allowed a 100 story building in this Zone and that resulted in shadowing of these properties nearby because your zoning allows it as a matter of law that would not create a negative impact to the property owners because it's
permissible by zone so because this is a completely byright application there are no significant impacts nor do I have to provide testimony even considering significant impacts because no variances are required I have a
question if we look at the conditional uses and in particular so this is uh 6062 D1 J I'm sorry 6062 D1 J yep I believe just check that
D is a d correct yeah this is the definition of conditional uses this is what we're talking about so J specifies the minimum buffer to a residential useful Zone Zone shall be 25 ft now I noticed I'm not a plan so yeah bear with me I noticed that every other specification of distance here either
goes by the term setback or a frontage or a depth but here we have something called a buffer which I then search the rest of the code and said well okay I understand what a setback is that's just a raw distance measured on a map the frontage is just a raw distance measured on a street and so on but
buffer is a unique term the only other place I can find buffers to find in our ordinances is in uh 69.3 and it says there now this specifically applies to a whole bunch of commercial zones and business zones but
it is defining a buffer and the reason I think this might be relevant is because we're converting the resid IAL lot in this neighborhood through the conditional use into a non-residential lot so 69.3 says whenever you have a development in
any one of these zones and I won't read them all out but they're all commercially related in which an application for development a buts a residential zone or use a buffer shall be provided no development is permitted in the buffer area so there's a definition of buffer when you have a non-residential use abing a residential
use so that's a very on Preamble my question is do you think all the conditions in there that apply to a buffer between a commercial Zone and the residential Zone should also apply to the buffer between this house of worship
and the adjacent residential zones and if not why not okay well first to answer the question this it was already determined that by your planner at this this provision of the code does not apply so relying on your own professional these provisions of the
code do not reply to apply to us I I do agree with you that the code is is not clear regarding buffers overall the only requirement of the applicant per year code is to have that 20 foot setback and I
mean 25 foot buffer something yes um but there's no standards for that the applicant is responsible to comply with as to how that area is is filled under your code because there are no requirements for that buff
um just thinking abstractly codes aren't perfect I represent towns codes aren't perfect and you have to think about also that when you apply this code you're applying it for all institutional uses in a residential district um there could
you can argue and you know that in residential districts churches and schools were considered to be C compatible they weren't consider considered to be uh a land use that was going to be negative particularly on 3 acre lots these are very large Lots so your code
required 25t and specifically only applied it to where the buffer provision was it only applied to commercial areas so um I can just speculate but um your code only requires that 25 foot buffer
distance to the applicant and that was determined Again by your own profession no I'm I'm curious though because you mentioned buffer setback but it explicitly says a buffer it doesn't say a setback setback seems to be just a raw distance buffer seems to have some other
intent of the use of that area and so I'm wondering whether these other conditions are all very reasonable for example fencing installed within the buffer should be set back from the property line at least 5T landscape screening should be provided between the fence and the property line budding the residential use or Zone um trees and
shoves shall be planted between the fence and the residential line and should be planted in the zigzag pattern not more than 6 ft apart at Center in the remaining buffer area solid and continuous continuous landscape screen should be planted etc etc um all loading areas and parking lots should be
buffered from ajoining streets by one of these buffers not a setback but a buffer so seems like that's a very reasonable requirement it's been imposed on Commercial zones and I using your convention I see it's- 16 so I guess it was 2016 which is three years after the previous one so seems like this was a
later introduction that probably should have been back applied to the conditional uses to say you know one small footnote buffers as determined by this uh other section of the code you think that's a reasonable interpretation
um well respectfully so sir um this is not a requirement on the applicant per your code and again as indicated by your planner if you're asking the applicant whether whether we consider those Provisions that that's a
different question that's my question are you as a planning profession do you think that in this use it would be appropriate to consider those I'm not saying do you think they're legally required I'm actually asking you as a professional planner do you think it would be appropriate well there's Provisions in that buffer ordinance that
personally I don't think would be a better alternative by way of example it asks for a double row of of evergreen trees right and and that's if anyone's landscape around this that's a alternating row of trees maybe staggered
every eight or so feet and that creates like what I would consider an a not unnatural look in in landscaping features we don't see um patterns drawn in perfectly straight lines right naturally um and that would be all Evergreen the
applicant has proposed a mix of Evergreens and deciduous trees so in one context applying a standard in that code in my opinion would result in a less attractive landscape buffer feature than what's being proposed today that's fair
I wonder whether those some of those features are designed to protect the adjacent residential property from the headlights of vehicles coming in because if we look at uh let's see all loading areas and parking lots shall be buffered from adjoining streets
and if you look at the definition of the requirements on the trees that need to be buff planted in the buffer area no less than 20 ft high at maturity that's fine but the lowest branches shall not be more than one foot above the ground now to me that one foot above the ground
implies well we need to buffer low down as well as high up buffer in a general sense here not in a technical sense and therefore that's a way to protect the adjacent residential property from the headlights if you look on the plan there's a strip of parking down that side which are all at the top of within
25 well very close to 25 ft all the cars pulling into here the lights are shining into navh the property seems to me that the requirements on those landscape trees rather than just being an attractive feature are actually designed to provide some sort of um what
restriction okay are you referring to the parking spaces along the west end West pointing list yes one of the uh conditions uh of approval that I offered up last time and reiterated this evening is is to maintain a six foot high solid
uh fence along that Western uh line and maintain it so that it's an effective uh visual screen but in in that regard if if that fence May encroach into your front yard setback at six feet that may create a variance so it would have to maybe be staggered from four to six feet
not to create a variance but my understanding is if you're suggesting that that landscape Edge is not providing that level of buffer to stop headlights I think the applicants agreeable to to to modify that area I think yeah that's what I'm
suggesting seems like we want to consider the same considerations that went into developing 69.3 3 years after the conditional uses were defined um would make sense to consider how they should have been back applied in this
case rather than just I do recall the earlier meeting where it was asked if they would repair the fence the initial answer was no they weren't going to repair the fence even and then next meeting we found there was a change in that position where they would repair the fence so I think if we sort carry
that a bit further forward it's really that buffer with that Westerly neighbor that's going to suffer the most from the traffic coming in if if you ask me if I think it's reasonable to stop headlight glare on an adjuring property I I think that's a reasonable request
okay follow-up question is there a do you think there's any interplay between the required setbacks and the the characteristics and design of any buffer in other what I'm driving at is here for their conditional uses their stringent setback requirements that
don't apply apply universally throughout the the uh some of the commercial just clarify I'm sorry Michael I'm not really following you just do the required setback of the principal structure from the uh lot lines greater rather than smaller have in your view as a planner
any uh influence on the nature of the buffer that would be appropriate either its density it's it's its height that sort of thing uh clearly the further a building is from a a property line right less noise um if you look at items in
perspective right the closer an object is to you the larger it looks the further that object is away the smaller it looks so clearly yes so I I I have a question so going back to the DRZ 6093 buffers so while I understand that
our town planner may have um opined that he doesn't believe this applies if we look at the actual text I think it's a little bit less clear so I have it in front of me um so section A of 6093 says
when the property of a non-residential use which this property is it's a non-residential use a multif family housing development or any combination thereof above the R3 R4 R5 R six or R seven zones or a residential use on the
side or rear a strip of land should be designated as a buffer so indicated on the plat measuring either 20% of the average width or depth of the property or 50 feet whichever is less now I think that or is is really key here
because while it does clearly delineate certain zones it also seems to say or if it is a non-residential use and on the other hand you have a residential use on the other side or
rear then the offers do apply so to me that seems kind of unclear now you're a professional planner how do you interpret that okay and you know in this case I would respectfully disagree sir because
because a conditional use standard if if it if it's not applied to we wouldn't even have jurisdiction here we would be at the zoning board right so that's a very specific standard as to the buffer that's being applied to this land man use and and because your ordinance was
revised to specifically contemplate this use in a relatively recent period of time in my opinion that would be the prevailing standard that applies to this if you want to say hey um you know we have no standard for
buffering we'd want you to consider maybe some of these other Landscaping features I mean I I think there can be some interplay with the applicant in the applicant can potentially entertain that as a as a series of Goodwill but that's really Goodwill I believe because it's
it's clear that it doesn't technically apply I think it's clear that your your ordinance was very clear that the the buffer requirement in the conditionally use section should be 25 feet gr do you wanna based on my read of this I don't know if that's all that
clear and I don't know who the judge of that should be quite honestly you know whether that that be you or planner you know we don't know the intent but the way I read it I think you could see it both ways if I may Mr chairman the
uh the professionals that would opine with respect to same uh in this quasi judicial process that the board would rely on or choose to
rely on if they so choose uh would be the attorneys and the planners uh in my opinion uh and in my experience and under the law so uh so you
have two planners thus far you might hear from more uh you have an applicant's Council we know of one objector Council you have a board ATT jorney uh the uh so uh those would be
individuals who I would advise you to entertain with respect to that interpretive issue as well as using your own judgment particularly if there's a difference of legal Andor planning
position but certainly that would be my advice I know it's fairly General and vague but we're hearing from one planner we've heard from our planner we may hear more from all of the above and other planners uh so onward given that setup
grab do you want to explain maybe why you felt that it didn't apply or or concluded and opin yeah because with all due respect our feelings don't dictate what we can and can not do in under the
law the uh and this board's jurisdiction is legally prescribed so my characterization and review of the text and my professional opinion is that 6093 the section buffers contains kind of a pample statement
which kind of sets up the parameters to which this section is applicable and it clearly states within and it lists all of the non-residential zones within the Township in which an application for development of buts of residential zone or use a buffer shall be provided then there's a series of subsections a
through F which detail and delineate uh those circumstances and the buffer requirements of each um the the section that Mr zmany was referring to is subsection a um so really that overarching opening statement kind of sets the parameters as far as where this this provision is
applicable that's the way that I read it C can you uh can you be a little more detailed and how that led you to include conclude if I understand your opinion correctly that it is not applicable to this appli sure
the opening sentence which I can read into the record uh 6093 buffer says within the CD B1 b2a B2B b2c you're going a little fast sure B3 B4 o R1 O2
O3 and CMO zones in which an application for development a buts a residential zone or use a buffer shall be provided no development is permitted in the buffer area that's the opening statement for this section of and the subject Li
is not in one of the aforementioned zones that you just stated that is correct okay I'm sorry I'm please continue U then the section as I explained uh contains a series of six
Provisions or standards um a through F which detail the buffer requirements um and situations where buffer requirements may be uh you know handled differently based based on adjacency or other use cases but um in my special opinion that
opening statement um sets the parameters and defines the zones to which the these buffer standards are and this property as located the R3 zone is not located within one of those zones defined in this section and can
you explain then why subsection a includes additional zones including the R3 Zone and why it is that the Preamble uh more General governs uh and and how what that more specific in
subsection a reference to R3 means within that context sure so the opening section for subsection a which states when the property of a non-residential use to multi Housing Development or any combination thereof AB buts the R3 R4 R5 R six or R seven zones or residential
use on the side or rear um it and it defines the the buffer parameters I believe this section is defining both the zones and the individual uses because just as we're hearing this evening there may be other uses located within residential zones the R3 four
five six or seven zones may contain a school or a house of worship or another use but the buffer standard is to be from that zone line not just from a use that may not conort as a residential use and am I correct then what you're saying
is while there's reference to R3 there uh uh the subject property from which a buffer must exist must be within zones CD B1 b2a B2B b2c uh B3 B4 o R1 O2 O3
and CMO which are in the Preamble the general which then you're saying governs the uh a through F the subcategories correct okay I wanted to better understand our planner interpretation
conclusion may just to round out the sentence because it's say or residential use on the side or rear um it's defining that because there may be a residential use that is located in a in a in a one of these other defined zones so um if it's adjacent to a residential use that
is in one of these non-residential zones there maybe conditions where that exists a pre-existing house that now has been reasoned into a non-residential district um the intent of this section was to maintain a buffer from that residential use despite the fact that they may be located in the same Zone District right
but but again your position is that the subject laot from which the buffer must extend so to speak must be located in one of those non-residential zones that are listed in the pre correct even though it doesn't explicitly state that correct I'm sorry M if you could speak
it to the mic I'm sure so even though it doesn't explicitly state that I mean did would you at least agree that it's perhaps not worded as well as it should be to make it explicitly clear I think to Mr richi's point there are always improvements that can be made in
m is I think that in this case Perhaps it is not that clear however I would contend that that opening statement does a lot of setup to define the zones and also to which it's applicable for applications for development so it it defines the parameters to which this poer situation
applies and in your opinion if I may with respect to a conditional use ordinance uh is there an a General understanding that if
a condition is going to apply to a use to render it a conditional use that condition in essence would have to be clear that it is applicable to that particular use in that particular Zone
to have the significant impact of rendering that uh use a conditional use that violates a condition and warrants and requires a subsection D3 use variance from the Zoning Board of
adjustment as opposed to a fully conforming conditional use approval from a planning board yes I would agree the conditional use standard um is really the higher level test that is applicable to this application in other words it have to be clear to apply so that if it
is unclear the appropriate interpretation is that it does not apply correct correct can I ask uh of our own plan of the pretty much the same question that I asked of the applicants plan which is the use of the word buffer in
conditional use is distinct in defining this distance it's not just saying that has to be so I want to my question is how are we to interpret what it means when we say buffer there to me the only indication anywhere in the ordinance is what we see in 609 three understand it
does specify a buffer that's half the width of the one in 60 9.3 but there are a lot of other conditions there that would apply if we interpret this as a buffer as defined in 69.3 so what I'm looking for is the definition of buffer
and I wouldn't be looking for it if it just said setback or distance or something that like was comports with everything else but it's a specific use of that term seems to be a term of art that implies more more than just a mere distance to the neighbor and I'm
particularly looking at things like you know even e in 69.3 says the approving Authority may consider the effectiveness of existing vegetation in providing the desired screening and may consider other factors which may alter the design of the buffer it's really speaking to the
fact that this buffer is designed to screen neighboring Residential Properties from non-residential use and and therefore it needs to have more to it just than a mere distance would you agree with that uh I would agree with
the characterization that a buffer and a setback are not equivalent of you know me uh measures or metrics uh to which you know the appc the application is to be reviewed I believe that a buffer um you know we do have examples or S related text I would say you know in
this section of the ordinance however this is not applicable um but a buffer you know in the planning you know profession is a space to be uh kind of protected andreen and provide for some of that separation uh you know with additional elements not distance alone
to provide some of that screening effect so um and I think that the applicant has provided some testimony related to that regarding the maintenance of the fence and incorporation of landscaping features um that can support um this characterization as a buffered area um
you know rather than a setback area as you as you've indicated in your opinion do is what is being provided in that buffer area now under the plan sufficient to achieve the screening goals that are specified in
69.3 I think uh you know as far as maintenance of the the height the existing fence to be maintained is six feet high um you know I think that a lot of these Provisions are to protect and mitigate particularly headlike lay other uh you know detrimental adjacency issues
um so I think at the six foot height and the incorporation of you know vegetative screening or you know incorporation of landscaping in this space um it's meaning kind of the spirit or the intent of the buffer area switch back to the applican planner uh are there any other benefits of this
screening in the buffer besides just headlights or light pollution well trees tend to soften out noise right would be a benefit as well okay and do evergreen trees do it filter out the noise better
than the uous trees or how does that look well I mean I I can't say uh I'm a expert in landscape planing but if clearly if there is a a material there deciduous trees drop their leaves if that material retains year round clearly
as it sound moves in a line of sight so if there's something to block that line of sight clearly it's going to provide some benefit so in in the environmental uh assessment or the Eis uh there was a statement for the noise study saying
that the noise preliminary primarily came from the streets and it was deadened by the vegetation on the perimeter but now we're including traffic inside the perimeter do you think the evergreen trees placed at the
back of the lot are sufficiently dampening the sound for the entire western side of the property well that's something that's outside of my it's my understanding the applicant agreed to comply with with noise per the state noise code and whether this was a
development application or not the applicate is is required to satisfy the state noise code so um at any time I'm not sure who regulates noise it's the county in in or is it the town have their own health officer at any time uh
the county health officer if it's the county can go out there with their deciel readings um and the applicant has to comply with that we have no we we we're required to comply with that and if I recall correctly the applicant stipulated to a
condition of a postto see noise audit uh as demonstrative of that compliance correct that's correct but as it pertains to buffers so there is no noise requirement necessarily for buffers but it is supposed to dampen the
sound so do you think that now with this added traffic that it provides the the current Landscaping provides sound dampening yeah has a sound dampening effect or could that be improved I I'm
not a noise expert uh the applicant has agreed to comply with noise at the property Lin so um I'm not really sure how else to answer that um there is a Evergreen buffer planted in that area um if if you want to suggest that
that should be embellished in some way I think that's a request that the applicant can consider um but other than that I I really don't have an opinion yes we would I would uh like to ask the applicant if they would look into providing better sound dampening and light
dampening uh effects along that western border and provide a compl or a substantial buffer between the residence and the non-residential use and do you have any specific recommendations in that regard is it
plantings fence combination or yes yes yeah what whatever it is to yes to provide a substantial buffer okay I I see that the area is is largely already filled with material atal the question is can more material
be placed there I don't know more material or without too much harm change it right we don't want to take down too many trees but we do want to provide Mr yes we we we'll undertake to look at that and see what we could
what we could do in that area that could uh that further bolster any uh any noise dampening and light dampening features by way like said that again just to reiterate that is the area where we've already agreed to maintain a screening fence well is it fair to say that if Landscaping helps to dampen noise that a
solid fence does as well uh yes so usually the fence is my just for my opinion as a planer I go to a lot of meetings and is usually considered the most effective but yeah it's a six foot fence adequate to shield from you know
the headlights of the cars in the parking lot you know understanding that some of the cars might be far back um you know what what height you typically see uh used as a a buffer when you're using a fence as a buffer between a
commercial and a non-commercial property um in your experience as a um considering the grade is is fairly flat right when when you have like shrubs often like landscape design 101 would
really Place shrubs around parking lot um those are usually three to four feet in height four feet in height is you know we all have cars that that blocks the headlights so a six foot fence uh as long as there's no type of grading associated with that will be more than
tall enough to block headlights it like I didn't I'm not the site designer so I'm not sure if there's any significant deviations in the grade there I don't think there are but um so my testimony would be if if the grades don't vary significantly six feet would be more than
adequate I I have a question it could be for either plan we're looking at you know our ordinance and um regulations is there a state regulation for conditional use are are you aware of any state
regulation for buffers on conditional use um no because under we're a strong home rule municipality so uh through the mpal landish law the stake is those powers to the township and if I may Mr chairman for the benefit of a board
member can't and all the board members in all public uh as one attorney amongst others and planners as well here um municipalities govern zoning in the state of New Jersey strong home rule 564
municipalities each with our own ordinances that is where under the municipal land use law aply named uh the uh the governing Authority not from the planning board not from the zoning board but from the governing body through the
adoption of ordinance process our Municipal ordinances govern uh not there is not a state zoning act and or other than the municipal Andrews law which gives it to the municipalities in large sense uh there are no State conditional
uses or standards we as a municipality like every other municipality in state of New Jersey get to govern the zoning uh within our uh uh uh uh municipality um unless we are preemptive
by certain state laws in other areas that's not the case here uh uh other than there is a federal orupa statute which has an impact perhaps but um but aside from that so it's Municipal uh it's our ordinance uh it governs uh if
it's applicable it's applicable if it's not as I was just thinking the confusion of How It Was Written that there was some guideline by the state as to how it should be written by condition no but there is uh there are principles of
statutory construction that apply to ordinance construction and um some of those were shared by Mr PTO or board planner with respect to how he interprets the ordinance and why he
interprets it uh in his view as clear that uh it does not require uh does not apply to this application on this site and therefore does not render this a D3 conditional use application that
violates one or more of the conditions of the use but actually is a fully conforming conditional use hence a permitted use and therefore we as a planning board have the jurisdiction to hear it uh is as a fully conforming
conditional use uh those principles uh uh exist uh in statut construction they come down to Municipal ordinance construction because our ordinances effectively are statutes statutes at the state level ordinances
at the municipal level uh that body of law exists um Mr ped applied it into his ordinance construction um I cannot disagree with
it from a legal perspective from a legal perspective he says it I guess from a planning perspective thank sure there questions from the board like to open it up to the public are there any questions for the public for Mr
Ricky hi good evening Mr chair members of the board my name is Nicole D I represent sustainable development for Milburn Township can you hear me a little closer maybe if you could for the okay um so I have some questions Mr Ricky hello hello and I'm sorry again
you're representing so for the record yes Nicole Dory Connell Foley on behalf of sustainable development for milour toship um I just have a few questions for Mr Ricky um you mentioned that you uh you reviewed the application materials did
you also compare the the site plans and the submissions to the Township's ordinances when you uh reviewed the application are you asking whether I conducted a full zoning review yes um not a full zoning review that's the app that's the burden of the
township I checked to ensure that the conditional use requirements that we adhere to those to make sure we have jurisdiction at this board okay so you didn't review the application to see if there are any uh variances or design waivers um other than the traditional use I did not not in fully I looked at
certain areas of the code to make sure I agreed with certain interpretations that I heard from our attorney but that's not responsibility okay and did you visit the property I did okay and um you mentioned uh I I wanted to ask about the the buffer requirement and subsection J
take my oh sorry sorry to cover it up um uh the the uh text there in subsection J says minimum buffer to a residential use shall be 25 ft um so I'm sorry sorry
you're in 606 yes 6062 right uh I think it's D1 J D1 J yep okay okay um and so uh that term buffer do you have a a planner and
understanding of what that means um it it it varies from from town to Town based on how it's typically defined we're at a loss here in mbour because it's not defined okay and would you agree that the planning board um this board has a jurisdiction to
interpret its own ordinance um with within reason I don't think they have the ability to write their own definition of buffer that was not handed to to them from the governing body um and who do you think uh is to determine the adequacy of the buffer for this
application given that it's a conditional use standard in subsection J um I believe it's the zoning officer in in the planner um but given the fact that the only standard is to meet the 25 foot setback and we meet that standard
there's not a lot to discuss I don't believe in terms of compliance or non-compliance and it's not to say that there aren't plantings in that area already it's already a fairly densely planted area and the applicant has already agreed to to look at it and to further embellishing and to make it
better and I don't think that's from a technical standpoint an obligation under the code that the applicants required to but I believe the applicant has agreed to try to be a good neighbor okay but uh the the subex in J my question was uh that would you agree
it would be the planning board that would turn in the adequacy of the 25 foot buffer in this place you use the word setback in your answer but it's it's a buffer right and there's a distinction um yes but the only requirement is that setback for the
buffer the buffer is not defined so is it your testimony that um in this case because buffer is not defined that it's the same thing as a setback and the applicant's not really required to provide any type of landscaping in the buffer area there there's nothing in the code that specifically requires how that
20 foot buffer area is required to be treated okay and would you agree that even though the perhaps if sex the other section cited 69.3 doesn't specifically apply um to this Zone that the planning board could
look to that section of the ordinance for guidance to determine what a buffer should be in this circumstance um relatively speaking with any except if if the area of that code is is in the conditional use section where the 25
foot is required in my opinion it's 100% clearly not applicable any even that it's not applicable uh it should not be considered because it's it's superseded by the conditional use standard if you want to ask the applicant to consider applying some of those other standards
ask the applicant I don't believe they're required to you can ask the applicant the applicant has already agreed to embellish that area so I'm not sure what we're really discussing because he's already agreed to look at it and to make it better um well my my
question to you is how I'm trying to determine how you determine the adequacy of the buffer because you're the you're the witness of I can't because you have no standard for it I can't excuse me everybody please unnecessary thank you so is it your
testimony that the applicant doesn't actually have to provide anything in the buffer or like what is your your testimony about how you evaluated the adequacy of this 25 foot buffer which is a conditional use requirement I'm simply stated I ensured
that a 25 foot area that was unencumbered um in any way uh exists in that area um So based on me and the 25 foot standard they meet your code requirement anything else that's placed
in that area is a benefit to the to the property the residents and the like but it's not a requirement in the code subject applicable to this application okay I just trying to clarify your testimony so is it your uh you reviewed
the site plans and determined that because there was a 25 foot setback that that satisfied the 25 foot buffer requirement absolutely yes okay and so your your opinion is that the applicant's not required put anything
any Landscaping any fencing or other kind of buffering in that 25 foot buffer area there's not a specific requirement in the code requiring okay and so if this board imposed conditions to require additional landscaping or uh fencing to
provide an adequate buffer in that 25 foot area is it your uh testimony that the board would be exceeding its Authority um that's some of a legal analysis and quite may be so in that I just wanted to go back to my original
question which is because uh uh there's no other section in the ordinance that defines what a buffer is um would you agree that the board could consider um this other section 69.3 to determine the adequacy of the buffer for this application um again you keep asking me
the same question it doesn't apply um the applicant has agreed to look at it and to for lack of better words make it better based on the board's recommendation already so we're functionally achieving the same purpose because while it doesn't apply we're
we're still looking to make it as good as possible for lack of a better work and um do you know if the the applicant will be submitting revised plans to the planning board so that the planning board can evaluate whether the changes that the applicant has mentioned during
this hearing that it will provide um so the board can consider and the board's conf professionals consider if that provides an adequate refer to address the board concerns I mean I don't I haven't had a chance to speak with my client to even said we would look at it and I think we'll you know like we have with a lot
of requests we've done that in good faith and in many instances implemented those uh those requests but I I can't commit one way or another simply because I haven't had the opportunity to explore it with my client and our our expert that puts the Landscaping plans together um and your what else did you
do to uh review the buffer that was proposed by the applicant did you uh discuss it with the engineer the landscape architect I looked at the landscape plan you just looked at the landscape plan I reviewed it on a plan I review applications it largely consists of Evergreen material Arbor VY in that
area there's some deciduous trees and it's a mix of materials so it's um I looked at the quantity of plantings on site uh as well which I thought for a 3 Acre Site to be significant there what did I say in my testimony over uous trees over 80
evergreen trees throughout the site and over 150 shrubs that's significant and you're trees out there as well it's not like this is being clearcut right so there's other vegetation that's there as well so at some point there's not enough space right and and if someone wants to
have a little bit of a lawn area that's that's their right too right uh but uh would you agree a buffer is not a lawn area right um based on the code um there is no different there's no definition so um a buffer could be a separation right
it could be a fully planted area it could have allow for different types of elements in there we can have fountains and water features it can be a lot of different things right and these are all considerations that the board would decide do you agree no so who would
degree who would who would uh determine what would be located within the buffer in your opinion it it's it's my recommendation that moving forward as a planner that the Township evaluate its buffer requirements and update its owning ordinance because for an application like this it currently
doesn't have any so I can't I can't suggest what something should be if I don't have something to review I can't say it's adequate or inadequate because there's nothing to rev there's no standard I'm not sure how many more times I can say that I'm
sorry no further questions excuse me my name is Jeffy Phil Le Alexander Lane um Short Hills New Jersey this goes back to the perview in the jurisdiction of this board you say you were involved in the
original application that was filed in May of 2024 is that correct uh I I was called to represent the applicant I'd have to check my proposal on the light but um early on in the application did
you review the notice that was was issued for the first hearing on the application I did not know you were not involved with the notice no that's IL legal so it's legal were you involved we talking about conditions were you
involved in reviewing the coverage ratio issue no no all right but you said you looked at the ordinances that were and memos provided by Graham when did you review a memo did
you re when did you start reviewing the memos review by Graham um I mean I received the memo Which pull out which memos there memos I focused on his latest
letter I mean I've been a part of this and I've been reviewing the letters that they as they've been sent to me I don't have exact dates for and I I've been at the last three hearings and as a I'm just going to say a couple things here all right sure sure speak to
the um the board this application is reviewed by the township and its professionals as to the adequacy of the ordinance right it's not my job to to do a whole review of
the zoning ordinance and say we meet every requirement that's the municipality that's why we get a letter from the planner and the engineer and the like and uh when issues come come up during the process as to interpretations or whether something applies you know we
had the issue of the buffer whether the infiltration Basin should be considered as part of that you know I I recommend it to my client to to remove it to take out any question of that being an impact in the bum so um I mean the township has
excellent resources that are are reviewing that portion of the application so I want to understand this so you're Shifting the responsibility of the jurisdic blame to the the planner over here no they review the jurisdiction right I was asked to review
the jurisdictional conditional use standards and I agree that this is appropriately placed in front of the planning board question when did you learn that there was going to be a daycare center as part of this application I don't know the exact date
I don't know was it in May was it was it in September he said he doesn't know I don't know you don't know is God coming
effect I mean the war Jericho coming down now or what's going on um maybe you want to Contin answer the question that he doesn't not know the cover ratio now when you started looking at Graham's memo that was from January when we
talked about coverage is there and and you look looked at all these site plans did you notice that the playground was not included that impervious uses were there's a difference between perious and impervious uses why were imp impervious
uses excluded from the coverage ratio he's asking a planner to speculate about why numbers were included or not included on a plan that he didn't prepare and didn't testify to if I made with those if I recall correctly that was changed amended
assuming arguendo that the playground was impervious uh uh uh the uh applicant has contended that they meet the lot coverage ratio is that correct yeah and that's a perfect example of what what Mr Ricky was mentioning in terms of the
board having tremendous resources at its disposal Mr pedo actually is the one that identified the fact and the subtlety in your ordinance that uh by virtue of the playground area being an accessory use that that counts as impervious coverage regardless of whether it's uh gr area whether it's
wood chips still strictly speaking so he brought that to our attention we had to address it so Mr F do you have questions that are material or even relevant to the pending application yes I believe I do have stuff that's relevant and I don't appreciate your comments on this because it goes to the jurisdiction and
now we heard before it was the the legal attorney and the planner that signed off on the jurisdiction one on the notice I didn't sign off on the jurisdiction the planner did about there's two parts of jurisdiction one is the notice whether that about procedural due process and
that's the State Constitution and it's not about state rights the next part goes back to the coverage ratio and there's been issues about the coverage ratio right here's I have one more question you're incorrect in your statement though so it's important that the board understands uh the notice is
is is the jurisdiction pursuing to the notice is defined by the municipal land use law uh the requirements under Section 10 yes and applicable case law including the Pearl Mark Case the Pond Run case and their progeny yes their
ancestry but uh the the as well so it is not purely states rights this or that candidly I don't know what you mean by State's rights but I don't want anyone to confuse the board as to what jurisdiction is and is it it's governed
by the mun and I wouldn't have brought it up if you didn't but you did and it was incorrect so it's important that I correct it for for my board I think there's some other Cas so that they decide this case properly because that is my job that is why they retained me all right and so
I'll finish thank you all right uh it's defined by the municipal land use law and it's defined by the case law under the municipal land use law which defines what notice must have as far as content
uh time dat place the the gener uh General description of the application and and what is involved the nature of it uh uh uh and date date time and place it must be properly served Etc uh that is by Municipal land use law
statute section 10 of that municip of the municipal land use law 40 call 55 d-10 uh and the case love the Pond Run case the promar case and several other that is what governs disc now that now
that my board has been properly advised by their board attorney please the chair permission please continue the only other question I have you said you're a planner and you're talking about sidewalks what is the width required withd for a handicap sidewalk is it
three feet four feet or five feet I believe it's generally five feet but thank you hold on Charles B 37 Keith's Road in Short Hills U I have one question uh could you
explain the discrepancy in your testimony where you referred to the application as a house of worship and the applicant in his testimony under oath
describe the majority use of the property as a uh daycare and preschool I'm confused okay well I think I think this is under case law right they've it's this has gone to court whether the
child care is a second use and I believe there's I can probably look in my notes there's at least one case that I'm aware of that is determined to be an accessorary part of a house of worship and it's not a second use so it's permissible um I mean l use the way of
explaining it is a is a process that evolves over time right and when there's precedence of something occurring over and over again it's usually accepted as being a permissible portion of that use so the courts have already determined that daycare is a permitted accessory
use associated with a house of worship and it's still considered one use of the property and it's permissible thank [Music] you I'm good okay Christine say my name again
yes Christine best 15 Fairfield ter short New Jersey um when you were viewing the variance needs on this property variance needs variance needs uh you you reviewed the variance needs as part of
the planning process determining to client whether he would go from zoning or planning correct um I reviewed the conditional use standards if conditionally used standards aren't adhered to that's a jurisdictional issue and I was here for
the testimony for for several hearings when the issue of whether we were over the imper coverage or not I listened to that testimony So based on I think what Mr Peno said an issue arose and then the applicant
complet instantly corrected it because that was something that was never raised to the applicant from0 One in times it was never determined to the a variance as soon as it was determined the application the applicant instantly rectified that condition you have to
understand that as well we're giving letters and reports and and we try to address those and if something's not raised to us as as professionals we can't either fix or or make better or or um understand what may
be a an ordinance I'm kind of speaking too much I'm kind of I guess speculating your question is not yeah I wasn't finish it's okay no it's okay just there's just multiple parts so there's a couple of ordinances that I'm not sure if you
reviewed them the first one is 247 13 and it's um it's in regards to um I'm sorry it's in regards to um might be I'm sorry it's 25 9521 it's um in order to protect I took an exerpt from it in order to protect the health safety
welfare and residential character of the township the placement of any decks or platforms you know can't be done in on a rooftop um so that's a new ordinance that came out I don't know maybe in 2021 so in order for you to put all your
rooftop equipment on you would have to place some type of sound pad or decking um to accommodate that so if you can't do that um are you going to pull all of the air conditioning units off the um
the rain collection system possibly generator off the rooftop and then would you have too much impervious coverage and need to apply for variance and there's another law that would pertain to that question as well first of all I'm not very clear that provisional
ordinance I'm not sure if I can answer the question is it speak to like residential decks is it what is it no it's just about rooftop decks it's a new ordinance that um our Township committee been you have a copy of the ordinance um I I I I was reading it off the ecode so I don't happen to have a copy of it you
can look it up on ecode but um there was also another ordinance that would pertain to this um it has to do with accessory dwelling accessory units such as air conditioning and other things like generators and um that's under 24
24163 and 24716 specifically talking to 69.1 D in Milburn AC units are only allowed in rear and side yards um and they must be screened by either a fence or some type of screening sometimes noise screening
and Evergreens and also and 69.1 F the same should hold true for a generator so they have to be in the rare side yards I'm trying to understand how they can be in the sky like you know how that would apply and um would they have to go back down on the
ground I didn't want the first question or the first ordinance M referen to fall through the cracks sure and Mr P May if you could have I I seem to recall in reviewing the ordinances correct me if I'm wrong but my recollection is that the the rooftop Decks that were the subject of a reent
ordinance have to do with rooftop amenities where people are invited to go and congregate there and either sit or or it's more like a public amenity space as opposed to utility style decking on which you know Mechanicals am I correct about that that's a correct
characterization yes so are you saying Graham that that particular ordinance would not be applicable here is that correct that's correct okay and which ordinance again was that gr or I I think it was either 2595 D21 I I
don't know why I wrote 24 17 13 it's either one of those two but I oh thank you thank you um Deborah I I think that the language is somewhat vague and confusing that's my opinion I'm sorry I'm not to say that but okay these or ordinances all relate to each other that's why there's attorneys
of planners that interpret them and yeah it's part of a statutory construction the entirety of it so right uh but if you're picking out certain individual ones in isolation that you think might apply you may be correct you may not
we'll find um so I'm sorry section 60913 609 609 13 the is is where 25- 9521 ended up when it was codified okay thank
you and um does Grant have an opinion on the AC and accessory use things on the roof in terms of in residential areas do you have a point of view on that applicable I think it's applicable but
we're trying to find out from our planner I think was the question by as what is what thein yeah six no I was talking about 69.1 D and um which ands
6091 F off of I believe it's ordinance 2 416-1347 1-16 it's in regards to AC units have to either be in the rear or side yards and must be screened by either Evergreen plants or a some type of screening
system I was trying to understand how um rooftop you know uh uses I mean that can be allowed and I I didn't I I would have loved to put mine on my roof I was just wondering so section 6091 D 6091 D and 6091 F refers to the
generator and 6091 D refers to the AC units and I don't think there's I'm assuming that the The Collection um the water collection system would also fall under accessory use I my my suggestion with respect to subsection D is that air conditioning
units may be placed in rear or side yards it's not a sh it's not it's not a compulsory apartment it's an optional apartment loc in those locations wa wait wait everyone can't speak time and I I don't candidly um people are going to
throw up in isolation ordinances and and throw them at the planner and say what do you think about this one you think about that one they they they they In fairness to the planner uh uh uh the uh the the the uh it would be fair to give
him at a minimum a fair amount of time to consider the ordinance in in Con in connection with this particular application and how it may or may not be applicable um and with all due respect
um and certainly the board members you know should ask questions of the planner but uh the firing line before he has an opportunity to review it to make a professional determination as a planner as to whether it's applicable or not
really should come first and then if you I understand there's one missing though it says air conditioning units may be placed only in rear and side yards so that's a little different that that controls over the M right and and I don't know is this this is it applicable
to this Zone this use this use in this Zone we have to make sure that we don't rush to make the wrong wrong decision I just wanted to say that was one Chang the meaning of what I think the characterization is that um it's characterizing the the overarching
section 69.1 is accessory uses in residential districts so an air conditioning unit when Ground mounted and not a fixed to the dwelling or to the building in the zone would be considered an accessory structure it's separately ground mounted so that's why there's standards that are applicable to
this if a mechanical unit is a fixed to the building it becomes part of the principal structure and is subject the principal structure regulations so then is it your interpretation as a professional planner and the plan for this board that that provision is not applicable here because a roof mounted
unit or units um are permitted it's only applicable if they are ground mounted and not roof mounted right yes that's correct and I'm just trying to understand his interpretation I what he saying okay we
want to be careful to get it right not wrong thank you for the extra time well my loquaciousness will buy you some time that's for sure so is there a code um since you is
there a specific code that you're speaking to in our Township Code I think he just he just analyzed the one just said character um he just interpreted okay I thought he was talking but well he actually talked about something different he specifically say became
part ofes part of theill yes so it's interpretive okay um so I wanted to ask you in terms in terms in your opinion do you do you feel that um deed
restrictions supersede zoning laws if there's a deed restriction on the property that restricts this property in some way I mean that's something that that usually submitted initial part of an application so that that could have implications on
application and I mean in some states and um uh counties oftentimes in a situation like this where there are existing uh deed restrictions um that um intend to develop a neighborhood scheme
I was going to ask will the applicant or can you ask the applicant if he can confirm and acknowledge that there are deed restri on this property and if the development is later found to be in violation of that that he won't hold the planning board accountable there's a lot going on there
first of all the board is uh enjoys broad immunity from uh suits by applicants before with regard to the actions it takes under the municipal anus law and and processing land application thank you for putting that on the record M I concur with that that
is true a fact legally secondly uh Mr Rick's right in that you can relax a little more now part part of the uh completeness requirements that we adhere to when we initially submitted the application was to provide a complete copy of all the of
a title commitment and title search that shows all of the recorded easements and recces and restrictions of record uh against the property that's on file it's been on as part of our application since day one also and this goes back several months though there's also been some testimony and some dialogue before the
board with regard to this issue of uh of deed restrictions it's actually been the subject of uh an appellant division case litigation actually analyzing and interpreting these deed restrictions as submitted by a judge but setting all of that aside there's case law in New
Jersey that makes clear that the uh land use restrictions and deed restrictions are matters of of contract between private parties they kind of operate on separate parallel but distinct tracks planning board's uh job is to interpret
and apply the uh zoning ordinance and and Grant site plan approvals um and subdivision approvals and what have you it's not within their purview to interpret uh and apply uh deed restrictions in recorded in recorded
documents if I may Mr chairman to to to uh I recall the case of Klein versus Bernardsville uh as one uh that comes to mind um for example if there is a deed restriction or easement
that has an impact on a development uh it is beyond the planning board's jurisdiction in essence even if it was applicable and had an impact we would decide separate and apart whether or not based on the law and the evidence before
us I say us I don't vote uh whether or not the appc met their bird and was entitled to the relief if in fact there was something a condition or deed restrict Etc um that would that would impact that and prevent
them from developing it's beyond our jurisdiction uh uh our approval would be conditioned on compliance with law all laws they'd have to deal with it so to speak if it's not applicable obviously it has no impact on them uh uh those
matters are matters of contract and they can either be resolved by the parties to the contract or by a court of law we're quasi judicial but we don't get the robes he's got the Gap but but we don't get the robes so we are subject to the
law so uh uh that would be determined subsequently if and when necessary if as Mr LaVine is contending that a court has already rendered a decision on it if that is correct
then we have to abide by that decision we cannot differ from that decision uh but again whatever we do it is conditioned on the law uh and any law that was already established including court
order and any law that is subsequently to be uh uh established for matters that are not already resolved so in essence it's outside of our jurisdiction completely whether it's even if it's
applicable even if it has a material impact we can't decide that we only decide what's within our jurisdiction so that uh paperwork around the deed restriction was part of the
application simply for our information but not for our consideration is that well it's to for uh applicants generally must provide or least should provide in my opinion title history uh to
demonstrate uh that uh a they have standing are they an owner a contract purchaser have some sufficient interest in the subject matter of the application the land in order to be able to bring the application in the first place there
are a variety of things that come from that information that is relevant um they may take the position that based on what's here there are no incumbrances no deed restrictions Etc legally that impact them but whether
there are or there aren't ultimately is beyond our jurisdiction because we have to leave that to the courts in essence I'm summarizing but that's how it works so to speak so you saying then that we would make our
decision and then that would be a separate Act ction to deal with the deed restriction perhaps if it hasn't been if it's applicable if it's relevant and if it hasn't already been resolved then certainly someone might bring
it uh the world is uh Dynamic things happen every second but I'm sorry please continue I it's some very important thing that you said Mr Warner um I wanted to I mean because some of the comments came from m
your attorney um not your attorney but the attorney I wanted to ask are you did you advise your client of the New Jersey appelit um court that um held that neighbors can enforce deed restrictions in Cherry versus zad Hada in 2021 for
Princeton New Jersey I did not so going um to um historic resources um is it in your opinion you know you you talked about originally all the conditional use you know bullet points you know setbacks very very
logistical metrics right so there's also part of the master plan and in one of our Township documents that was adopted um on February 6 in 2024 as an amendment it's um it's ordinance number that's um under here I can just show it
to you right here it's on excuse me page three um it talks about definitions um and one of them is historic resources so there's a difference between something that's designated historic or designated
historic district versus identified as historic and so this property 165 oldw Hills Road was identified by Bart Barton Ross as historic potentially historic on the master plan and so it is considered
as our definition in our code a historic resource does your client know that I don't know but I don't agree with that opinion it's not it's not an opinion it's a stated fact in the well well it did subject to interpretation I think Mr LaVine may have already made a
contention with respect to the applicability or lack thereof or where it fits with respect to it being okay potentially a potential designation as referenced in the land in the historic
preservation element of our municipality's master plan but attorneys May argue planners May argue did I say attorneys May argue we know attorne right but uh please continue okay I'm getting close to finish did you have
something to say I'm Sor no I'm just responding to your questions I just disagreed with your statement that's all okay okay so so um you also talked about you know um again that you know in your opinion that um the installation of such
a development would promote significant benefits to the town which I'm sure there's going to be a lot of benefits in in a lot of ways a lot of Pros um you know and then there's also going to be a lot of cons for local residents and so
you know the planning is it in your opinion the planning board while they have to look at all the conditional use applicable points the whole point of the planning board here is to evaluate whether something becomes you know a
public nuisance because of traffic you know um also with light trespass Etc and noise and is it beneficial for the overall Community um that's living in that region uh I completely disagree with and I was very clear about this in
my direct testimony um I discussed the p manew case that said when there's no variances and I I can repeat my testim no I I remembered I remembered that that that you you talk to F Manson case but I'm just specifically asking you that
question no I think the courts are very clear and I I respectfully disagree with 100% with that statement um and then you talked about I think was it 83 trees were being planted you know that there did you did I did you am I misquoting you I um yes I
indicated that give me a second over there were over 80 as I counted on the Landscaping plan which is right here if you want to look yeah counted by summing up if my math is well 83 deciduous trees 86 evergreen
trees and 150 shrub so did you are you so did you know that some of the trees that of the 86 that have been requested to be planted or being claimed to be planted are currently have been planted and are one foot high and then ride
along the uh the roadway on uh 165 ultr Hills Road do you think that one foot high trees um meet that criteria of I don't know if that's accurate I think the township Forester told me that information and Mr Ricky on Mr chairman with your
permission the process is questioned by question or answer by witness um Witnesses cannot consult in answering questions with other individual s uh that's not a proper procedure in my
opinion in this qu our judicial process so if you know an answer you know an answer if you don't you don't if you think you do you you know you decide how you're going to answer but it's question and answer by questioner and responder understood I don't know if that's
accurate because when I was here there was some discussion I believe that Miss Canfield raised some issues associated with trees being removed in the applicant confirmed that those trees weren't already taken down so my understanding was at least what I heard through testimony I'm not the landscape
designer that everything on this plan was um new plantings at the proposed sizing indicated in the plant list on the site that was my understanding okay so those those little tiny trees that go along it
will not be part of the 86 for trees that go in correct well the applicant based on their submission is required because this is what they submitted is that the the size of the trees are all 3inch minimum caliper and again I'm not
a landscape ex but usually you know that's a tree that's maybe 12 feet tall or so um and then the evergreen trees because that's deciduous trees are usually by caliper right that's like at the breast height and then evergreen trees are usually measured by their you know base to the top and the applicant
indicated that those would be installed at a height ranging from um it varies summer six to 7 feet summer five to six okay um so those just must be extra trees okay that's cool um so I
guess the last question that I wanted to ask and I may be repeating myself so you happly tell me that um so a planning board can on a conditional use application you know deny an application the applicant fails to demonstrate how
propos proposed use will mitigate potential negative impacts and does not meet the specific conditions outlined for conditional well I know that part or that part's already set but or if the project is simply not compatible with the surrounding area do you think that's
untrue um I was very clear about this right I SP this has no negative impacts because it complies with your zoning there's nothing to even contemplate here if there was just say there was a a variance here and I had to testify to the appropriateness of this you know I
may look to the character of the area uh it depends on the type of variance I may look at whether the benefits of the the variance outweigh the deviation and the totality of the application I also may look at other similar uses and how they've been applied throughout the
township um because when you Zone a community has to give under the law a reasonable consideration to the existing character of the area so I would analyze the exact the character of the area as well but I did not have to do that here because none of those variances were
identified thank you so much have a nice what else do the public have questions yeah t c in Short Hills just a couple quick questions I just was got a little confused on the difference between the setback and a buffer um I know we've gone over this uh
but for my clarification I'm sorry I'm asking it because I thought for a commercial property is a setback required is it different than for a residential property well a setback I'm I don't know if you're using them interchangeably or not the setback under
the Cod the distance between a Street line or lot line and that portion of a lot where structures are located based on the setback requirements of the ordinance all setbacks from public streets shall be measured from acros
right of way okay or as shown on the official tax M roof roof overhangs May project a maximum of two feet be a required setback line except as otherwise provided in this ordinance okay definition got okay so it just
refers to the building itself not the parking lot um well there are set back does not does there are separate standards gentlemen one at a time or else it'll be difficult for him to trans but also it
might be construed as argumentative oh I'm just trying to clarify I don't understand the differ okay I'm from New Jersey I speak quickly um I think most I know we're all well the code also has parking setbacks as well so um there could be a
setback applicable to a front yard side yard of a building building and it could be a parking setback so it depends on the code is it different for residential and Commercial um it it it it if this is a commercial property is
it meeting the setback requirement for what for what specifically for the parking lot yes it does okay okay because that setb is required to be 20 feet 20 feet we had to I was confused I heard 50 feet and I wasn't sure what the
and that's for a commercial property I believe the Mr sakandi if I pronounce that correctly was referring to buffer standards so I was yeah I got the buffer discussion I was just wondering about the setback discussion yes it's because I was you're using them kind of interchangeably and I got I got a little confused
myself okay so you're you're claiming that the parking lot is meets a setb requirement for commercial building correct okay um just one other question would you given with the nature of this project you know a lot of school activity there
would you recommend that there be a School zoning uh driving on Art Hills making it a school zone for safety purposes a safety issue came up for children would would you recommend they put in a school zone that that's outside my expertise um that might be a question
for an engineer or a traffic engineer as that I don't know sir okay okay so projects you've seen uh with like this with the I don't know the criteria that's established of when something requ it's outside of my EXP okay question I have okay
thanks chair if I may just as kind of as a followup in kind of in furtherance of that issue that that gentleman just raised Paul do you have an opinion as a planner uh looking at the specific conditional use standards for a house of worship um it's interesting there is a
25 foot uh buffer to residential there's also a 20 foot setback for parking yes so with that with those two things being simultaneously true do you feel that uh this applicant or any any house of worship um in compliance with those
conditional use standards would be permitted to park cars up to 20 feet from from the property line and thereby being 5 feet inside the buffer um no but I think the buffer would Prevail here you would have to meet that 25 foot setb
because that's the in this context if they're both um the the buffer setback would be the prevailing requirement because if you can't while there's no standard um or definition for a buffer um if you even implied your
your definite of setback that would be encumbering um that requirement so I think you would have to it would have to be the 25 ft Mr could I ask do do you have any any thoughts on that issue concur Mr great thank you any more questions from the
public any questions from the board [Music] there any uh Mr Le you have any more witnesses uh no I don't have any additional witnesses to uh present or introduce to your folks I would just I I realize that um there obors may put on
Direct cases and members of the public uh may as well so just as would typically be the case I'd just like to reserve the right to recall my witnesses to provide additional direct testimony as may be needed but I don't intend uh I intend to you know rest for the for the moment let the uh public have their
chance and that reservation of Rights is with respect to direct Andor rebuttal testimony should should you determine uh that you wish to present same that's correct and that is uh in accordance with the applicable procedure for quasi judicial and judicial for that matter uh
uh uh hearings so I believe we're up to uh objectors at this point uh and uh I believe there's at least one object represented by Council and by one I mean it's I understand it to be an entity I don't
know and I believe she wishes to present the case uh generally uh Mr chairman um in those circumstances uh the represented objector would put on their case before members other members of the public who
are not represented by that attorney have their public comment um i' uh it's incumbent upon me to ask just to confirm are there any other attorneys here representing uh uh any individuals or
entities other than Miss Dory who is Dory right yes who is representing uh The Entity that she has stated as her client previously seeing none uh it's a discretion of the chair but uh it would
be a the usual approach to start with representing objective please thank you uh Mr chair Mr Warner um so just as a matter of procedure I had um submitted a letter to the board after the last meeting um I understood from some of the
discourse that board wanted some kind of presentation or the materials submitted to them in advance of the hearing um so I did go ahead on April uh excuse me on February 24th and make a submission electronically to the board which is the custom that I'd done before with
submitting things um I did follow up and I understand that my submission has not been distributed to the board um so I wanted to just procedurally address that because I have brought copies of my submission with me I understand I have a cover letter that explains some of the
positions for the board's benefit you might have a position on the that cover letter but I I do uh want to introduce the documents and I also have a witness here Mr Eric Keller I would like him to be able to testify this evening to the board Mr chair I'm sorry if you're done
yes uh uh Mr chairman well I certainly can aan on saying it would be prudent uh to involve Mr LaVine as well particularly if he were to concur with both you and I Mr Dory that might even be prudent uh so and beneficial uh so
certainly Mr LaVine uh the uh objector entity has the right to present an obor's case and to call appropriate Witnesses correct uh yes okay um and Mr Keller would he be
appearing as an engineer traffic engineer a planner uh sum are all of the above all of the above all of the above okay um the the uh uh and uh Mr LaVine
you would concur that since you had a engineer civil engineer a traffic engineer and a planner that would be appropriate and you have no objection uh to the objector uh having those three Witnesses I'll be in one individual I don't okay thank you for confirming that
on the record Mr chair I I have a quick question so I'm a little confused if a letter was supposed to be provided to the board in advance why was it not provided I'm gonna get to that board member saing there thank you the uh now
that we've confirmed sort of the lwh hanging food first now that we've confirmed uh uh those rights which in my opinion are obvious uh the um my understanding of the letter is it included uh at least some exhibits of
which there was a previous determination by the board at least preliminarily or at the time that some of that evidence may be irrelevant to this particular application some of it as I recall relating to
the settlement agreement the deed restrictions and the like some of which or perhaps all of which were addressed to some to be already even this evening um what is appropriate in my opinion uh is for each exhibit to be sought to be
presented in the along with the appropriate testimony um and uh in the due process quasi judicial process if Mr LaVine has no objection uh I suspect the board has no objection we'll hear it and
see it and consider it if he has an objection there will be argument presumably amongst the two by the two of you I'll advise the board and they will decide whether they will admit the evidence or not so Prudence would dictate in due process and uh uh the
like uh which shouldn't be um which is important uh to consider uh in my opinion requires that we do it exhibit by exhibit with the appropriate witness okay and with that being said I I did did mention at the beginning of
the hearing that I have bought collated sets of my submission um of February 24th um for the board and um also for Mr LaVine and uh the board's professionals so I do have copies of those and I understand you do want to go exhibit by exhibit but could I pass around the
compiled package and if exhibits aren't admitted then those can be removed I think would' be more appropriate to just make a profer of what the what the substance matter is of each individual exhibit and I think there can be a very fruitful and thorough you know betting
uh on on that basis I guess the only other thing Mr Mr War I would say I I think that that procedure makes a lot of sense I think it's great the only thing I would question a bit is I don't know to what extent uh it's it's fully accurate to say that the initial rulings that were made uh the first time that
mror attempted to submit some of these uh materials was preliminary in any sense I mean she made a full argument in favor of why she thought they were relevant should be submitted there was a perfect qualified board attorney here this evening that evening that advised the board and I hope there's one this
evening too uh uh as well as as as this evening there was a formal decision made uh and in fact mror herself and all of her subsequent correspondents makes no bones of that it says I want to reiterate the argument that I set forth on the Record December
18th so this was argued I made my points she made her points it was discussed among the board members a ruling was made um so I don't know in what sense that's preliminary I'll explain with the chair's permission the the uh it by that
determination was made at that time based on the evidence presented at that time the process is one that evolves hopefully it progresses it doesn't regress or digress but but uh the the uh but it
evolves certainly uh and uh so by preliminary I mean that at any given point in time based on the evidence and there's been more evidence uh uh thus far and there'll be more to come uh I as the board attorney may make a deter well
you you will address it both I suspect I will advise the board the board will make a determination as to whether particular evidence is or is not relevant and admissible for the board to consider uh and uh so something that may
have been deemed not sufficiently relevant and therefore admissible a month or so ago maybe today or next meeting I'm not going to go beyond next meeting in my discussion right now uh they they uh might be relevant and
admissible uh so therefore uh uh I'll advise and and the board will determine at the time when each piece of evidence is submitted Mr Warner I just have a quick question for clarification so it seems that the applicant is able to
present and provide to the board in an unfiltered manner various exhibits um who is the Arbiter of what gets distributed to the board it sounds like there's some sort of filtering going on here and I I just want to know who has
that Authority the board the board the board rendered a determination that I'm characterizing as preliminary for the reason I just explained it's it's an ongoing determination um but based on that determination that
was made at the time uh uh what was sought to be submitted uh had evidence that was already determined by the board to be irrelevant and
admissible uh it may continue to be or it may not continue to be so that is why in my opinion it is prudent for that evidence to be submitted uh uh by the applicant with the applicant's witnesses the applicant will certainly I suspect expect argue
it's relevant and admissible and tell us why Mr LaVine may agree uh he may disagree and tell us why he disagrees and uh if the board will allow me I'll I'll weigh in on on my opinion based on their arguments and the board will be
the ultimate Arbiter so we'll have to vote on each well I guess it's TBD I think is the acronym I'm just trying to understand the process because obviously this is a a different phase of the proceedings and you know it sounds like
there's one set of standards that apply to no the applicant has the burden of proof okay and so they submit what they deem to be relevant and admissible uh at the end of this we'll determine whether it was enough or not but uh so to speak
um but the object uh the the objector party uh uh uh sought to have the board consider items that at least at the time and for now were determined to be not relevant and
admissible uh for some of the reasons we ended up talking about a little earlier this evening so it's not a different standard or different process it's a different M very different circumstances uh that exist um but
certainly uh uh the applicant excuse me the objector uh will be given an opportunity to seek to submit every bit of evidence that they wish to uh and uh if the board ultimately deems it's relevant and admissible you'll accept it it's also possible the board will
determine that it's can be introduced and it may or may not ultimately be determined to be relevant and admissible uh but that the board May determine that it can make that determination at the appropriate time at the conclusion um
this all is remains to be TVD remains to be uh determined um uh uh in a prudent fashion in my opinion that prudent fashion abided by due process uh and the and the procedures for cuse judicial
hearings would be as I stated thank you for the clarification hopefully that benefits everyone that clarification I I hope they all do question too um is it possible to see the exhibits if there copies of the
exhibits so we can follow along I think my understanding is we're going to get them uh as as they go they come exhibits come with testimony like like the applicants exhibits you know the engineers reports the the the plans The Architects it's the traffic engineer Etc
uh so I assume we'll be getting them well we with Mr Keller in his various capacities expert capacities will be getting that I assume but we want theor to make their case uh as as they wish just as the applicant wish to make
their case and again the it's the applicant's burden it's not the obor's burden uh to prove it's the applicant's burden to establish their entitlement uh we already address to some degree what that standard is so with the
chair's permission uh please present your Witnesses in your case just before us so to clarify though she said they're coated so she could she'll give them all every single piece of evidence to are you able to break them up so to speak or why I mentioned it earlier is I did
bring collated sets so um you know I would propose that we hand them out as collated sets uh just to make it easier and then go document by doc that's the alternative way as to what's in the in there so that may it may end up being a
situation where he well I can I can identify each of the documents maybe that would help okay it um and then we'll go from there all right so the first document was my uh February 25th 24th 2025 letter and the reason I submitted this letter is because at the end of the hearing last week uh I
believe Mr Warner and perhaps the chair is suggesting that the opposition or the objector could uh make a submission to the board and that it should be submitted 10 days in advance of the hearing um so uh this uh February 24th cover letter contains you know my
arguments but also uh the objections that uh my client has to the application um you know much of this will be presented in the argument today as well as Mr Keller's testimony so this is really a summary of the position of the objector so that's that's the purpose of
my February 24th 25 letter Mr leine do you have an objection or no objection no okay that would comport frankly with my advice so okay one is one is coming so can would we mark this now would you like to pick a number are we up to three
or well I think we're uh oh objectors exhibit least let's make sure we this will be this will be O2 okay thank you O2 so my February 24th 2025 letter will be marked as objectors
exhibit to and I will provide a copy to all of you when I get through the rest of these um so also attached was my January 6th 2025 letter which I had submitted I initially submitted a copy of uh the
letter to uh you Mr Warner as well as um the board's uh secretary uh Mr LaVine and and the other attorney that was there at the time these are my objections regarding the the documents that were admitted at the uh December
18th 2024 hearing um which I will also be um discussing again this evening so that's my cover letter which is dated January 6 2025 and I'm sorry if I may Mard you did you say there objections to documents that were admitted or your objections to documents that were not
admitted at the time that you wish to have admitted yes objections the latter the latter that's what I thought you meant to say okay uh Mr with the chair's permission all of this is with the chair's permission stop me if I don't have your permission Mr LaVine please uh
do you uh no objection Mr LaVine we're talking about just admitting the January 6 letter yes which outes no okay so this is January 6 letter it's and there were two January 6 letters one just attached the documents but the one that I'm referring to now is the January 6 letter
which is about three pages um and it did not attach the documents and it's with the objector position so I'll mark that is 03 okay and then we have my January 6 letter that that actually attaches the two the documents and those documents
that are attached to it the first is the um the uh November 15th 2019 settlement agreement between I'm sorry one one more time the November 15 2019 settlement agreement okay yes between the township
the zoning board and this applicant related to uh a zoning board application for the properties next door one Jefferson and seven Jefferson for house of worship so um excuse me the settlement agreement I'm I'm mixing up the two documents I I apologize the
settlement agreement relates to that application as well as other litigation with the township um and the continued use of one Jefferson uh for uh house of worship operations so this was related to the testimony of the rabbi at the
um uh December 4th 2024 hearing uh the rabbi actually testified to this settlement agreement and at the time um of the subsequent hearing on uh December 18th um I had tried to introduce this document into the record to cross-examine the witness at this time
I'm I'm offering it to the board I'm profer it as uh an exhibit to be offered as part of uh the record of this application because it was directly testified to by the witness um I believe that the witness's characterization of the document is not complete I think the
board should have the benefit of the entire settlement agreement in deciding the application um and considering the applicant witness and if I may the relevance uh to the applicate this application for this development
proposal on this site 165 old Short Hills Road the relevant what is the proper as to how uh that settlement agreement is relevant to issues that the applicant has the burden of
demonstrating and you as objector um are in essence defending that effort uh uh uh for this application this relates to uh the testimony of the applicant's witness the rabbi that the that the property next door was
presently having operations for a house of worship and that those operations would be moved to the next door property and that the operations at one Jefferson would cease um so there were limitations on the use of the one Jefferson property um you know I think that the planning
board should consider uh the settlement agreement that was directly testified to by the witness and have the benefit of reading the entire PR agreement um and comparing it to the witness's testimony and also it goes to um the objector uh position that the board should impose
some reasonable conditions related to uh you know to to make sure that the the applicant's uh representation that it will return one Jefferson to a residential property will be U you know a condition of approval of this application so there are not two houses
of worship next door to each other and and is it your contention that the planning board has jurisdiction over that settlement agreement Andor one Jefferson Avenue that we can impose conditions on an approval with respect to Old Short Hills Road as to what can
or cannot happen on one or 5-7 Jefferson well I'm offering the settlement agreement for the board to consider the settlement agreement because it was directly testified to by the applicant's witness and I believe that the characterization of it was different from what the document is to how it was different and how it's relevant to this
application well the T the applicant has testified that uh there were operations for a house of worship at one Jefferson and that you know there was a congregation that's been there for a long time and that it's been operating at that property it's been permitted with the agreement of the township and
there's actually a lot of restrictions on the use of that one Jefferson property and assuming all that to be true how is that within the jurisdiction of this planning board for an application for development on 165 old Short Hills Road they can only decide
whether or not the applicant meets their burden of proof to do what they're proposing to do and develop what they're proposing to develop on the lot that they're proposing to do it and develop it on um whatever it may say in those
documents and assuming they're all they say what you would say they would say uh the uh isn't that the subject matter that is outside the jurisdiction of this planning board for purposes of this hearing and this application for development if there was a court
involved or whatever uh even if it related to this application it would frankly perhaps I suspect would be outside the jurisdiction of this board but we're talking about a different as I understand what you're saying a different application for
development that previously occurred a different uses on a different lot none of which are before this board right now and the reason I do this is very simple and I hope everyone understands uh our board can't decide something that it
doesn't have the jurisdiction to decide um and it's my job to help make sure that you decide what you have to decide and you don't decide what the law prudes you from deciding uh so that's why we're going through this effort um yes so I'm
not asking the board to decide something that it's not supposed to decide so number one the reason to admit the document is because it's directly testified to by the witness and this board is a quaji Judicial body just like a court of law can take recognition of an agreement that's been signed by the
township of Milbourne the zoning board and the applicant related to the property next door which was testified to by the applicant's witness and what was your proper as to what he testified to that would make it relevant for this board to consider what is in that
settlement agreement restri may may relate to uh the Jefferson Avenue Robert the witness's characterization of what the settlement agreement allowed the W their uh their congregation to continue to do with the property at Jefferson a
at one Jefferson yes that isn't again I'm asking you that that's one Jefferson Avenue this board only has jurisdiction and if you can cite me some Authority but but to the contrary to this particular application for development
on one old Short Hills Road and the relevancy is that these properties are intertwined because the applicant has made a representation as part of this application that is going to return the property next door at one Jefferson to residential use if this application is
approved and that's that if they do or don't do something Mr with all due respect I I think you've made your position clear and I think you made it clear that it's up to this body to decide whether we admit the evidence or not so shouldn't we shouldn't we vote on that
certainly after M and and I have no position let me be very clear I'm asking the questions to try to understand the Jor said ultimately I'll advise the board um but I'm trying to frankly elicit from Miss Dory her full argument
as to why it's relevant to to this board Mr in uh uh LaVine uh uh should have an opportunity as well to weigh in uh if he has a position right um if you've EX Ed I just want your explanation yeah I just want
to add one more thing is that the board considered evidence of the rabbis testimony which related to this settlement agreement and I think that the board should have the benefit of the settlement agreement itself in evaluating that evidence of the rabbi's testimony that's that's really the Crux
of it and and and if that's your entire argument in uh Mr LaVine do you uh uh do you stipulate to that being uh admitted to the board or do you object and if you object what what is your jection uh basis um I you know I would just like to
move I think just on its space it's plainly uh irrelevant and just kind of pollutes the record with more Superfluous information uh that's only going to lead to more distractions and more time consumption um I think it's quite clear that a different property uh
for six years in the past so I understand it settlement AG arise arose out of an application before a different board seeking very very different relief uh I think it's quite clear that it's uh irrelevant but I don't plan to belor the point I'll leave it to the board to to
decide but I wouldn't stipulate to its relevance but I'll leave it to the board question M Dory is this all relevant because of the deed is this property part of the deed that is on 165
um this is not related to any type of uh deed restriction these are Rel uh the settlement agreement was related to a zoning board application and other litigation stemming from that that was denied thank you so I have a question so just to be clear and for the avoidance B
out your claim is that the document you're trying to enter into evidence was testified to by the applicant and at some point you're going to make your case and you feel that it is useful for the board to have that evidence as
it relates to the testimony is that is that correct understanding yes to have a full record yes okay so it sounds like as a board we have to make that determination as to whether we want to allow it and Mr Warner it's my understanding that as you said earlier even if we choose to allow it now that
doesn't necessarily mean that we will consider it uh during our decision-making process excuse me well that that's for the chair but the Quorum um the board member Sandi
that is why I intentionally said what I said uh the uh it may not be relevant at all um but uh uh if the board uh is able to ultimately make that determination
after hearing the arguments from both Council uh and I certainly trust the board to be able to make the appropriate determinations as to relevancy if any uh uh of a document uh you know then the board can allow it uh to be uh
introduced and ultimately uh may or may not give it consideration may give it a certain weight may give it a lot of weight a little none so it sounds like that case be prudent to commit it
and it will be determined later whether or not it's relevant or should be considered if that's if that's the pleasure of the board the applicant will the objector excuse me will be admitting that document can I ask a question is it just because of completeness of the application and just the direct
testimony or is it does it also speak to the character of the uh the applicant uh no it's not going to the character of the applicant it's going to the witness's testimony which directly testified to it as well as the fact that the board should have it for completeness of the record because it
was directly testifed to um so Mr you you reiterated several times it was directly testified to do you have a recollection as to the scope and the extensiveness of that testimony are we talking about two sentences two minutes two hours it was testified to be by the
applicant I I don't know the time frame but you know it's your witness and it was testified to by him at I believe the first going to utilize this or is this more for no this is really just for completeness and I'd like to have it considered by the board and and like you said the board can decide its
relevance my understanding is that your your prior explanation to the board I may go all the way back to December 18th as to why you felt it was important was was specifically to challenge The credibility and to impune witness it's not just a matter of complet well at
this point I'm I'm I'm admitting it for what the reasons I've stated this time or the December 18th time today and I've explained to the board my reasons and I'm asking asking the board to consider it I think we're at a point trying to be argumentative
I'm sorry where the board has heard argument from both Council um and uh it's up to the board to decide it's not a vote per se but it's a polling if you will if a majority of the board wishes to consider it uh or to have it
introduced uh and to give it whatever weight ultimately if any the board intends to give it based on whatever relevance it may or may not have uh it's the pleasure of the board need a uh I would I would simply suggest that you uh quickly pull the
board well we have yeah and we we have nine regular members so right okay so the board has made a determination it could be introduced and the board do we trust the board to give it whatever weight it deserves
ultimately okay I'm sorry so you said it was admitted yes you got 04 in okay okay thank you 04 okay thank you okay and the next document is and I'm sorry how many are there I didn't think there were that many but this
is you don't have yeah it's really the bulk of it um there's just a few more uh the next one is the June 25th 2012 uh zoning board resolution of denial this is also for the properties's next door and it was uh another uh decision of a land use Board of this Township that
denied an application for an house of worship for the two properties next door um I think that the planning board uh as a quad judicial body can take recognition of the board's um resolution on these prior applications for house of worship um for the properties next door when it's uh considering this
application so that's the reason I'm at it's also uh referenced in the settlement agreement okay and and again just one question the the the relevancy of it to this particular
application in your contention is because uh another uh land use Board of this Township uh made a decision to deny an application for a house of worship for the Lots next door and um had very thorough reasoning it's a lengthy uh
resolution um concerning uh What uh what the board considered in that application and it's referenced in the settlement agreement can I ask a question did did the zoning board back in 2012 considered on conditional use or on variance it was
a use variance application a use Vari it was a use variance yes was it a conditional use D3 no I don't believe so D1 use I believe so yes and again it was just for
clarification confirmation it was Jefferson Avenue not this site it was a different application by a different board with different standards for different relief correct yes okay sounds relevant to me well I'm not I'm just want to get make it clear for the board
and for the record ultimately the board will decide but In fairness Mr LaVine uh do you have no objection or do you have an objection if so what's the objection I uh object uh for obvious reasons I mean the burden was not the same on the
on the applicant the board was not applying the same standards um it was under an entirely different section of the ordinance applying entirely different uh legal uh standards uh years ago to a different property uh we don't even know to what extent the dimensions
of the of the proposed structure were the same different what the sexs were uh it couldn't possibly be relevant and my advice to the board is that first uh based on the profer by objectors Council uh
uh it appears to me as if there is no relevancy of this document on this application which is different for this development which is different for this site which is different for the relief
sought here in which is different materially different uh and uh and the standards of which are obviously materially different as well that said again I trust the board ultimately but uh if it is the board's ultimate
determination to have it introduced uh and to see when all is when this matter is concluded uh if the board continues has that same opinion with respect to that
document but legally uh the law governs can I ask a question of the attorney please oh yeah so you mentioned that this previous action that you now want to introduce
was referenced in the settlement agreement that you're also going to introduce yes which seemed to be a little more ambiguous as to whether it was relevant than what you're currently talking about with this previous application but is it necessary in order to understand the settlement agreement
that you to have this second document introduced yes I think it's it's helpful for completeness for the board to have both of these documents so that's why I'm introducing both of them or profing them but this this doc you're attempting to introduce this was not testified to
by the applicant brought up by the applicant um well there is a pretty extensive um explanation I think by the applicant and their application materials regarding the history of his property and litigation with the township and that was testified to by the applicant's witness so I think as a matter of completeness the board should
consider it so you're saying references to this were in the original application that was submitted to this planning board for this matter um I believe that there was a summary of some summary of litigation by the applicant in their
application but it was also testified to by the applicant um by the applicant's witness that there was litigation so I'm I'm providing the settlement agreement it references litigation as well as the the denial resolution which is the source of
litigation satisfi answer it's an answer I think the board has decide whether it's satisfactory I think it's important to understand that this is a different application there was a variance in that case which is totally different to this
situation so I don't know how it's going to help us decision a different situation in fact it might arguably confuse the situation I think that if it wasn't you know the previous one I think had some
relev potentially we don't know but this one certainly seems like it's not relevant correct okay this one is not okay so 2012 resolution is out yes
okay so I'll have to pull that one out of the package um so the next document is the February 24th 2025 report of Eric Keller of Bowman Consulting and Mr Keller is here this evening to testify to his report no objection
five is Mr K's report thank you um the other documents um okay the next one I have is a um um August 15 2016 appal division decision and this is related to the property the
subject property 165 um old chills Road as well as the adjacent property ju Jefferson um this is also for completeness um and because it's referenced in the documents that were submitted by the application as part of their application the 2014 judgment was
submitted in the title documents um it was also uh part of my cross-examination of the rabbi um and um this 2016 um decision of the appell division um concerns deed restrictions um that were
question that there was a lot of questions from the I'm speak okay it's already part of the application it's already part of the record okay okay that was an interruption but it might have been worthwh okay so the Appel
division thank you decision thank you so that's 06 is 06 okay and then the the 2014 judgment uh is in there if it's it's already part of the application but we can mark it if you'd like um do you want to it's just a
not for me to decide you wish to introduce it as an exhibit yes okay then it's no objection no it's 07 um and the last document is a uh uh November 13 2019 order entered by the
Chancery division um related to a motion to enforce litigant rights um when the uh house of worship operations continued um at one Jefferson after the Judgment was entered um the former owner of 165 Jeff uh old short road uh filed an
application to enforce litigant rights to enforce a deed restriction so this is this is for completeness it's part of uh what's referenced um in the 20 it's related to the 2016 pel divis decision that's uh also been
spitted with the chair's permission Mr line I guess just we are you alleging that that was also part of the rabis direct testimony and that's why it's relevant um no but this is a this is a court order I think the the board can consider it it's as a matter of completeness it's also mentioned in my
letter out of curiosity you you if I may you mentioned it was uh uh related or I believe you said to the Appel division decision in 2016 but this did come three years later correct right because so if you could
just clarify for me what you meant by related um because even though the um in 2014 the chanc division entered an order a judgment to prohibit the use of one Jefferson as a house of worship um in 2016 the Appel division upheld that
decision subsequently certification was denied by the Supreme Court New Jersey um uh despite that judgment uh the uh operations continued at one Jefferson of the house of worship this is all by way of proper for the board remember not
evidence please um and uh those oper what the attorneys say is proper the operations of a house of worshipers continued on that property and so the former Omer owner of 165 old sh Hills Road uh filed a motion to enforce litigant rights um so this is
the the order um granting that motion to enforce litigant rights and I I've referenced it in my my letter so this is as a matter of completeness I'm submitting it to the board the date on that uh excuse me what was the date on that uh November 13 2019
um as part of your uh proper Mr Dory are you uh claiming that other than the owner of 165 old Short Hills Road subject of our application are there any other beneficiaries of that um that order that judgment not not making any
kind of legal opinion um as to the beneficiaries of this order I'm submitting the order because it's referenced in my letter it's related to the court decision um and I'm offering it to the board as a matter of completeness as a quagi Judicial body board can consider a board order related
to the application certainly if it's relevant But ultimately it may be that the board determines to have it introduced and ultimately decide whether it is or it isn't um but uh Mr LaVine uh do you object is the
first question so I'll just simply say uh this is somewhat different than the other two documents in that I'm I'm well my client tells me that this motion to enforce litigant rights is also as a matter of public record as entitle so if that's the case I certainly don't have an objection it's already part of our
application to the extent that it's not I know that the other two documents were and was already again part of the record part of our application it's uh sounds like it's a motion with regard to uh the enforcement of uh private deed restrictions which we had a fairly involved discussion about
earlier where was ultimately decided that that is a separate parallel track it's a matter of private uh contractual relations not within the purview or the jurisdiction of this Bo so assuming that to be true and I certainly agree with that position that that would make this
particular document irrelevant and is that an objection and is that the basis for your objection yes to both an objection and that's why okay and it's for the board to determine I'm confused is it is it already part of the application and the record or is it
not I I honestly don't know sir uh the raber seems to think that it is so um you know he knows his property inside and out I don't recall off the an if it is it's non-issue it's already there so that applicant so if it's already there then we don't care we don't care the only wait wait wait wait sir you can't
right your Council can at this stage happy to clear things up if I can through your Council thank you the the the I'm sorry back to the chair no no I think if it's already in there then it's exhibit number eight okay exhibit 08 thank you that's the November 13 2019
order um and the last document I have is um a map and I believe this is also already part of the record because it's uh part of the title um this is the uh 1897 filed map of the Short Hills Park Association which includes the subject property and it's really the deed
restrictions that have has asked about um so that's it's definitely in the title so there's no objection n okay 09 yes thank you so that's it as far as documents um so I I
do have hard copies um they are coated sets so uh if I could I'll just um take a minute to hand those out to you uh there certainly uh Mr chairman my advice is we take them uh because now 01 through 09 are uh introduced most
without objection will these get posted to the planning board website they are part of the record of these proceedings now uh at least as far as their introduction so in my opinion they should be M could I just ask you before you hand those out
there is one I think that needs to be removed I think she oh yeah there's you said you were G to remove one I was going to remove one and it might be difficult because I think well actually maybe so it was the June 25th 2012 resolution I believe that was the one
that was not admitted right everything else stays this one [Music] separate unfortunately didn't know how it was going to turn out should
[Music] can you just tell me how many sets you need I 12 we have 11 if you can get to around 14 that'd be great but please to the board members
first so here I have nine we could start handing them out if you'd like here we go so how many did you want 14 I think you copied me get I you'll get one for the record and I think they're in order
01209 so we could all track them that way correct one more cop I'll I'll I'll read off these numbers again okay I have four more don't we need M would some of them be stapled together
possibly because I think we may have about everybody can check at least we have looks like we have five St so maybe only five documents okay all right well all right well let me list off the
uh the documents that I have and then um tell me what you're missing okay so uh you have my my cover letter February 20 24th 2025 that's exhibit 02 everyone has that right okay
you got to got be Qui you got got please so exhibit O2 is my February 24th 2025 cover letter exhibit 03 is my January 6th cover cover letter is that in the package it's out of order I
apologize there's two of January 6 but the shorter ones you en closed please find the uh is that that's right we don't really need that but the January 6th one that I marked is 03 is the three page gener got that one okay 04 is uh the uh
resolution attaching the 2019 settlement agreement that's 04 yes resolution 19- 257 I'm sorry that you were asking for the yes okay thank you that's so for okay 05 is uh Mr Keller's report from
Bowman engineering that's 05 February 24th correct yes okay got that one 06 is the Appel division decision no okay I'll have to look and see if I sorry
okay well I I'll find the copies of 06 for you um 07 was the 2014 judgment no okay and 08 is the 2019 judgment and 09 okay it looks like you're missing copies of the last four
four which I will look in there and see if I have but I am going to be starting with Mr kellerer um so I would like to start with his testimony and uh you have his report hold that because we have five minutes or four minutes oh okay I have to car
that till next okay Mr may make a suggestion the the the um since we have some additional documents that have uh been allowed to be introduced that you need to get to everybody if it's uh might be uh effective for you to send them to miss davit who will distribute
them to the board members and make sure they all including the uh ones you gave out tonight uh maybe you can get her one full dig set and make it to the website as soon as possible so that members of the public everybody can have them board members can have them everyone can look
at them in advance of the next hearing and I want to make sure that happen so that we can move swiftly up come next hearing so that you can proceed with your obor's case okay I appreciate that thank you I will be in touch with Miss davit to make sure she has all the
documents okay very much thank you a motion toour wait I'm sorry we do have to announce uh the the um we we're going to proceed with the objector case on uh March 19th is that
correct I March 19th and we have nothing in the pipeline right now or scheduled for that night other than this and I believe perhaps the um Capital the whole Township the renovations on by the ba
that we might have something coming to the planning board in that regard okay so it's TVD okay but no no applications no applications okay and Mr LaVine yes I'd be remiss if I didn't ask
for an extension a time to act beyond the 20th in light of the fact that it might be fair to assume we'll need more than just one more hearing excuse me um that that may so but consistent with our practice in this case my preference and my directive for
my applicant is not just through the next upcoming hearing the following day of the 20th understood all right so the with the chair's permission this matter is being carried without further notice to March 19 getting the dates correct tonight
they uh here at 7:30 p.m and we will be in this building correct I okay thank you Mr chair all right motion to adjourn second all in favor hi hi