see how okay good y good evening everybody welcome to the Milburn Township planning board meeting in accordance with this with Section Five of the open public meetings act chapter 231 Public Law 1975 be advised that a notice of this meeting
was made by posting on the bulton 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 the Town Hall at 7:30 pm on April 2nd 2025 roll call please G
herei here here Frank here here here Jonathan here here here here a couple orders of business before
we get to our application for the evening continuation of the application for the evening uh please be advised that Milburn Town Hall the building which we're in will be closed effective April 16th 2025 for renovations all future planning board meetings will be held at Milburn Board of Education the
education center at 434 Milburn a until further notice dates and times will remain the same thank you second order of business uh we have two sets of minutes to approve the first set of minutes is from February 5th
2025 uh revision of those minute minutes uh was sent out a couple days ago did everybody get a chance to review those are there any revisions to those I'll make a motion to approve the minutes on
second all in favor I all opposed all right a minutes approved for 22525 second set of minutes are from February 12th 2025 the revisions were also circulated a couple of days ago are
there any revisions to those revisions no I see none I'll make a motion to approve the minutes from from February 12th 2025 I'll second all in favor any
opposed minut is approved okay on to our next order of business uh for applications application 24003 continuation from the last meeting um oh Mr chairman real quick before we get into the potatoes I'll
just point out for the record um this matter was carried from the board's March 19 2025 meeting uh notice was established months prior to that so the board continues to jurisdiction here and decide the case at least as far as notice goes um with that I believe we left off at the last hearing with uh
cross-examination of Mr Keller who was a sustainable mil sustainable development for Milburn Township's uh engineer um I believe the board wanted to hear from our engineer Miss Callahan as to her comments on on his submission um so I think we were going to start with
allowing her to kind of run through that memo and and explain her her positions to the board and then from there I think we'll we'll turn back to further cross-examination Mr Keller Mr chairman please just just preliminarily because I want
to uh I want to advise the board of this early on as opposed to uh as opposed to later uh it's not uncommon at this stage of the proceedings uh for there to be discussion as to um further extensions and future scheduling and things of that nature there was a outstanding request
at our last hearing to see if the board could possibly accommodate a special hearing I know that they did look into that um and I know you're struggling with the challenge or trying to find a different location I don't know where we stand on that certainly the appin is still uh interested in in following
through um on that request so at some point maybe we could have a discussion about that whenever it's appropriate now no I mean we we did yeah try and pursue that yeah well why don't we uh we cross that bridge when we get towards again Mr line that's very good
that's fine um that's for scheduling the next hearing that's peral line what I do want to communicate to the board do and and make clear and I I began touching on this the last time we're now over a half a year into into this application um the 95 day
time period within which uh the statute calls for the board to take uh action on these types of applications expired in very early December tonight will Mark our 11th hearing uh in this process the applicant along the way has given s
extensions Beyond those initial 95 days and throughout this process the applicant has made a number of stipulations on the record things that they've agreed to conditions of approval plan revisions that they've agreed to make and in some cases have made and then shared with the board by way of
inter room exhibits uh in terms of a number of things uh probably one of the most important one something that we continue to argue about now which is the nature of the storm water management system and the extent to which it's going to function as intended and properly in accordance
with the regulations as a board may recall this is a substantially redesigned and revised system substantially different from the one that we initially proposed we undertook that listening to and and taking into account and and abiding by uh
recommendations that the board's Consultants had made and concerns that members of the public had expressed with regard to that um so here we are uh the last hearing Miss Dory um provide uh presented case and sheath we testimony
from her uh from her expert Mr ker who um testified with regard to planning and Engineering as well as traffic uh I know subsequent to that U Miss Callahan has submitted an updated Engineers review letter and Mr ker and Miss dor have submitted uh made submissions in
rebuttal somewhat dism made to see that in the uh objector submission uh there's a a reiteration and a rehashing of a number of arguments that have already been addressed and in many
instances proven to be not accurate through prior hearings just by way of example M story continues to insist that we' failed to demonstrate that we comply with the law coverage requirements of a conditional use when in fact at the last hearing we pointed out with specificity and identified as applicants A8 the very
exhibit that we shared with the board through live testimony demonstrating the item IED measurements that the engineer had taken and demonstrating compliance with the uh with the lot coverage requirements she continues to assert um they were doing absolutely nothing in terms of trying to provide a buffer to
the property on the Western on the western side of the property not withstanding the fact that we have a landscaping plan that does show Landscaping proposed and not withstanding the fact that we've stipulated on the record multiple times that we will repair and replace as necessary and maintain that existing
six-foot fence along the Western Property Line continues to ignore that stipulation that we've made on the record and seems to be taking the approach that we're not bound by it and somehow we have to submit a revised plan with I don't even know how you would show a maintained fense I guess would have to be a plan note reiterating what
we've already shared with the board that we fully intend to do that um you know we we have a a report from Miss Callahan that recommends additional soil sampling and testing that the applicant is more than happy to comply
with I think think the board is familiar in a number of instances in in cases where you know confirmatory testing additional soil testing with regard to subsurface conditions can be done after the fact it's not something that has to be done and submitted before the board
can take action on an application and in light of where we are now the appman is not willing to Grant additional extensions beyond the conclusion of the next hearing whenever that might be so I want to share that with the board now because you've promised to the members of the public that opportunity to make
statements certainly they deserve that opportunity should have that opportunity so I think that's where we stand now in terms of scheduling and I wanted to share that with the board ask so I think something you said is is very important I I do recall that your client made
representations about the fence dealing with the buffer to the extent you you have it read readily available can you just remind us in addition to maintaining the fence are there any other PL things that are going to be in that buffer because I know there's been a lot of as you said dispute over what
this buffer is going to be what what is required to be what it's not but I know you've made many representations about it so for the avoidance of confusion and continued debate it might be helpful to refresh our memories yeah I'm happy to do that I think that's probably a fair way to characterize it because certainly I'm not a landscape architect or an
engineer so I don't claim to be offering testimony but I do have a copy of the most recent set of plans and I can just simply refresh the board's recollection as to what the plan shows it's been submitted and it's part of our application um there is a separate Landscaping
sheet it's so we are we are referring to uh revision D to the plans that were prepared by the project AR project Engineers E2 project Management LLC rev D is in dog dated January 23rd
2025 we already have a copy of that Mr L oh you already just just making sure yes than um and this is the sheet that has the Landscaping plan um and so along the western side and I believe Mr Keller had characterized the Landscaping along the
w as Loosely as a few shrubs so this Landscaping schedule indicates that there are Serbian Spruce proposed that there are blue spruce proposed there are some Bayberry shrubs I'm
counting you know it goes all up and down the Western uh property line I'm counting 13 MPS which are Northern Bay berries those are probably more of the shrub family I'm counting six Serbian Spruce which cly these plantings how
many of them are new or existing these are all the ones that I'm mentioning are on the Landscaping plan they're all new this doesn't even take account of the any of the existing trees which are shown on this plan as well and many of them are are quite mature um they're showing arivi also as
being uh planted as well as let me see if I can give you a number of scops Thompson blue screws nine in kind of the Northwestern Corner um and I can also tell you that I conferred you know with the aate and to the extent that well we've already made
this stipulation a couple of times in terms of being willing to work with the township Forester but to the extent that um the township forest or quite frankly even our neighbor to the west we're more than happy to have a dialogue with feels that some additional plantings could be added in that area uh the applican is
certainly willing uh to work with the townships Forest and the neighbor to try to do that by doing that we're not conceding that that is a buffer as that term is defined under 6093 but again we're trying to maintain our efforts to do what we can to try to be reasonable
and cooperative and listen to concerns that have been expressed and I I think that's exactly what we're trying to do we're trying to come to the proper conclusion or a good conclusion for everybody without having to admit that there is any type of buffer required
except for the 25 officially Mr Warner likes to say do you stipulate I do officially stipulate that the applicant is is prepared to to do that and would accept that as a condition of approval if the board were to ever to see fit to approve this application right I think just as a matter of going forward like again the
arguments related to what is a buffer I think we're gonna probably defer that towards the you know the summation partion of of the hearing process so that'll be at least not right now but appreciate you answer the board's questions at least at this point of time yeah well very good that probably makes sense although I'm prepared if if need
be but appreciate thank all right thank you thanks everybody just I forgot before we proceed I appreciate everybody's courtroom to Quorum from the last meeting we could approve a little bit on cell phones and stuff like that but thank you very much please again be respectful to all the witnesses councel
board members uh please keep it quiet any conversations please go outside the boardroom to have them and if we do have conversations I just remember that this door is open so try to keep it down or move out of the proximity of the borom it's much appreciated thank
you okay so I think we were going to start with Martha Martha I think you were probably sworn in way back when 11 years back when right I don't know if you want to do it again uh safe and sorry he sarir the testimony about to revive be the the
truth hold for nothing but truth go I do as we always swear on all our board professionals to okay um I just wanted to I have some remarks tonight um I wasn't going to get into the real technical areas because I did present I submitted a report and I
hope you all got it I'm um and had an opportunity to read it so I don't believe Mr Keller is here tonight is he oh oh okay um so in preparation for tonight's board meeting
I reviewed Mr Keller's design review report dated February 25th and I watched the tape of the March 19th meeting that I was unable to attend um I just want to say with my 25y year knowledge of the surrounding neighborhood and access to
Township mapping I feel Mr Keller made a number of assumptions that are inaccurate now this I wrote this up before I got today's report from Mr Keller but to help the board understand the reality of the neighborhood drainage
system I prepared to response report and I hope you've had an opportunity to review please understand that my purpose as the board engineer is not to advocate for anything other than a project plan that will be protective of the town in my opinion the system will function
within the D guidelines and our Municipal ordinances there may be areas that need to be tweaked I I get that I am advocating for more soils testing we do need to determine exactly where that
uh seasonal high water table tends to sit so that we can understand fully that the the design storm water management system that they've designed is is Will function so um anyway accordingly I see no
negative impact upon the township storm waterer infrastructure and no impact on any Downstream residents for any given site there could be many storm Water Management Solutions that would meet the criteria established by the D in the township my role as
board engineer is to review the applicant's design to ensure compliance with the regulations and the local ordinances the applicants engineer has demonstrated that Peak runoff rates will be reduced to 50% 75% and 80% of the
existing Peak runoff for the 210 and 100e storms respectively the system employs green infrastructured devices as required by the D such as perious Paving sand filters the vegetated soil and other
devices the use of a closed detention system on the site may be preferable due to the nature of the soil and the presence of seasonal high water tables as evidenced by the horizontal seeping soils indicating no downward movement of water which would impair groundwater
recharge capabilities though my review is technical in nature I also feel that the current design is aesthetically superior to the original design which utilized exposed detention Basin so I really feel
that this is something that you're not going to see it's not going to be a big Basin at the surface that everyone's going to see as they're driving down on Short Hills Road this is all an underground system um I think we'd agree that
permeable Paving is a good environmental use it's it's more expensive than regular Paving but it's it's really something that is we would like to use in our own designs if we could get enough money to PVE our parking lots
like that um I do agree with Mr Keller's request as I said for additional soil testing especially to confirm the depth to the water table I believe the applicant engineer however is in a better position to explain how various design
coefficients that were used in the analysis were calculated that was one of the questions that Mr Keller brought up for further technical clarification and overall design approach I would suggest that Mr Keller direct his concerns and questions to the applicants engineer for
his response and unfortunately I don't think E2 PM is here tonight so unfortunately our engineer is in Italy it's fortunate for him that makes you feel better he said that the weather was cold
oh okay now it feel so much better okay so um that's all I really wanted to say um I wanted to keep it very general as to what I saw in the reports I really think
that uh the the design can be tweaked I know there issues that Mr Keller raised with the rain Garden I think those can be addressed I had a problem with it as well because I and I saw a couple different iterations on the plans and I really
would have liked to see much more detail as to the size of it and as it it runs down like a rain Garden generally should be more horizontal and this has more of a swail like characteristic to it so he did show some stones at the end of it
and I'm wondering well where does it go so I need more detail on some of these things but I think they're minor and I think that these are things that could be addressed I'd also like to see them addressed on plan I would like to see a revised set of plans to show some of
these things that were not you know that are lacking I feel are lacking right now so I don't know if anyone has any questions and one for you you mentioned the storm water system was closed so I
had inquired whether or not they're perforated pipes or solid pipes but when you say it's closed does that mean it's not going to leak one way or the other in or out or um the way the system is designed and I've had extensive con conversations with John fanti even in
Italy I called him and I didn't know he was in Italy a half an hour later he said well I'm in Italy I'm like oh okay but what he didn't show on the plan was a he didn't call out a liner around that brick system the
storage uh detention system that's below ground and it is this is part of the plan is to put a liner around the whole thing to hold water so it's holding water in the same way that a surface detension Basin would hold water but you don't see it it's not going to sit there
forever because there's a little orifice control out the bottom of it so that instead of all of the water going through a 12-in pipe and tapping into our storm sewer system it comes through a very small opening so it's it's it mitigates the
flow um it's sort of of like sort of like how a dam would hold back water and just allow a small amount of water to go over it sort of acts like a dam but underneath the ground it's like a sstn so it's holding water but just releasing
it slowly into our storm sewer system so but the liner is impervious and it doesn't permit infiltration and it also does not allow if the storm if the uh water table Rises
up it doesn't allow infiltration of the water table into the system the question is um what separation you have to have from the bottom of that brick system brxx it's a
industry uh label the question is how much depth or how much distance you have to have between the bottom of that system and the top of the water table so that's why determining where the water table is is
important so so so it's still not solved yet as far as there's still no there's yes you're right it's still not perfect like you couldn't go out and build it today because we need more details with it um there have been so many iterations
so there is still going to be a sand filter is that yes correct and where is that going to be the sand filter is on the west side of parking lot and um what happens is the water sheet flows over the parking lot there's an area of
permeable Paving in the middle of that so that water that goes over the permeable Paving will go down and go down into that brick system after it filters through gravel layers and then it goes down into the detention area any
water that misses that or water that's beyond that permeable Paving goes into first the vegetated soil and then into the sand filter and that's where you get your quality control the removal of
total suspended solids and that filter system is also wrapped so not seeping down into the ground and there's a A orifice control out of that sand filter system that ends
up back in the brick system and so it is all collected it's filtered and then it's collected okay so I I had I think Mr fante said at one of the meetings that the sand filter was going to have underd
drains an under drain to get it over into the brick system right but I um my understanding is that if they're going to be underd drains with the sand filter then that makes that sand filter not a
small scale sand filter and one that is then in table three of the bmps which require some kind of waiver I have I have my table chart over there I'm some of these questions I can't answer off the top of my head so
these are these are things that you may want to pose to Mr fanti when he is available the next time I can't you know I don't know every intricacy I know in general how the system works but okay so Mr frony would be the person to ask
about the waiver that they was require for that s okay right Mark can you can you comment about the buffer you know there's been a lot of back and forth and I'm just hoping to get your interpretation on uh you know
um it's it's really more of a planning kind of a thing uh out of the code I don't know yeah if you want to ask Graham or planning or zoning I did answer that question in my
report but it is more of a planning thing one more question for you for me if uh and I know you don't know just said you don't know the details but even with all of the questions questions or issues that Mr Keller brought up is
there enough margin in the way the system is designed to handle everything that he has brought up or that would it need to be enlarged some way or modified um the way I would see that it may have to be modified is if it is too close to
the seasonal high water table in that case you would have to shorten it and maybe spread it out so it would be shallower but not as deep but it would still function in the same manner it's an like an industry accepted way of handling large amounts of storm water
and they use it on Industrial sites they it's you know this is actually kind of a small place to use it a small area but it it would work here so it but it could be modified and that's something
I'd want to ask John fanti about or have him look at but again he would need to get some better information with regard to where the seasonal high water table is so and if they do more soil testing will
that sort of solve the um question about whether it's this C or D soil uh yes it would you would yeah because the um the CATE the category the hydrologic soil group
category of in the booten soil strata it's generally a c and he assumed a d which is is uh less or no infiltration um if you do strict soil testing you go
out and take samples you can determine which one it is exactly and there's combination soils and as well in this area as all of you who live here if you've ever done work on your house and they dug in the soils they're different
from just because this is terminal Marine here where we are this is where the glaciers ended and they just once they started receding they just dropped everything they had here in Short Hills I mean this is really where it stopped
areas of it and I've been doing this for 25 years I've been inspecting dryw installations on Residential Properties and other bigger properties and it's amazing to go from you can go from one
site at one house and right next door there'll be sand and on this site there's clay and it can be just 100 feet apart so you never know what you're going to get so I think it really does warrant more soil testing especially in
areas where we specifically know like the sand filter or even the rain Garden what what kind of soil we have it it just gives a better Comfort to know what you know whether or not the bmps are going to work so then without that additional
testing would it be fair to say you don't really know for certain if the bmp's um yeah I think I I would say that I would want to have a little more comfort knowing what's what's actually out in the ground and where that water table
is can you make that an official request certainly Mr L I yes I understand that's a request yes understood okay yes so you had mentioned that if it if the water table is too high they
would have to spread over a wider area the system is there room in your opinion on this property to spread it oh yes yeah I think so they could they could spread it out over the whole width of the parking lot and length of the
parking lot right now it's concentrated beneath where the permeable caving regardless of the soil sampling it is a issue that could be remedied then yes MH okay Mr LaVine do you have any questions for Miss Kell um I do
not M just before we end with her um just want to confirm that you guys would be uh complying with everything in her March 25th 2025 memo is there anything you took accept Okay no got thank you okay I guess we can bring up uh anyone else has any questions for before we
dismiss her no okay um I guess we'll bring Mr Keller back up then if further across can I just ask Mr Question um is Mr fante coming back yes okay so he will be back at our next
meeting yes okay thank unless he's going to Italy again I don't know about it certainly our maybe he'll stay maybe he'll stay what point does the public get to ask questions Miss Kahan okay we had thought
afterwards but if typically board professionals aren't usually questioned by the public I mean that's certainly something we could entertain I don't know I don't think it's we needed tonight that's how we've been do yeah just depends on the that we go okay all
right s all right you're not done yet unfortunately okay are there any MERS public who would like to ask Miss Miss Callahan a question on her testimony or her report hopefully everybody has gotten the report from the
website I just had one question the app stipulated they would comply with the March 25th report so will you be reviewing revised plans will they be submitting the soil testing riew for compliance I'm assuming they would the
soil test Bings were included with the storm water management so right with the additional soil testing and revised plans be submitted before the next meeting I think it's a question for the applicant hi ask question you're G ask
question e harl 45 yeah okay cool they're busy so we'll we'll take a question from you sir you want wait for them all right um spell your name e t a i r l h a r e
l 45 Woodfield Drive Short Hills um I just had a similar question to Mr biller um whether it's a development like this or a Home typically there's like engineering
designs dry Wells things of that nature is it common if a applicant gets the building permit or gets the the opportunity to build this they go out there they start digging they find groundwater or whatever is it common to
go back to the engineer and request changes that that's exactly what we do when we're doing residential inspections yeah and you come up against an an issue that you didn't expect right and maybe you're you you call us and you say look
dryw is just not going to work I got water pourn into this we don't make the decision we don't design it right but we we would call the engineer or you would call the engineer but in any case your engineer would come out look at the situation and redesign the plan would
resubmit to the township and we' take a look at it at that point so I can a site like this if you're talking about a three and a quarter acre site I mean there's only so many test holes that you can do I mean obviously you can do more in the areas where the where these dry
Wells are going to be dry Wells bmps well the yeah bmps is just a general term for different devices that infiltrate water treat storm water so just basically it's not unusual if you approve a set of plans if there's a
issues that you run into then Builder whoever comes back and you can redesign it and then resubmit it for your approval to his point you can widen it you can make adjustments you can move it slightly 10 feet over or whatever right yeah what you couldn't do is
eliminate it Al together corre you know it would have to be something that is in keeping with what's been approved may be slightly modified but at some point you have to use good engineering judgment and and understand that we're not going
to all of a sudden change the characteristics of the flow we're not going to change uh what the D requirements they've met the D requirements they've demonstrated that they can't change it in such a way that those D requirements are no
longer um it being followed those standards are being followed and we wouldn't permit that to happen right so got it so just basically just to sum up I mean um um in your professional opinion based on the size of the property and the size of the number and
size of these bmps if there was additional groundwater you're pretty confident that it could be redesigned to still qualify with all those de regulations yes I I I think so so I'm not expecting you know huge amounts of broad
just from what I've seen in the test pits that he's done already okay thank you well um Jeffrey fill to live in Alexander Lane um I just want to understand our period it's only to question on her report and her comments on the presentation at the last meeting
when I was at the last meeting I think it was the recommendation of the object objector expert that in his professional capacity he would not recommend a board to approve the application in the state
that it was in do you agree with that his his expert opinion or you age or disagree would you recommend based on what we have now that the board approve the application as it stands you ask me that question no I'm
asking because he testified and he gave an expert opinion that when he represents boards he would not recommend to his client the board to approve the application in the in the state that it was in as of would say the last meeting
would you do you agree with that or you would you recommend the approval of this application based on if there's a substantial change that is required then we would definitely want to see how do revise plans how do you
define substantial is it based on gain these borings I would think so yes that's that's what we're we're asking to be done because that may affect the design as it's shown on the plan today I might not be that clear but is it your
recommendation to this board based on what been presented to it as of today and based on your report would you recommend that they approve the application or would you say hold hold it hold off I them information I don't make a
recommendation that they it's up to them to decide don't experts give recommendations I mean their reports I'm not going to recommend that they or that's thank you okay but will we have an opportunity to question not just the
engineer but the Planner on various reports that they have prepared we've not the the public has not had an opportunity because there are certain things that I think that had to be addressed for the record well we have an opportunity we may cross that bridge at some point all right okay anything else for Miss C Mr
Le what was the answer about uh getting this all so the answer my you know my understanding is that Miss Gall and which is very typically the case and I'm sure the board is familiar with this I'm sure Excuse Me Miss cian's familiar with this we took her request for additional
testing and sampling uh uh to mean that she would need you know want that we view that as something that can be handled as a as a condition of approval not something that would have to be performed and submitted in 10 days advance and reviewed before the board is in a position to take action on the application having said that I also
fully agree that if that testing were to show a a substantial or material change to the to the storm water management system I.E you know right now the the testimony and the understanding is that if the system has to be tweaked if you
will be due to the seasonal high water table you would do that by making it sha making it shallower and wider and there was a follow-up question is there a sufficient space on this three acre property in order to accomplish that and the answer was yes absolutely if that's not the case if we somehow had you know
not able to to solve it that way certainly we can't encroach on on a neighboring property or violate any other D regs that would be clearly a substantial change we would need to get an amended approval to do that but provided that the follow-up sampling confirms the not only information that
we provided thus far but the soundness of the design that we've submitted um we see no reason why that can not be handled as a condition of approval understanding that if if we're surprised to learn that this follow-up testing is not consistent or shows a problem that requires a significant
change in the system we would have to m kah m Kahan yes Mahan I have a question do you agree with Mr lavine's characterization that this kind of alteration would be a condition of approval rather than
require a revision of plans and 10day notice in the whole process uh I I think that it could be I mean because we're we would hold them responsible for it I mean I would follow up and make sure that it was done okay so I mean this is
what we do you think that would be a sufficient and it could be it could be submitted as as the compliant set of drawings that compliant with the resolution and all the conditions in the resolution because they submit a set of drawings that for uh resolution
compliance we review them at that point and if we an issue with hey you didn't even change the storm water system you know we're rejecting this because you know we clearly said it had to be done so I mean yeah we would make sure and we
would do all the inspections and all right thank you okay we got one more one Charles B 37 keiths road I'm um question would you be the one to
speak to the safety aspects of installing a slope Swale with water water keep it to her testimon report so I don't think we talk about safety in the report oh all right
yeah okay I'll I'll bring it up later then absolutely okay thank you okay we got uh Sten CH two um regarding the the stone water water
system um where does does the the the the the the storm War system release the the water it's connected into the storm water system that is in the street okay um I leave across under the
pro there's a cover eement that that that go out from my my my Pro was he no wait I'm sorry where two two pars oh so you're the first house on the corner yes okay so you have water behind your yard you
have the pool the little ponds and this is not at all connected to the system you have oh it's not going so the the water will be released elsewhere yes okay cuz I I did that when that pipe that was going across old Short Hills
Road I was in charge of that project and those two systems are not connected up they eventually meet in the tributary to the West Branch of the Railway but they don't meet up at your house so you'll have no impact for this whatsoever thank
you good evening everyone Natalia 20 Park Road Natalia cerina k a s h i r i n a uh so the question for me for me is uh if we do uh do soil testing we start
digging and we hit the clay so just clay nothing else there you know doesn't absorb the water and we need to make this you know water absor absorbing system much wider how will it can it uh end up in cutting
more trees cutting more vegetation no I I think first of all I think that if you hit clay this whole system is ripped and it does not infiltrate so it doesn't matter if there's clay there or not because it's not designed to infiltrate
into the soil but if we if it's the seasonal high water table that is the limiting issue if that's too high then the system has to shrink vertically and spread out horizontally it's not spreading out like 200 feet and it's
just a small amount you're losing some volume in the in the vertical plane and just spreading it out over a wider area so it's shallower and wider so we don't know exactly for by how much it's going to spread until we do the testing yeah
until we do the testing it cannot be determined yes so you agree that that's we need to do the testing before to understand for how much water it will be that's that's right and I suggested there the brick system could be you could specify a different they come in
modules and you could specify a different one that's shorter and just use more of them in a horizontal fashion but that might not be the only solution Mr fanti may come up with something different if there's a he discovers where that seasonal high water table is
he'll say okay we're going to use this kind of system I mean there are so many different ways that you can treat this and handle this specific problem so I suggested that as something that could be done but that may not necessarily be the ultimate solution if there is a high
water table so it's up to the engineer he does the plan submits it and I look at it but I don't design yeah so until we have the results of the test we don't know exactly how it's going to affect the size and how going to affect the property and overall plan of the even if
it got bigger you would never see it because it's below ground okay so it's important to get the results of the testing yes thank you Jean Pastak 342 Hobart I'm um Martha I have a question I just want to understand the practical way this
happens if something is found um after uh work has begun I I'm thinking of the property next to mine that had um been built a new home that I think got approval from your team uh and then because I uh asked a question about uh
an possible accessory use of a patio that instigated a further uh review of the plan and then what I noticed was the entire backyard was dug up and a new um retention Basin was put in and there was just more more inspection done so I just want to understand how does this
actually work like would would your team take the uh initiative to to understand the soil samplings and then uh ensure that new uh plans were made or does someone have to instigate this I really don't understand exactly how it works
are you referring back to Mr Harrell's question when he said things happen on a site sometimes that weren't planned and you didn't not really it's not exactly what I'm saying is I had an instance right next door to me uh at a property next to my home that um I instigated a a
question to your team and they did come out but it wasn't something you inspected it was something that I noticed it had nothing to do with I think accessory use it was built Too Close correct right then that ins ladies excuse me I'm sorry before we go any further M past just because you're
you're kind of giving some testimony can I I just want to swear I'm asking a question I'm just asking I'm asking a question how does how does the process going to stop in the question that you've made you've made some fact statements I just want to make sure you're sworn okay oh sure yeah okay do you swear or from the testimony provided
and may continue to provide be the truth the whole truth nothing about the truth so hope you got of course okay great thank you pres so it would be if something unexpected came up it would be noticed by the inspectors on the site okay it would um we would have a
relationship we would establish for a this is major development so for a major development we would establish relationship with the construction manager on the site we meaning the the town hall team the engineers the um inspectors in the building department we
would know who this is they would notify us or our inspectors would notice something is going wrong okay it's not according to plan we didn't expect this this would be brought to our attention if we had to bring in the architect because it was an architectural reason
or the engineer Mr frony we would bring them in would be so you're saying that it would be different because it's a major plan rather than a residential development that uh maybe a neighbor like I did had to instigate an inquiry from your from your department as
opposed to this project where you will be on site is that is that what you're saying Neighbors being our eyes near sometimes because we don't hire you know outside inspectors to go around the neighborhood and watch every single residential project that's going on but a major development we
do it it L like it was Major what was done after the fact so I'm just kind of a little worried but thank you thanks I have a question in your years of experience and if Mr Keller's testimony wouldn't have
been uh presented to us at the last meeting would you have asked for additional bore samples um I would have because one thing that wasn't clear to me and it wasn't clearly shown on the plan was that this was a
closed system that was wrapped this this was not called out on the plan and so I would once I learned that and then you you understand it's um that with a
system like that you have to be you have to know where that seasonal high water table is I I think I would have requested him to have more soil samples so I agree with Mr C right and in that what would that have process like when would you have requested that because my
understanding was we were going off your approved engineering or storm water plans right so when would that have happened well I did talk to Mr fanti just to get to understand how his system worked to make it more clear because I
was not um that's when I learned that it was a totally enclosed line system so so at that point we discussed you know where the seasonal high water table was and I didn't write a special report to say that but I knew these reports were
coming in and it would be brought up so so I have a question I need to understand this following the question that the members of the public did the inspections is there any schedule of inspections that you have to go to be
you or your team to visit the site after exavation after whatever you know in many work there are different inspections do you have a schedule when or you have to trust the construction manager that will tell you that they find something different no we don't
wait for you know something unusual to happen we would we would be out there on a regular basis or perhaps even hire someone to do the inspections for us in with an escrow fee to the applicant and they would we would be in touch with the
construction manager and we'd be checking with them like we're doing with chadam Woodland project right now um the N says project we're in touch with them they keep us informed we're on their emails so we know what's going on and we
know when we should be out there for inspections so there isn't like a published schedule that I could give you right now I you know but we would probably have a kickoff meeting get everyone on board
the whole team and you know there would be probably a quas construction schedule that would be established which you know from the second week on is probably out the window but I mean it changes as things
progress but I would expect that we would be and I would ask that we would be on the email Loop so that we would know what's going on okay Mark I got a question any idea on how long it takes to do the soil
test um they can well I don't know the test themselves can be done in a day but they have to do they may do infiltration tests which takes couple days maybe in the lab not really sure maybe Greg knows but can it be done within a month oh
yeah I think you could have them done in a couple days the biggest lead time is get equipment the schedule of of the test to get them out there with to line up someone to actually come out and do it okay they'll do the test one
day'll take about turn around results I have a question is there a specific standard or guidelines that we are enforcing for the types of sample or the sufficiency of the sample that will be provided you mean the borings that
they do the no that's it's like a specialty thing that they know what they're doing like you hire a surveyor to do a survey they know how to do it there's I mean there are guidelines but you expect when you hire a professional they're going to follow the their
guidelines were you at last heing no I was not I was oh I'm sorry I thought you were here was someone else from Joe's office here last time probably Joe fishing Joe fishing you're from his office right yeah okay right can I just in real quick just sure yeah I'm sorry I
thought you were here last time my apologies all right and just uh name for the record please uh Gregory rap all right Mr R do you swear from the testimony just provided and may continue to provide with the truth whole Tru I about the truth be got I do all great
thank okay any more questions from the board public thank you Martha you're welcome think we're next we're GNA move on to Mr Keller for the cross exam I guess the story yes good evening Mr seski and Ma Mr chair members of the board my name is Nicole Dorian with the
law firm of Connell Foley I'm here on behalf of sustainable development for milour Township so um when we left off at the last hearing we had Mr Keller's questioning um I'd like to bring up Mr Keller for some rebuttal testimony I did also submit a letter to the board um
with a rebuttal report of Mr Keller yesterday um now I apologize for the short turnaround but I only got Mr Mrs Callahan's report on Monday so I um sent a response uh right away and I believe that would need to be admitted as an uh
an exhibit I was just gonna get to yes okay so we're talking about the letter from Bowman April 1st 2025 yes and there was Al an April 1 cover letter for myself okay and that was submitted electronically yesterday um and I also copied Mr LaVine on the
email so he should have a copy of that as well um so I have hard copies with me um and the last number that I believe I left off at was 09 I don't know if there was another exhibit marked in the middle are we up to 010 yes okay
um so I'll just hand out let me just make sure I have a copy Mr line you stipulate to allowing these into the record the cover letter I'm sorry you say that do you stipulate to allowing the uh the cover letter and the uh engineer report into the into the record
as of okay thank you so um I have copies here and they have my letter with Mr tell's April 1 letter attached so I'll just Mark both of those as exhibit um o10 okay could we could we parse it out 010 being the cover letter1 being respon
do have them stapled together so I'm going to hand you out copies we can mark them separately but I did like to keep them okay so U Mr Keller was previously sworn we Mark um the first um and his license
remains a good standing yes it does okay great just make it sure thank your licenses remain in good standing yeah that they they do too okay as well thank so excuse me we're just going to Mark the um my April 1st 2025 letter will be
exhibit 010 and uh Mr Keller's April 1st 2025 report will be 01 Mr can I get clarification please so I just want to make sure I understand this um Martha's report came out last Tuesday the 25th
and you said you just received it yesterday uh on Monday Monday Monday Monday April 1 okay thank you maybe it was the 31st on Monday yeah yes and then I I submitted a response yesterday which is April 1 thank
you okay um so Mr Keller I was going to ask you to um speak to the buffer requirements first but since um Mrs Callahan has presented her uh report um mostly on storm water I I just maybe changed the order of things here um and
I know Mrs Callahan is has gone over her report but I just wanted to highlight um a few items that um are perhaps not addressed in your April 1st 20225 report which I think are mostly some items that you're responding to that Miss Kahan
disagreed with is that fair to say uh essentially yes okay um there's a few items in her uh April 1 report that she excuse me her March 25th report that she did agree with you on your way um um on the first page um she said that
they needed more geotechnical test borings um can you just generally explain to the board as an engineer why do you install these geotechnical test borings um and why do you think in your opinion the eete board should insist on this testing being performed now and not delegated for resolution
compliance I mean this is the basis and the core of storm water design you cannot design a storm water system without geotechnical information as to the soils um the soil composition itself is
one um the water table is another Bedrock which they haven't found here is another aspect of that um they had done three tests back last year in March of
24 um which didn't cover all of the basins that they had originally designed when they modified the design they did additional testing two additional tests in January and those two additional tests
were in the western pervious pavement area they did no testing where the sand filter is now proposed they did no testing at all where the so what I call the southern pervious pavement areas south of the building
it's the the BMP manual the best management practices manual that's a technical guide that goes with the storm waterer regulations established by the state at njac 7 colon8 are the
guidelines it is clear in those guidelines that you must per perform two soil test in every BMP BMP meaning that storm water man facility of
whatever kind that it is it's not oh well I do it in a certain area the rules say You must do at least two and depending on the size you may have to do more so if that pervious pavement system
gets bigger surface area because it's in this seasonal high water table then that area maybe reach such a size that two tests are not sufficient so you know there's a lot of unknowns
here because they haven't followed the rules and the GU technical guidance on how to design a storm water system and you know I have no doubts about Mora's abilities to analyze that
but they haven't given you the information and as I said at the last meeting you know yes as a board engineer it's Municipal engineer are that role is to provide the board with guidance but we
don't vote we don't make the decisions and in my opinion and Miss Callahan has her you know she's put her position on on the record is that has at this point with the lack of information that's
provided to me I wouldn't make that recommendation to my board that we'll deal with it a resolution compliance not on a major development there is so much missing information that I wouldn't do it but
that's me but it is not in right now what they've provided the reports that they've submitted are not in compliance with the rules they haven't provided the information okay and you you spoke about the regulations state regulations and those
regulations are incorporated into the Township's storm water ordinance correct correct the municipal Municipal storm water ordinance mirrors and follows the states towns are allowed to make them more restrictive but they can't be less
restrictive than what the state says and I didn't compare it word for word but essentially the municipal ordinance is cons you know matches what the state says um on on the sand filter there was discussion about the sand
filter having an underd drain well there's no soil test here if that sand filter which has a level bottom because the top is matches the parking lot it runs from I don't
know about 7 feet deep to 10 feet deep um the uh bottom of that with the underd drain if that's in the water table that has no function it will not
provide for the storage will not provide for the water quality measures that are required and that underd drain pipe is going to be full of water the rules the two soil tests that they did
in the pervious pavement area on the western side of the building under the rules modeling of soil and they did it during the appropriate times of year you you're you're supposed to do it from January to April
1 um and all their tests were done in that time frame that this five soil tests that they did do showed modeling of soil which is representative of a seasonal high water table they also found seepage
in most if not all of those soil tests which again is indicative of a seasonal high water table that system the storm brick system and we use it to in our designs whether it's
an infiltration system or it's a sealed system a closed system cannot be below the seasonal high water table based upon the information in their own report those two test holes in that area show a seasonal high water
table of 318 the bottom of that system is at 312 it's 6 ft into the water table based on their own soil records you can't do that that's not
consist compliant with the regulations um So based on that uh is it your opinion that the applicant hasn't met its burden to demonstrate compliance with the township stor and water ordinance uh yes and and I think the board can say I feel strongly about that
position um I review a lot of storm water I also file a lot of uh development plans file a lot of plans with D um and I'm not I don't think that the
statements that I've made um are unreasonable or un inconsistent with what has to happen on any storm water design um in this state storm water regulations are challenging they're
difficult but those are the regulations that we have to follow the state amended them in 21 to require green infrastructure and they amended them two year almost two years ago now to add additional runoff yeah we now have to
design for the year 2100 in addition to today's rainfall events and the requirements for soil testing have you know evolved over time as well um but they have not complied with either of
those portions of the storm water rules in my opinion okay and you heard Mrs Callahan's testimony that um in this area it's a common to find terminal Marine so you don't know what you're going to get even very close distances did you hear
that might change drastically is that right yes so um does that uh highlight the importance of this geotechnical testing that uh Mrs Callahan and you have suggested absolutely I mean absolutely
um as far as I I didn't really look at the soil logs so much for the soil type I looked at them for seasonal high water table um you know they they they have stated that the soils are not suitable
for infiltration um but it's really irrelevant because they have a high seasonal high water table so um you know it it's not that has been the the kind of the critical
element in our review is meeting compliance with separation to seasonal high water table um and and they have not shown that they the design complies with that um and in Mrs Callahan's
testimony she also stated that she was reesing this additional soil testing because it may affect the design that's on the site plans did you hear that yes um so is it your opinion that um there's not enough uh information or data for this board to determine whether uh the
the storm water system can function as it is actually designed on the site plans 100% yes and who makes the decision as to whether um the uh the site plans are compliant with the Township's ordinance well I mean that's the role of the the board's
professionals um providing guidance to the planning board but ultimately decision has to be made by the planning board they said the professionals we don't vote we provide you technical advice for you to make an informed decision so the technical
compliance um and I'm not saying that there aren't certain things that can be deferred um for further you know for review as part of resolution compliance but this is in my opinion far
from ready for the board to act upon okay and so just one other item that Miss uh Callahan agreed with you on page three of her report item five she agreed that the ripari and buffer measurement um was from the edge of the water surface instead of the top of bank and
that this shifted The riparian Zone did you see that I did um so she agreed with you that what was depicted on the site plans as the raran Zone was actually not accurate that's correct as shown on the plans correct okay so that would also need to be revised correct I I also
believe that the it's a a technical aspect of the typically head walls reparan zones truncate at headwalls they you draw a parallel line in this particular case the stream as soon as it comes out of the head wall makes a Bend
to the right so if you truncate it you're not actually getting a 50 foot repairing Zone to the stream because it makes this 20 30 degree Bend and it should be
measured from that the parallel to the stream 50 feet and in that case it does extend into the parking lot if it doesn't you know rules can't cover every instance um if if the stream came out
straight yes truncating it at the head wall is appropriate in this case the stream bends and I my interpretation of the rules is that you have to measure from the top of Bank perpendicular to the the stream and not necessarily where
the head wall is okay and Mrs cakan agreed with you there and that information is currently not on the site plans correct um She also asked for further de details regarding the operation of the the the Brick system um and the storm
water system to ensure that it functions as it's designed um is that something else that you would also uh require or recommend yeah I agree it was something I brought up in my first review is there was nothing that they said they were
using a storm Breck system but there was no information on how the prvious pavement was related to it I had the same concern that Miss Callahan had in well you know what do you how is this
put together and the fact that it's has a geomembrane around the outside of it does make it a closed system but again as I said at the beginning it doesn't matter because you can't still can't put that even if it's closed you can't put it below the
seasonal high water table rules don't permit it okay so those were just a few items that Mrs Callahan agreed with you and is it your opinion to just those few items even those you need to the applicant needs to submit revised um site plans and storm water management uh
maintenance manual in order to comply with the Township's ordinances correct there's there's not enough information to ensure that a compliant storm water system can be designed for this property without
creating other zoning issues with the application there's just not enough information okay I'll just ask you to address the other items in your April 1 report where maybe there was some disagreement or you responding to some
comments made by Miss Callahan yeah um there were some technical things about the um how the stormw calculations um were uh prepared I think one point
where um Miss Callan and I are not in line um is about um this is clearly an urban Redevelopment area but the township
ordinance as well as the state regulations do say if you're in a metropolitan planning area a pa1 which Milburn is um it's considered an urban Redevelopment area but when you read the definition of urban Redevelopment area
one of the first things that says is that it's previously developed lands I talked about this last time it has to be a previously developed area to be considered an urban Redevelopment area
and the um I just want where did I put it number six on page four is what you're looking thank you I'm glad you I can tell you you've heard my report then um
so the municipal ordinance clearly states it says Urban Redevelopment areas previously developed portions of areas that are delineated on the state planed policy map um the D's FAQ frequently
asked questions which is in the BMP manual clearly states that previously developed are not areas you know it says areas that simply have been or once have been cleared of vegetation are not not considered
previously developed if Woody vegetation has been reestablished there are areas on the Western and Southwestern portions of the site that are wooded there is not maintained lawn it is a wooded area with
Leaf litter on the on the ground the same along parsonage Hill Road and and some Frontage of old short Hills Road those are wooded areas those are not under Municipal ordinance or the state
regulations considered previously developed that is important for two reasons one is the way they've analyzed the runoff from the site is they've treated everything if it wasn't a driveway or the house itself they've
treated as as lawn that's not consistent and what that does is increases the existing runoff wooded areas have less runoff than a maintained lawn so that's
increasing the existing runoff which when you say you comply with the reductions your reductions associated with what comes off under the two-year storm if you have 20 cubic feet per second of
runoff from the site today you have to reduce that to 10 um well and they're saying they do but it it the if you use lawn and not Woods you're getting 20 if you use Woods maybe you'd be at 15 and
your reductions would have to be that much lower remember they're taking out lawn area they're taking out wooded areas and putting in parking lots in a bigger building parking lots in bigger bu in buildings have a much higher
runoff than grass and even wood and certainly if woods so they're meeting a reduction to what I believe to be an incorrect standard um so it's it your opinion that
the what the calculations that the afan is presented don't comply with d and the Township's um regulations and guidance for quantity quantity reductions now um and they have not addressed
groundwater recharge at all uh they're saying that they're exempt and the the the municipal ordinance and the state rules don't uh they're exempt for loan areas and payment areas and so on
because that's previously developed wooded areas are not previously developed and how would they have to address storm uh groundwater recharge well if they they would have to do the calculations to show that they comply
um and that goes to soil testing now the soil testing that they have done um is for permeability to see where the seasonal high water table is and to determine if they
can uh infiltrate water into the lower levels um we also raised the point that the soil survey says botin soil is a soil Group C but based on their limited very limited
soil testing they said well nothing infiltrates into the soil so really it's a date you can't the rules also Define the state regulations in the BMP manual talk about how you can
change the soil classification and it's a different type of soil test it's much more extensive you have to do a lot of testing throughout the entire property in the top 40 Ines of the soil not down8 feet
below ground where the bottom of your uh storm Water Management Facility is you have to do it in the upper levels I have this burned into my head because we're dealing with this on a project of
our own where we are making the case of changing the soil type and they have not done any soil testing that gives them the ability to say nope it's not an a soil type c it's a soil type D
it's a completely different type of soil testing and they haven't done any of that could you talk about the uh the sand filter there's a question about the sand sand filter do we know where the sand filter is going to be located it is on the western side of the property
closest to a an existing residence to the west and the the applicant I I believe is stipulated that they're going to take the the sandfilter out of the buffer area and relocate somewhere in the property do we know there where that is no so they haven't depicted that on the
site plans no so we don't know if that uh sand filter will be able to work in the location that the applicant eventually chooses I don't know that it works in the location that they've currently shown it on the plans because there's no soil testing so if they put it someplace else again without soil
testing you can't make a determination as to whether it complies with the municipal regulations or the state's regulations okay are there any other comments in your um April 1 report that you wanted to address regarding storm water storm
water uh yes um one on on the um discharge of the the uh onsite storm water management facilities into Old Short Hills Road I agree with Miss Callahan that the system
as currently designed assuming it works certainly has a beneficial impact on the properties to the South because today the majority of the site drains Overland to the South um they're proposing to cut that
off and pipe it into Old Short Hills Road old short Hills Road at Park Road is the townships I didn't realize this until somebody brought it up I just thought it was a County Road it car carries a
County Route marker but from that from Park Road South that road is yours they are taking their water which they're reducing the rate of runoff not
the volume but the rate of runoff um to the uh design point but now they're putting it in the street it doesn't go there today it eventually does I'm not exactly sure where I'm sure miss
Callahan knows because I know she's been here for quite a number of years and knows the town very well it does eventually get into the town's stormw system at some point but not at Park Road so that water that's now being
proposed to be piped into the municipal storm sewer system where it doesn't go today they have done absolutely no analysis of those pipes to determine if those pipes have capacity for the water that they're now putting there which
doesn't go there today so I'm not saying it couldn't be handled but we don't know they haven't and if and if those pipes can't can't handle it and that water gets put into those
pipes the system is going to overflow and back up you know and then it becomes a Township issue as a municipal engineer Municipal Engineers need another headache like we need a hole in a head
um so they haven't analyzed it to me that is another significant defect in the design is it your opinion that that uh analysis should be done now yes yes um so I wanted to ask Mr Keller next
about uh the buffer requirements but uh I didn't know Mr chairman if you wanted to take uh an opportunity to question him on storm water or if I should just proceed it kind of gets yeah I mean that kind of gets into planning
now plan okay Mr sh I recommend just let's take one piece at a time work on the engineering stuff and then come Circle back to this planning gram you you don't have anything else to say tonight it's just what what Mr Keller has to say as far as planning
goes um I mean if you know there's going to be commentary related to the buffer you know I'm happy to respond okay he hasn't provided any to that okay all right let's take questions are there any questions from Mr Keller from the board I had a question um so we we've heard
throughout these proceedings that this is a fully conform said we've heard uh throughout these proceedings that this is a supposedly fully conforming application in your expert professional opinion is this indeed a fully conforming application
you don't have the information to make that determination in my opinion no to me looking just at the storm water and some of the at the last meeting I pointed out some items about uh the conditional use criteria I don't think
that you can call the is a fully conforming application no thank you mentioned two numbers with regard to the water table I think it was 312 and 316 potentially uh 312 is the bottom of
the give or take of the storm brick system um the sand filter this goes back to my the sand filter is has a bottom a level bottom at
elevation 313.2 I don't think I testified that I don't um I don't remember testifying the 316 um I said the bottom of the storm brick system is six feet
below the seasonal high water table based upon the modeling found in the soil locks and 312 is the bottom of that what measurement is that inches feet centimeters 312 is is elevation 312 it's
feet feet above sea level okay um and then another question I had is you were talking about the runoff and explaining how they used grass and there's other there is foliage trees and things on a part so it sounds to me that they may
have overstated the runoff this is under existing conditions so having a higher EX existing runoff means that you only have to reduce a lesser amount so um you actually regardless you
have to accurately calculate what the runoff is and when you I'll try not to be too technical what the land cover types have different um runoff coefficients you
know basically if you have payment pretty much everything runs off if you have Woods it's a much smaller amount runs off a lot of it is trapped and absorbed grass is kind of in the middle so saying that everything's grass gives
you a higher number which helps when you're trying to meet your reductions in the proposed because you have a lot more impervious coverage which has even more runoff so that's why applying the the
correct coefficient to the wooded area is one it's required in in the rules you have to you know treat the ground cover based on what is there um it's not all open space and long wood it is different
um so and then I have a related question I guess from Miss Callahan to this testimony are you concerned that the applicant has not tested the storm water system the capacity of the storm water system um not particularly I I offand I don't know
the size of the pipe but I think that it would be able to handle it because the water that's coming out of that brick system through the orus control is not that it comes out very slowly so it's not like it's a 12in pipe that's flowing
full force taking all the water from the site at one time it's being throttled back through that small one small 2 and a half inch PL it's discharging into the system so um in my opinion it our system
can handle it and if I recall it's similar to testimony you've had for other projects like Annie saids and things like that yeah I be happy to have fan do that calculation it's a simple calculation probably help we could ask
them to do that I have no problem with that and as I said I have no problem with the additional testing so you know we're agreeing with that right understood on this line uh is there enough margin in the system that just
reducing the size of the outlet would remedy the the situation or is there still not enough capacity in the system you mean the existing Municipal system no I'm sorry before the uh the brick system so we're talking about runoff
we're going to have a certain amount now I'm not certain how many or what the wooded area what part of the wooded area is being turned into impervious pavement or impervious surface sorry so I was wondering if you knew from the drawings
or from whatever information you have that the brick system is designed the capacity for the brick system is designed to account for any deficiencies that you see and that the outlet so the release of water the rate of water
released it would be remedied by a smaller pipe it it becomes a volume issue you know you need to have the storage volume within the system um and I think the bigger Factor affecting this is the storm brick system that they're
providing with the volume whatever I don't recall the number is not compliant it's in a water table right so that's the difference I'm just about storage because they they we've discussed now spreading it out so if they can just spread it out with soil
testing confirming everything then the capacity is still okay right the volume is still okay well I mean if they H based upon the additional soil testing that were both you know Miss Callahan and I believe is critical to
this then just fix the calculations so you provide enough volume in in your whatever the system may be so that you comply you know I mean you got to figure that
the whether you have a water table issue elsewhere I think you already have a water I know you already have a water table they have a water table issue with the stormberg system today at six feet below you know it in and even though
it's a closed system you cannot the rules do not permit you to put it below the water table it's you I've had D tell that to me directly right so that you're saying there's not only the water table issue
but then there's potentially a volume issue even though whatever they design the margin in it it's not sufficient due to the groundwater recharging yeah I I not the ground groundwater recharge is a separate item within it just the quantity controls but I I don't know
whether they have did they design it right to the you know meet exactly what they need in volume or did they you know design it over um but it's too hard to tell when you have a system that just
doesn't comply second question you had said a time frame between January and April 1 for soil testing does that mean that this this time period has already passed that's the recommended time frame you can do
testing in other periods of time um and and this becomes an issue with um maybe something that has to happen at at construction but you're supposed to do it in that time frame you know it doesn't always work um but then you have
to rely upon a very detailed um evaluation of the soils themselves you know they they already have modeling you know the question is and modeling is indicative of a seasonal
high water table so if you find modeling on other errors you have to assume that that is the seasonal high water table so um but that could be depending on what they
find additional soil testing would likely have to be done next you know Springtime Janu well January to April and until then we couldn't have a definitive storm water system
then it it there would be a an open question about where the seasonal high water table is yes okay anyone else on the board can I go back to that question that I asked uh M are
you satisfied with that answer that we can rely on the typical expectations for the the testing but there are more stringent requirements that we need to impose any specifics that you want to mention for everybody's benefit in terms of what needs to be done so there's no ambiguity well I mean the soil
testing is outlined in the BMP manual you have the rules State you have to do at minimum of two tests in every storm Water Management Facility every BMP you have to do at least two
depending on the size you may have to do more than two you know that's the design engineer and the geotechnical engineer have to work together collaboratively to make sure that the tests are enough tests are done the tests are done in the
right locations and the tests are done to the correct depth those are all three factors that have to be done when you do soil testing so is there like a way to enforce specific criteria to make sure it's
adequate coverage everything is done well they they you know they provided in their storm water report a map showing where the soil tests were done um they provided logs um
and they provided information on the type of soils where modeling was where seepage was so they provided the information they just haven't done it in enough locations um the I I'm not sure that they even did
permeability test because they found groundwater um so to there's you do permeability test to determine if you can infiltrate surface runoff into the ground well if you have a high water
table you can't do that um um so um so there there has I I don't believe that there's been any permeability test because there's a seasonal high water table well yeah that's why I'm asking maybe it makes sense to document what
exactly needs to be done so that there's no discrepancies when it's been reviewed the actual results so it doesn't fall short of the expectations it's all in the BMP manual we we all follow
it so this is more of just a clarification just to be absolutely clear on what the issue is because we have your original testimony Mr fante's Design Martha's response and now your response to that just with respect to
the inadequacy of the design of the brick system specifically that it makes no difference whether it's sealed or not because this was the response the resp you know the response to the question of whether it sits below the seasonal high water table was well it's sealed so there's no infiltration and
you're asserting that it makes no difference whether it's sealed or not it cannot be located below the seasonal high water table and you're saying the current design has it six feet below and that is based just to clarify for me because I may have missed this that's based on what so
the uh state regulations which the municipal regulations follow state regulations have tables tables um that Define what the minimum
separation is from the bottom of different kinds of bmps to the seasonal high water table all of them require all of them except for Wetlands wet ponds um and certain manufactured treatment devices all have a minimum separation of
one foot and in some cases two feet from the bottom of the of the BMP to the seasonal high water table a positive separation not a negative one right you got to have the bottom of the system here and the groundwater's got to be here
so there the modeling in those two test Pits on the west side of the building four and tp4 and five show a a uh seasonal high water table around give or take
318 and the bottom of that system is at 312 okay and the bottom at 312 was part of the plan that's what's on the say plans today right all right thank you okay a quick question so miss Kahan do
you agree uh then with Mr K's test testimony that even if it is a closed system if it's below the high water table it doesn't meet the rules it it would have to be above fo above even a closed system at least a
foot above okay so as it's currently proposed does it meet the guidelines the way it's proposed today right now no okay so thank you that if I may ask just a question of clarification infiltration and recharge
I guess they're not synonymous infiltration is really goes to water quality groundwater recharge is infiltration but it's a different component of the storm water regulations there's three components quantity water
quality and groundwater recharge so else uh mrvine Mr LaVine do you have any questions even Mr good evening M TR um just a couple of things for you I seem to recall the last I've been told that being too close
is intimidating so I'll um not to me yeah not to you I'm sure um I see to recall the at the last hearing You' mentioned kind of in kind of your concluding remarks that more just kind of summing up more than anything your biggest issue or concern
as a general matter with the current state of affairs is a lack of testing and more testing more data needs to be gathered more testing needs to be done as as as a basis for yes you know there's other things that need to be done but there's no point in doing them
with without knowing what do you got in the ground and you do acknowledge that some testing has been done you're just you're saying that not only in your opinion but also to comply with bmps more testing needs to be done in additional areas correct I mean what's been done is
insufficient um do you agree and gathered from Miss tahan's testimony please correct me if I'm wrong but I gathered from her testimony that's her opinion that testing can definitively establish something who's open variables that we've been discussing like the soil type
c versus D Regional mapping can be confirmed or just proved by specific testing correct it it can be but the test testing that has been done is is not yes you can do testing of
the property to confirm that it is indeed a soil Group D as opposed to C but and and there's a separate set of criteria in the BMP manual uh and in the technical guidance as to how you do that
um which is separate from testing for the specific bmps that you're designing for and is the same true for uh conclusively determining the seasonal high water table that testing can definitively establish that yeah that's
why you do soil testing in every BMP is that is um you know and the uh soil logs that were submitted uh showed evidence of modeling we discussed last time and correct that's an indicia I take it of seasonal high
water table that is correct is that just one of a number of indic or is that by itself conclusive that's conclusive by itself how would that how would you determine that modeled soil is a result of a regional seasonal high water table as opposed to just temp temporarily
trapped or perched run off you'd have to do a lot more soil testing than determine that it's it's perched you know as Miss Callahan indicated you can dig here and go 100 feet away and you get a different soil you'd have to test
more extensively to say okay I have modeling here but I don't have it here you know right now you have two tests in that Western area they both show modeling so without in the absence of any additional soil testing to show
that there that's perched in that one particular area you can't make that determination you'd have to do a lot more soil testing but you can't make that determination based solely on the presence necessarily of the modeled soil they it might be subject to a different
conclusion based on additional testing samp it it could be you'd have to do much more extensive testing of the soils to determine that there's uh a perched condition
and that would be generally when you have a perch condition there is somewhat permeable soil and then there's a lens of clay or a hard pan that prevents the water from seeping down into a lower level and then you have good soils below
um you know there's no indication of that at this point from the tests that have been done now is it your understanding that all of the uh test pits showed model modeled SW or or not all of them just my understanding based on what was
submitted that not all of the test show model SW so this is in the report from E2 project management uh the report says January 23rd 2024 so it was issued in 25 just
for the record so test hole one says modeling 18 to 108 in test Hole 2 modeling 12 to 24 in 24 to 57 in test hole three modeling 26 to 37 41 to
70 um test hole four modeling 20 to 32 Ines uh test hole five modeling 26 to 89 and that's the most recent uh set of soil sampling right four and five were
done in January this year and did you indicate as part of your testimony there was also additional soil sampling that was done in support of the initial uh storm water design well the first three test Halls were done in March of
24 um then two more were done in January of this year and it sounds like both you and Miss Callan are in agreement that in order to comply with the bmps the brickbox system has to have a separation from the seasonal high water T correct
correct that's the rules um I don't I don't like them any more than anybody else does under the under those rules um and you talked about the U developed Urban and the planning area one right uh for purposes of the
exemption from groundwater recharge requirement is area a defined term under the storm water EGS uh and what I'm what I'm driving at as opposed to sight my understanding is site is a defined term under the storm water R isn't that correct I'd have to look at the
regulations you know but the the language here some place there to go I had printed out the FAQ um well I I quoted it in
my memorandum which the municipal ordinance has previously developed portion of areas uh and the FAQ states that previously developed when determining exemption uh only includes those areas
covered by paved gravel dirt driveway so on and so forth and that areas where woody vegetation has been reestablished or not considered previously developed so that would be portions
of the development site that's how it's always been uh applied um in the uh you know in applying the regulations okay but but what you just read does not
include site and site is a defined term under the Rex I I think that's semantics it means an area of the analysis it's the area of the site and and defining land cover and
the last two that what we're talking about areas and whether they were Disturbed or whether they were previously developed or whe they're currently lawn I think we established this last time but just to double check you did not physically walk the subject property correct I I did not walk on the property
I was on the neighboring property to the West um I also um reviewed Aerials that clearly show what the ground cover is um I driven by the site
a number of times but I have never walked the site well if you're looking at Aerials that would presumably show a tree canopy how how can you get a feel for the ground cover underneath the w we have a aerial subscription service and I always go to the February or March ones
because there is no tree cover and I can see what's underneath the ground and it's a high quality uh aerial um where clearly shows what the ground cover is including Leaf Dee yes um
even even lawn areas in the wintertime have some greenness to them um Leaf litter is pure brown um if we get into and I we can probably talk about the planning aspects and the buffer but in terms of storm
water Rags that's all I have the moment please um I'm hoping you can sort of explain this a little bit so my understanding is there is a difference between soil infiltration and soil per permeability no infiltration and
permeability or interchangeable okay so it's a permeability rate to show they're essentially the same thing it's the same thing so if a test is done for soil per permeability versus soil infiltration they are testing the same thing right
you're you're testing the soil for the per the permeability of the soil to allow water to flow through it okay then my question is answer okay you're welcome are there any members of the
public who have question k please sir yeah any AD address one more time please uh e RL e t a i h a r l 45 Woodfield Drive thanks sir um I just
want to get back to the question about seasonal high water table since it's a major issue right um You Keep On referring to the seasonal high water table based on the elevations that the modeling has found right as one of the indicators one of the indicators right
they also identify that there was seepage in almost all of the test holes okay so this the the modeling that you refer to and as he questioned are the Mr livine uh um isn't always due to a seasonal high water
table it it doesn't have to be doesn't have to be but there's nothing else that's been provided and with the uh I said there's seepage in all of the test holes except for one so seepage and in
the seepage is it not all at one level it's throughout the soil profile so between the modeling and the seepage um the modeling to me and under the rules is
a marker that you have a seasonal high water table that's very shallow it's a marker of a an indication indicator yes it's an indicator can uh clay soils existence of clay soil result in
modeling uh just your opinion is do clay soil often it it it it depends I mean you know and I'm not a geotechnical engineer um but the soil uh profiles that are provided are
all various times of types of L lomy soils so there is there might be clay but there's nothing there may be clay in because I mean but every one of the soil logs shows that it's a candy Loom
sometimes a clay Loom um but the presence of clay by itself does not necessarily mean that you would be indicative of modeling but it could be no more than the seasonal high water field it's a different marker it's just a different marker but I'm just saying it's not definitive because I I I hear
you no it is this the modeling of the soil in these soils is in my opinion definitive of a seasonal high water table that's what the rules say you're saying it's in your opinion is it or isn't it I just
well it it's what the rules say well is it what the rule but you're saying it's in your opinion and yes as an expert I interpret the rules so and and the rules say if you have a modeling in the soil
absent any other indication that that modeling is caused by something else then you must consider it to be a seasonal high water table right because I I heard Martha say that that you know Short Hills and I know from experience is known for having a tremendous amount
of clay in in in so just not shown in the soil logs that they didn't so if there's testing done further test done and you see that there is clay in the soil and it could be of that as well well you'd have to depend
on what you find and that's up to the geotechnical engineer to to determine you know what that I can't I can't on something that I haven't seen okay right you're
welcome I in your experience with this type of soil that we're looking at on the site do you what type of a storm water management system would you expect would be one that you might
design for this since you have a lot of experience with this I mean you know this type of condition generally is better suited to an under drained bio retention Basin you know a surface Basin surface Bas yeah which you
know are not the surface basins when we were younger and you know under different rules which were big open grassic now every with the green infrastructure requirements all these basins are planted so um it's not oh
look there's a detention Basin you don't get that anymore with fire retention basins um and bio retention basins um are effective with seasonal high water table um again you got to meet the
separation right um and you have to you know figure out where on site that you can put this um from what I you know I can't opine on this because there's such limited soil data but you know um I
would think that a surface Bas and would be more appropriate along with perious pavement you know pervious pavement um is you know would also be effective because you create that stone bed and the impious pavement system is fairly
shallow um but it's it it becomes an area and I think I I asked was asked this at the at the last meeting um I said it's possible that there's just too much development on this property to to provide an adequate storm water system
not that you couldn't develop it but that there's not enough land left to put Basin in okay so they but they could conceivably cover both parking lots with perious Paving and have a shallower
system and that it could be something like there are number of ways to do it right yeah I mean there goes back to the drawing board with the so oil testing done he could come up with a different system that would be acceptable there
are a lot of different options in in in the the design toolbox on how to do it whether it works with the soil conditions you know is unknown at this point I I mean if it you did something
like that if the whole parking lot was prvious payment you have to do a lot more soil testing because the bigger the bigger the area it's not just two tests you know I forget the thresholds you know I don't memorize the
the whole BMP manual but when you reach a certain size you have to do more soil testing so you have to uh test a lot more of the property to determine uh the bigger the system gets or if you're
putting it into a different location um I also wanted to ask from my and I've walked the site a number of times and it's the periphery of the site that is basically the wooded area so the
southern end of the site where no disturbance will be done all along Old Short Hills Road there you know full growth trees old growth trees maybe um and up in the northeast corner um of
personage in the short that corner is wooded but there's no development that's proposed anywhere close to that so it it's it's two things one is just the fact that in
doing the existing runoff calculations they have not accounted for the those areas as wooded so they're um overstating the existing runoff it's a
higher value than it should be uh and I agree a lot of it is the perimeter they're moving the driveway so there's some disturbance where the new driveway will be to to um Parson Nel Road uh I forget if it's there's utilities or
something that go out the old Short Hills Road there's a uh I I overlaid their plan onto an an aerial um and there's an area on Old Short Hills Road where they're disturbing that area but the
southwestern portion of the parking lot extends into a wooded area that is I I think part of it is in the repairing Zone but even beyond that there are wooded areas in that
Southwestern corner where the parking lot is going so they are disturbing uh those areas with wooded existing wooded areas and putting a parking lot in do you agree that this is not that open drainage channel is not
State regulated Waters based on your information what what I had gone by was their original report had a stream stats report in it and I had done that as well um and I just went well they have it I I got the exact same number that they did
so I'm like okay and then I noticed in the second report I think I indicated this at at the last meeting that it wasn't there but they never discussed why so I didn't have any information in
you know so do you since we kind of agree it's not a state regulated water it's from a flood Hazard perspective right there's no Associated flood plan correct okay that I agree with which is why I didn't comment on that again but
regardless prend that there's repair in buffer repairing and buffer can it has defined bed and Banks and that's what the regulations say regardless of the drainage area to this if you have defined bed and
Banks which the tobo shows I've looked over the fence from the neighbor property at that there's to find bed and Banks it has a repairing so okay way I measured it parking lot was just outside
that extended when we l the um where they started at the top of bank and extended out 50 that parking lot was outside way I so okay I measured it differently because I
didn't truncate it at fully at the head wall because of so any other questions from the public I'm sorry just one followup one question I apologize I missed this the first time and it ties into what you
were explaining about your Google her you know views of of the site um you recall that on the plans in the southwest corner that Miss Callahan was just talking about the plan show some existing improvements in that area along that water course including like an old Fieldstone patio and some stairs and
some retaining walls in that general area very it shows on a plans yes and did that show up on the Google Earth view that that you did of the site well one I don't use go Google Earth we have a a subscription service called map okay
thanks so it did show that um but it shows everything around it as would it but would and and from and I also from the neighbor's property because that's fairly close to the neighbor's property I could see that I didn't go onto the
property I didn't have permission so I looked at it over the fence but it confirmed what I saw on the on the near map aial but that's obviously previously Disturbed previously developed area so at least that portion of what you're
contending is wooded and and undb where the patio itself is and and the walls yes that would be considered previously Disturbed but everything around it is not considered previously disturbed because it's Woods what about like the
the head the storm water features that are existing the head walls for instance also obviously evidence of previous disserves correct but it's in a wood area so that does not qualify that does not provide the exemption um because it runs through a
wooded area wasn't it sometimes the case if you have a develop I mean presumably if somebody was using that patio area and the steps that you know it was open at one point over the years that that becomes overgrown does that then become a wooded area yes under the rules and the rules I'm G to look one more time
because I I know I had it in in my file here uh I don't I printed out um the and this is right from the D regulations under the
FAQ um which they rely upon and it clearly states that um the emergence or the existence of Woody vegetation I don't know where it is um is not considered previously
developed even in an urban Redevelopment area it it's black and white okay Mr K Y you can put your hat down the story okay you have a question apologize more
just a quick one sure so just want to clarify for myself um yes name an address real quick Natalia Karina and my address is 20 Park Road thank you so neighbor very concerned about flood Hazard um so do I understand correctly
that the stone water management system of the applicants doesn't conform with seasonal high water number it it doesn't provide the re ired separation to seasonal high water table correct okay so it's correct so that makes just that thing alone makes this
application non-conforming correct it's not compliant with Municipal storm water regulations correct okay so it's not conforming thank you you're welcome okay Mr Keller um so we I just want to go back to my April 1 letter we
marked that is 010 and then your your um your report you just spoke about um so April 1 report we marked as 01 and that dealt um primarily with storm water but you did have a section there regarding um compliance with the buffer requirements for the application so I
want to ask you about that sure um um so the first item in your report was about compliance with a conditional use requirement for a buffer and your report addressed several additional sections of the Township's ordinances that discuss buffers um in addition to those you mentioned last time right correct that
is correct okay and in my April 1 letter I also identified a few uh tenants of ordinance interpretation um so you reviewed my April 1 letter they did okay and just to Briefly summarize um the first was consider the nature of the subject matter of an ordinance deter to
determine its fundamental purpose reading other ordinances on the same subject in Pari Materia which is Latin on the same subject take your word for okay and they must be read together and considered together um and to give Words Their ordinary meaning so are are you
familiar with those constructs of ordinance interpretation generally in general terms yes okay so keeping those in mind can you please further explain um your opinion regarding the application um of section 609 9.3 of Township's ordinances to this
conditional use application certainly I won't repeat my testimony from the last last time you know you've heard of my position that section talks about puffers yes there's one sentence that talks about various non-residential
zones but it also talks about multif family residential however in further looking into this and and one of the board members brought this up at the last meeting so we went back and looked at it and uh chapter 516 which is a section um in a zoning
ordinance about off street parking and loading um specifically DRZ 56.3 uh is entitled buffers um and there's also a section DRZ -
5168 Landscaping now the 5163 um specifically States and this 56.3 is prefaced by saying that this supplies to all properties that require
site plan approval um I'm paraphrasing that I didn't read the specific language I did read the specific language but um it says all loading areas and parking lots shall be buffered from adjoining streets existing residential use in
residential zoning districts in accordance with Section 69.3 buffers okay and there's no exemption in chapter 516 for additional it doesn't say you know it only applies
in this Z or that zone it says it parking lots must be buffered from existing residential uses in accordance with 69.3 so I I you that's the township ordinance
and putting that along with the conditional use standard which says that there must be a 25 foot buffer to a residential use plus this leads you to 69.3 which
talks specifically about what a buffer is and we had a lot of discussion the last time again I won't repeat it a buffer is not just a setback um when I was on the adjoining residential property before the last meeting you
know the applicants attorney is stipulated that they'll maintain and and and uh the existing fence which is today in questionable shape portions of it have fallen down the the the issue with
that fence is that the residential property is higher the parking lot at its proposed elevation is higher and the fence sits down in a gully it provides absolutely
zero shielding because the other report of 69.3 talks about preventing headlight clear that fence does nothing you can standing in the backyard of the house next door standing inside the living
room you look right over the fence the fence where it is does absolutely nothing um and yes 's existing vegetation there but most of it is deciduous or is limed up there are some Evergreens but not a lot and they again
don't provide a buffer um section 56.8 for landscaping um Talk States a majority of the parking area shall be obscured from public
streets and adjoining Residential Properties by buildings landscape arms natural ground elevations low Evergreens or plantings singularly or in combination um the plant
material that and I don't believe that I stated that there was nothing being proposed but that it was insufficient and it was of such a height and type that it would not provide the requirements as set forth in section
5163 and 56.8 to provide the required buffer that is a standard in the conditional use So the plan in my opinion as submitted to
the board um does not meet that standard it does not meet 56.3 56.8 which brings in 69.3 about how that buffer is to be constituted it's only 25 ft wide because
that's the standard and the conditional use um not 50 which is the in 69.3 but there's still a 25 foot buffer and it doesn't comply with the section
56.3 and 08 that apply to any property no matter where under those particular circumstances that I already red so um having a fence in its current location does nothing and the proposed plant
material is not sufficient to provide a buffer between a parking lot and the residential home next door just to clarify um section uh
56.3 specifically incorporates the requirements of section 609 .3 regarding buffers um for loading and parking lots to make sure those areas are buffered in accordance with 69.3 correct correct it
specifically and explicitly states that the buffer is to be in accordance with section 69.3 and that's for all site plan applications in the township correct correct and section uh DRZ 5.68 um has a additional language
requiring Landscaping um to obscure uh residences um using natural uh landscape firms natural ground elevations and low Evergreens or planting singularly or in combinations correct correct and that uh does not
actually refer to section 69.3 it has its own requirements regarding Landscaping is that right that is correct um So based on your review of the sections of the Township's ordinance requiring buffering um the conditional
specific conditional use requirement in section 66.2 D1 J as well as um the specific requirements for buffers in section 69.3 and also looking at um this the
chapter 516 regarding the standards for off street parking and loading throughout the township um in sections 5 point uh 516 56.3 and 56.8 is it your professional opinion um that the
application is required to uh comply with the buffer requirements in those sections of the ordinance yes they do and is it your professional opinion uh based upon a review of the landscape plan submitted by the applicant um as well as an inspection of the site that
um the proposed Landscaping on the Western border does not comply with these sections of the Township's ordinance yes that's my opinion yes um you've heard the testimony of the applicants Witnesses um there was a couple of stipulations that Mr uh Lavine
made at the beginning of the hearing um that he would work um with the Township's Forester I believe and potentially some of the neighbors um is it your professional opinion that uh the adequacy of the offer is something that needs to be addressed on the site plans
and addressed now instead of it during resolution compliance I do believe it should be addressed it should be part of the deliberations of planning and is that because it's a a fundamental to the board's jurisdiction over this application it's a conditional use requirement to have an adequate buffer
that is that's part of it that's a big part of it and also I mean I think that is a key element of uh making sure that the site plan conforms with the uh Township requirements and is it your
opinion that the the board uh is must deny the application and refer it to the zoning board for a conditional use variance if it doesn't provide an adequate buffer and accordance with the Township's ordinance they don't if if the that condition of the conditional
use standards is not met because the buffer does not meet the criteria set forth in the township ACC this board doesn't enough jurisdiction um you know the only way the board has jurisdiction over conditional use is if all the conditions
of that conditional use are satisfied if they don't if even one is not met this board does not have jurisdiction it becomes his zoning board matter um and I believe you heard the testimony of the applicants planner uh
Mr Rizo um and he referred to a buffer and a setback being synonymous do you remember that U yes I do um think about that for a second okay and and in my uh my letter to the board um on page three included
um while there is no definition of buffer in the Township's ordinances there is a a definition for setback um in section DRZ 301 and I'm just going to read that definition to you it says setback is the distance between a street or line or lot line um and that that portion of the lot
where the structures are located based upon the setback requirements of this ordinance all setbacks from public streets shall be measured from the proposed right of way or shown on the official tax map uh roof hang overhangs May project to a maximum of two feet Beyond a requir setback line as
otherwise provided in this ordinance based upon your review of that definition um do you think that the the term buffer is synonymous with a setback in the Township's ordinances no not at all a setback is purely a dimension a
physical distance that some structure use has to be set back from the property line a buffer is clearly in in its well there's no definition in the township ordinance
between all of the diff between 56.3 and 69.3 it's clear that a buffer is to be planted with a variety of different plant material and that's the purpose a buffer in 56.8 also talks about it of
having of the Landscaping the point of the buffer is to provide screening um the township uses a word obscure um between a residential use and a parking lot that's much different than a setback
which is just Well it can't be here it's got to be over there that's all that a setback is setback and buffer are completely different the only similarity in any kind of way is that a the buffer in the conditional use
standards is established as a distance of 25 fet but we're talking about what is in that 25 feet as opposed to a setback which is just well it's got to be 25 feet wide so the buffer is much more
restrictive um and is not synonymous with a set buffer and setback or not synonymous terms okay and you've heard the testimony of some other professionals who have um disagreed with the application of uh section
69.3 um you know leaving aside your interpretation you know even if you took this very narrow interpretation of the ordinance and and only looked at the introductory section of SE 69.3 um is it your opinion that the uh the planning board and the board's professionals should still look to these
other sections of the Township's ordinance to determine what should be within the buffer that's a conditional use requirement in subsection J yeah definitely I mean to 56.3 clearly refers to
69.3 so I think just in reading the 516 sections about landscaping and buffers is guidance as to what should be in there um and it specifically references to six 9.3 putting
aside you know a sentence in 69.3 I think the rest of that ordinance is applicable based on the rest of the municipal ordinance okay so it's your opinion that the applicant should provide a conforming uh site plan that provides a
25 foot buffer in conformance with these uh Township ordinances yes they do and if they do not then the application has to be referred to the zoning board correct correct I have no further direct questions from Mr Keller on this
subject any questions for the board yeah I have a question so would it be fair to say that with the town ordinances as they're currently written concerning buffers irrespective of the intent of the author is it your professional opinion that the buffers in
69.3 should apply and if so are the what's currently opposed uh conforming or not so yes I believe 69.3 should apply because it's referenced specifically in
56.3 um and the plan as currently configured they don't provide a 25 foot wide buffer because they have a sand filter and a vegetative filter strip which not objecting to the fact that
they're there is that the presence of those do not allow plantings to create the screening that is required in 56.3 and and
56.8 so um you know so the plan as currently before the board does not comply and in your professional opinion then is the for this to be referred to the zoning board or are there changes that can be made to the design so that
they can provide the necessary buffer um and be in compliance purely from an engineering and planning perspective if you remove the sand filter the vegetative
filter strip from that area and plant that area put a burm in however you do it yes then you would be in compliance with the conditional use standards that then you know dominoes into well now
you've taken out a portion of the storm water facilities can you then comply with the storm water design which I get back into we spend enough time on that um so the short answer is yes they could
redesign the site to provide the buffer and keep it before the planning board if if they don't then you don't have in my opinion you don't have jurisdiction cour so if I'm hearing you correct you're saying that 69.3 comes in
because 5163 that says buffers says all loading areas or parking lot shall be buffered from a joining streets existing residential use and residential zoning districts in accordance with sex0 9.3 correct but you also seemingly said
hey let's disregard the sentence in 6093 that says this applies to these particular zones I didn't say to disregard it I said you don't look at just that one sentence that one sentence is saying that why they crafted it that way that
part of the ordinance was amended in 2022 um to to change the construct of that um but 516 3 clearly states that the buffer has to meet the the requirements of
69.3 not to Wi not to you know as to the construction of it as to providing the uh screening that is stated in 56.3 that says You must screen a parking lot
buffer buffer that's assuming the the specific limitations in the Preamble doesn't apply well s 516 has states in the introductory paragraph I stated in my
letter it's it applies to all site plan applications introductory paragraph of uh chapter 516 yeah at 516 right here it says in accordance with 69.3 but it says all side applications have to satisfi
56.3 it's almost it's almost contradictory 69.3 says this subset have to satisfy this 5163 says everybody has to satisfy this thing over here with respect to parking and loading 16 says everything that require is site plan
approval right require I agree that's what I'm saying what I'm saying is though it's like it has to satisfy this other thing that says it only applies to a subset right so I think it's contradictory and I think it's contradictory because they were written at different times I think the intent was that it would satisfy
69.3 but now it's let me reframe it this way say this particular application was not next to a single family home but it was next to a commercial building well then 56.3
buffers wouldn't apply to screening the parking lot because it's not next to a residential use assuming that the commercial building is not in a residential Zone it wouldn't apply so but you would then go to 69.3 and say
well if I'm in this Zone and next to this use then it would apply in this case it specifically States adjacent to an existing residential use so it's the fact of this applies in all
circumstances for all applications that need site plan approval if it's next to a public Street if it's next to a residential use or it's next to a residential zone so if it's not next to one of those three things then this
section doesn't apply and you wouldn't go to 69.3 69.3 stands on its own as far as that first sentence of where it applies in those specific zoning uh
districts as it AB buts residential use of multif family so on and so forth so that's it is a little convoluted but I think it's to me it's clear that because of 56.3 and that the adjacent use is
residential 69.3 applies and and just a followup question to that and 56.8 has its own subset of uh requirements for buffering irrespective 0 69.3 correct which also says uh a
majority of the parking area shall be obscured from public streets and adjoining Residential Properties so putting aside for a second the the arguable inconsistency in the regulations based on the question you
there even if we agree for argument sake that that there is some buffering that's required as to find by 6093 with specificity is this site incapable of meeting that definition no it's Mr sakam asked me yes you they
could redesign the site to provide a 25 foot buffer so but that has you know impacts as to storm water possibly to parking um to to comply with so physically yes
can they put a 25 ft buffer between the parking lot between the resident property line and a parking lot yes the plans don't currently show that so would would it be fair to say that there's ambiguity and lack of clarity in
these ordinances and if so is it within the power of the planning board to interpret these buffer related ordinances and ultimately decide if the buffer should apply is that within the purview of this planning board well I mean I made a statement I think it's a kind of a legal argument so I'll address
it but I did make a statement in my um my cover letter that you know it's within the herit jurisdiction of this board to interpret its own ordinances as part of a pending application so um this is an interpretation issue that's been presented to the board it's part of a conditional use requirement so I think
it goes to the fundamental jurisdiction of the planning board and I think it needs to be addressed by the planning board and demonstrated on the site plans for the reasons we stated um so uh yeah I'd say that um it's within the board's power to interpret its own ordinance these are the sections that we're asking
you to look at so I'm I'm just going to assume for argument say that 6093 applies now you had expressed a concern that the fence is not sufficient even if repaired because of height of the house and topography and things like that correct how would you as a as an
engineer propos rectifying the the it needs to be put closer to the parking lot um at a higher elevation
um so that it would be a closer to the cars to provide a more effective screen 69.3 also talks about putting plant material between the property line and any fence um so it would be much more
effective to put the fence near the parking lot and then to provide a buffer area planted area between that fence and the residential property which creates a much more appropriate setting for you
know for the residential you know when you have um in I don't want to say incompatible you have differing intensity uses next to each other the higher intensity use should provide the screening and the buffering to the lower intensity use in
this case the residential so that they're being provided with more natural buffer and then the fence would be more effective should be and is more commercial in character should be closer to their to the parking
lot any other questions from board so and to be clear you know if they were to put a taller fence closer to the parking lot and they were to put plantings in the buffer area are they even able to put plantings in the buffer area because of the um Sor Mar management features
you can't plant in a sand filter and you really can't plant in a vegetative filter would be would be fair to say there' be substantial adjustments that would need to be made to this plan in order for it to be fully conforming yes if if
that BMP is even feasible pending soil testing so can I put you on the spot are you able to address this or I know we received this just yesterday yeah have you had enough time and I actually received it this morning so I actually
haven't had the benefit of a long review I do have a couple of comments prepared that I'm happy to kind of walk through um just based on prior testimony for PR meeting just to kind of take this issue back a little bit so I'm happy to share those official thoughts um and I can probably expound upon this a little bit more at the
next please um good evening everyone uh gram PTO here is board planner this evening um I did just want to take a step back because I real you were sworn in previously I have been sworn in previously but let's do it again just be sa you swear airm the testimony about to provide will be the true of the hold all
be got I do great please proceed thank okay um so I do just want to um uh kind of take a step back and clarify the conditionally use approval um for the board a little bit just to provide a little bit of additional context the applicant in this case is seeking uh two
sets of two different approvals distinct approvals from this board the first is a conditional use approval um and the second is preliminary and final site plan approval um and I think it's important for us to take a look at the municipal land use law with respect to conditional uses um and the the section
um that that talks about that um it's njsa 40 colon 55 D- 67a which discusses conditional uses of the municipal land use law it states as follows the zoning ordinance May provide four condition additional uses to be granted by the planning board according to definite
specifications and standards which shall be clearly set forth uh with the sufficient certainty and definiteness to enable the developer to know their limit and extent planning board shall Grant or deny an application for a conditional use with the 95 days sub Mission lead
application uh kind of finishes out um so in this case strict compliance with the 12 conditional use standards as provided with definite specifications and standards set forth with sufficient certainty and Def and definitiveness um
in DRZ 66.2 D1 is required for the board to Grant conditional use approval in this case regarding the buffer the conditional use standard is only defined with the specification as stated in J the minimum buffer to a residential use or Zone shall be 25
feet other potentially related ordinance requirements as indicated by Mr Keller are not applicable in this case to the conditional use approval section of uh the board's jurisdiction as they are not provided within 6 DRZ 66.2 D1 with definite
specification and standard again we lack this Clarity that we've all kind of talked about there is nothing that says what the buffer is what it constitutes within the conditional use standards um so I think uh given this uh characterization of how the municipal la land use law situates it I don't believe
that a D3 variance should be warranted if the applicant complies with the dimensional standard of 25 ft for the buffer um as the conditional use standards lack any other detail as far as what that buffer is to include um now that that that um so and then to the
second Point um that Mr Keller raised regarding um the requirements of DRZ 5163 um that section may be considered to apply uh you know but obviously there is a a lack of consistency as indicated by Mr biller we have some contrasting
language but I just wanted to note that um DRZ 5163 um that section of the code the site design standards of the 500 sections of the DRZ um those are characterized as site design standards and relief or deviations from those requirements are considered a design
waiver or an exception to site plan site design standards and they don't rise to the level of a variance or granting a variance and that's cons that's uh pursuant to njsa 40 col 55 d-51 um so I think that's an important distinction for the board to kind of consider in the in this framework
approach um that you know should the for um standards of 5163 apply or you know the board you know uh feels that that those requirements should be uh applied in this case um that would really be a site design uh component or a site plan component for review um the conditional
use uh approval is really related to the 12 conditions as stated um consistent with the with the language presented land use law I have question sure so the the 12 condition conditions I mean
you're I'll put words into your mouth tell me if I'm right or wrong um you're implying that they stand alone that don't need to be read in the context of the rest of the ordinances but that clearly isn't true right I mean we have definitions elsewhere that we're relying on in that section so we do go outside
that list of 12 in order to determine what they mean you are implying that we can't go first of all I completely agree like that we have to go to 516 to try and figure out what buffer means we have to go to 56.3 then jump back to 609 no
516 yeah jump back to 69.3 and it's very secure to tough for anybody to figure that out um so I agree with that however it doesn't seem to be the case that we can't go outside those 12 conditions as stated we do look to the rest of the ordinances at least for
definitions of the terms in there presumably other things so I mean yeah I mean I think that the the the defin presented the standard is the minimum buffer to a residential Zone user Zone shall be 25 ft it's providing a definitional standard it's not providing
what it shall consist of um what if there's fening to be included or not it's just saying that the buffer has a minimum distance of 25 feet um so I think that's kind of the understand what those terms in those conditional uses mean we do look to the ordinance what a
frontage means for example sure sure and those terms are defined defin even if they're not defined it doesn't seem like it's forbidden under the language you described in the statute for us to go further in the ordinances and I agree we're going a long way from 51 16.3 and then back to 69.3 but that's the only
thing we have and I and I think that's just my professional caution I think to the board is that you know in in the absence of a defined term for buffer I think that we should be cautious in considering that if this Rises to the level of a conditional use deviation or conditional use variance um and really
focus on what the language says because as it says in land use law um that uh the the uh conditional uses to be granted by the board according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit
or extent it needs to be contained within the conditional use standard language um so I think that's that's just where we need to be careful and that's just my professional guidance in kind of reviewing these standards um in context of Mr Kell's commentary so then are you saying it's your professional opinion
that even even though there is ambiguity here that it's ultimately up to the planning board to make that decision this doesn't need to go to the zoning board saying I I think if the dimensional standard of 25 ft for the buffer is achieved by the application
then it complies with the conditional use standard as set forth within the ordinance I think separate and apart from that if the board feels that 5163 and it's related reference to 69.3 May apply in this case those are things that can be discussed or um you know
evaluated for their conformance uh in review of the application but I don't think that it rises to the level of a conditional use variance necessitating a transfer jurisdiction of the application so basically it's up to this board to decide whether those wealth buffers apply well so to me I'm hearing that
what you're saying is it's not a threshold issue meaning that we don't have jurisdiction but it is a potential issue on whether we need for site plan approval so what you're saying is it the application is in the right place but
then we it's up to us to decide whether the plan gets I will cave out that just to say it is in the right place as long as that 25 foot space is maintained right so in your professional opinion and in plain English what does it mean
buffer for you would write the definition for buffer that everybody wants in the ordinance right now so what the meaning I think based on the language that's contained in other sections I think that a buffer um is uh
you know an area that constitutes a combination of elements such as plantings or fencing or other screening techniques uh to Shield one used from an adjacent use I think is really kind of what we're trying to define or the definitional term that we're lacking here um and I think that you know just
as uh Mr Baxter was indicating there is reference to those features in other sections um we we kind of lack that language with specificity as it relates to conditional use standards here in this case um and I will also say that you know as presented on the plans by
the applicant and you know fortunately we don't have the Benefit of Mr verony to talk specifically about the design approach here but uh that's base does include plantings it includes new proposed plantings and retention of existing plantings and defense um you know so those features are present um I guess the question that the board really
has to consider is does that rise to the level uh for consistency with five 5163 and does 5163 even really apply in this case given kind of this circular reference issue that we had so I want to keep with the screening so do
you think that what they presented is enough screening for the neighbors with the Barking the neighbors next to this property will see the parking lot or they will not see the
parking lot uh I I think that there have been representations made by both the applicant and the applicant's engineer in prior testimony that they can consent to plant more trees or you know uh I believe that Mr fronti even and you know I believe there was a a mention that the
sand filter could be adjusted and you know put perhaps additional screening could be planted um there's been assertions that the fence will be maintained or you know repaired um I think given kind of the uncertainty of how those elements will be treated with
finality on an updated plan um with as Mr L indicated you know references on the plan that say fence to be maintained or additional you know screen uh or repaired um where those additional screenings that have been referenced are going to be located um I can't comment to the degree of screening that's
proposed because there's been some assertions or some comments related to additions to that space that we haven't seen yet on a final plan so just to be clear you are distinguishing between setback and buffer that they there are differences
between setback and buff yes I would say there no to continue that question so where does the buffer end now as it resides on the site PL so we have the parking lot which is I believe where 25 ft is
measured from then the sand filter so if it's the setback right to the parking lot or that's considered the buffer where did you define that the sand filter is not like part of a buffer
well I think that that is that you know that that's something that the board has to cons I again wish we had the Benefit of Mr Fran to kind of walk us through the the relationship of these elements within the buffer area um and also to provide context as to what can happen at top of the sand filter you know I know Mr Keller just made some assertions as
to what can and can't happen um I'm not a stormwater engineer I don't know what can be planted on top of a sand filter or not um so I think that the board would benefit from some updated information as it relates to those elements on the site plan with further delineation um and you know in
furtherance to that point I think that it is important for um the board to receive an updated and revised plan set in advance of final approval in this application case um and there is case law um that does set this at CBS outdoor Incorporated versus Lebanon planning bo
uh planning board board of adjustment um whereby uh the board of adjustment really cannot condition an approval on a conditional use standard you can't accept a promise from the applicant that they will comply with the conditional use standard such as the 25 foot dimensional requirement um you have to see that in advance of
the approval so that we know that that standard is to be met and achieved and you can't let that standard go and be part of a a final resolution compliance process that makes sense can you just say that again sure sure I actually have the I have the exact reference from the
from the case um so in this case the court explained that a promise from the applicant about its future potential compliance with the conditional use standard or specification is not permitted um so you need to receive a copy of the plan that complies with the conditional use standard um in advance
of rendering your final decision on the oration so then if that's the case promises from the applicant to adhere to Something in the future it's not on the plans in front of us that's not sufficient so I want to just make a Distinction on that this is this uh case
law provision is just related to the 12 conditional use standards set forth for houses of worship can you what was the case uh CBS outdoor appropriated versus Lebanon planning buau board of adjustment so in the previous meeting you you you said that you didn't think 69.3 applied
because of that given what we've learned since then do you still feel that way or have you changed I do still feel that way I think that the opening sentence of 69.3 as Mr biller indicated uh does does not make this section applicable um but all that to be said you know this is a
site plan application the board can certainly discuss um you know what the applicant is proposing in this landscape area um there is a fence to be maintained slash prepared it it would be good for the board to have information about that on a final site plan as well and I think clarifying specifically
clarifying the dimensionality of this buffer area on the site plan is a necessity uh in advance of rendering any approval so you still feel that the reference from I don't have the numbers in front of me but from 5 to that does not automatically it make
6 you know 603 what it's an odd characterization it says you know to um I have the language here um 5163 says um all loading areas and parking lots shall be buffered from adjoining streets existing residential uses and residential Zone existance in accordance
with 69.3 so but the first opening sentence of 69.3 says all of these conditions must be met before you proceed to the following so um in in my read you know it's it's a deficiency in the ordinance and that that section would not apply so so can you read SS
516 516 can you read that one read it 56 no 56 oh I don't have the I don't have the opening sentence for 5 the standard set forth in this section the standards set forth in this section apply only to uses requiring site plan
approval unless otherwise stated that's the opening what is's following think it's narrow so it says the standards in this section only apply to site plan approval okay fine so then you go to six 516 13 and it says in
accordance with 609 and then 609 narrows it even further arguably by having the conclusion but I would like my point about that because if you look at the ordinance numbers this was written in 1987 of street parking and 69.3 was
written much more recently than that few years ago so I can imagine a situation where it was intended to apply without those extra conditions we have to go back and look at the history of how 69.3 necessarily changed well I I so and and to expand upon that point I
can advise that 69.3 was most recently um updated to incorporate the uh additional B2 zones that were part of the affordable housing compliance overlay process I don't know about prior to that point but that most recent edit is to add those Z districts to that section so and just for the sake of
argument if 6093 was edited most recently then the township committee that edited had the benefit of knowledge and could have changed that preamble to make this situation apply if they were aware of this connection which nobody
here was until very recently so I think it's arguable that nobody was ever aware of that conally it's going to be up to this Bo to decide whether it applies or not I think right that's that's clear that's what you're saying well I I'll leave that to to council to determine whether you know interpretation can be
made here yeah thank you yeah Graham and my office we're going to put our heads together and we're gonna we're prepar to put some kind of final you know guidance thing out for the board before they render a decision on this is comes to the principles of statutory construction with the ordinance and conditional use standards um gr to that point do you
have the site for that case that CBS outdoor case um I sure the attorney's in the room we're jump out oh Nicole's G yeah1 414 414 NJ super 563 thank you so much thank you for let us yes sorry
question I just going back um in your opinion you know this board had asked for a landscape architect because it's there's been some confusion as to what's been removed what stayed Etc you said
that um and let me see if I can say this but basically on a conditional use it's not to accept what they will do but to have it in a visual for us to see is your
recommendation yes I I just want to further caveat it's only related to the 12 conditions that are set forth as the standards so that would be and I could review the 12 conditions for everyone's benefit here the 12 conditions that are applicable in this case um oh here they are um it's uh the first
is that the lotel have Frontage on primary secondary or collector streets as shown in the circulation element master plan the lot shall have a minimum area of 3 acres the lot shall have a minimum Frontage of 200 ft the lot shall have a minimum depth of 250 ft vehicular access shall be from other than a local
Street if the lot has Frontage on more than one Street Lot coverage shall not exceed the maximum established for the underlying residential Zone District the minimum front yard setback shall be 100 feet minimum side yard setback shall be 40 feet minimum rear setback shall be 50 feet minimum buffer to a residential
user Zone shall be 25 feet and minimum parking setback shall be 20 ft and Building height shall not exceed the maximum established in the underlying residential zone so those those conditions need to be shown on the plan with conformity in order in advance of the board rendering a final decision on
the application so again that's where my conclusion is so your definition of of buffer or the way you described it should that not be shown how that will be buffered so I I just want to cave out that was just my on the off the cuff
definition of buffer that does not exist within the ordinance and I think in furtherance to that point it the the minimum buffer to a residential user Zone shall be 25 ft so it doesn't talk about the nature of what is within the buffer area it doesn't Define planting
specifications it doesn't Define fencing the standard that's presented here just says that that space needs to be 25 feet um and as I referenced earlier in the municipal land use law Conformity section um the zoning ordinance May provide for conditional uses to be granted by the planning board according
to definite specifications and standards which shall be clearly set forth with sufficient certainty and definit to enable the developer to know what the requirements are so as it relates to the conditional use standards it's just a dimensionality of 25 feet what the rest of that buffer area consists of may be
related in other sections of the code oh sorry I'm very confid about this and I think I have a little experience on this I always understood that when you have a conditional use or whatever use you have you have to respect and follow
the whole soing code not just the iron of the conditional use if we have the same standard like the buffer I can't understand why we cannot follow that one and just follow the 12 condition so what I'm what I'm what I'm
doing is I'm I'm making sure that you all understand that jurisdictionally this application is in the right place as long as all of those 12 conditions are met and those are provided to you in advance of rendering your decision yes you are correct in that other Provisions that the Ordinance do apply to this
application and uh other you know ordinance requirements other design standards are all applicable to this application as well the focus of my commentary at this time is really just to a firm jurisdictional approach for this board and that the planning board can maintains jurisdiction as long as all 12
of those standards as worded in their presentation are met you're saying we can agree argument say we can agree that it is it is an allow conditional use but we don't think that the side plan meets the rest of the zoning so those are two separate correct separate decision that
makes Mak sense okay I hope that helps clear things little bit any other questions so Mr want ask a question we finished question Mr why don't we finish Keller yeah finish Keller then come back
to Graham okay Mr bber I know you got questions we need to we're gonna get Mr LaVine needs to question first and then we'll get to the public Mr LaVine yeah so Eric you testified a lot about
6093 obviously you read you got a copy of it in Whole Nine Yards just for our record I know it's actually been read into the record a couple of times but just to refresh folks recollection the very first sentence of 6093 says
within the CD B1 b2a B2B b2c B3 B4 o R1 o R2 o R3 and CMO zones in which an application for development of buts a residential zone or use a buffer shall be provided period the second sentence
immediately after that says no development is permitted in the buffer area period so and we've talked we' made our positions clear you know I've made my position clear Mr ped has as well is the way at 6093 is set up with all of
the uh a through F subsections set up underneath there that those go on to explain the nature and the characteristics of the buffer that are required in those zones but it does also say under 6093 no development is permitted in the buffer area so moving
on to the conditional use the specific 12 conditional use standards applicable to a house of wor under 606 2d1 among the 12 there are two one says a minimum buffer to residential uh of 25
ft is required there's another conditional use that says the minimum parking setback shall be 20 feet so comparing those two Dimensions 606 2d1 contemplates and
allows the installation of parking within the buffer so with that being the case with those two ordinances being that inconsistent how can you reasonably conclude that the buffer requirement of 6093 applies to a house of worship if
6093 flatly says no development is permitted in the buffer area because the parking setback of 20 feet would be to a non to to something other than a residential use I don't find it inconsistent at all it's saying that yes you can put it within 20 ft but that
adjacent property better not be residential use because you have a requirement for 25 foot buffer you find that all in in many many zoning ordinances where and this is why you need to read everything and not pick it
apart is that sure you can put the parking lot within 20 feet as long as it's something other than a residential use I I think it's very clear you know buffers generally
I should I'll leave it as generally typically are between different types of uses multif family to single family commercial to single family even commercial to multif family you're creating a buffer a screen
between different uses it's a basic premise of zoning so I don't find it inconsistent at all but all of the uses in those itemized zones those non-residential zones the permitted uses are non-residential the
house of worship is a conditionally permitted use in a residential Zone in fact our planner testified to the fact that it's not unusual to conditionally permit institutional uses Like Houses of worship and residential zones because traditionally and historically that's where they've been cited people walked to them their local Neighborhood House
of worship that that zoning recognizes that reality it's very different from uh non-residential uses that would be permitted in residential zones that 6093 applies to on its face put but for that first sentence in
69.3 and we I will you know respectfully disagree with Mr pedo with you with Mr Ricky other than that sentence everything else talks about what is a buffer only that first sentence tells you where it applies in this
section other sections of the ordinance the conditional use is you must provide a buffer 56.3 says that you have to have a buffer between a residential use and a parking lot doesn't say a commercial parking lot any parking lot you have to
provide a buffer and it specifically refers you to 69.3 I'm not going to say anything different I believe that the buffer is what is defined within here
you know section I will section A defines the width of the buffer as it relates to the first sense everything else talks about what constitutes a buffer because the ordinance doesn't Define it this is the only place where it goes and says this is what
constitutes a buffer and and if you go to the very simple thing and look in the dictionary as to what a buffer is it's a shield between different in this case two uses so I won't I won't belabor the point any
further but it's my position I think Mr pedos as well and everybody else that's weighed in on this is that that but for is an awfully big butt for that first sentence is what sets the parameters for everything that follows it should not be dismissed is trival but we made that
point moving on I don't I I disagree with you you in M dory's letter and in your testimony youve referred to section 56.3 in the buffers uh for parking and loading are and that specifically says that the buffer shall be a buffer in accordance
with six with Section 6093 correct correct and there are in fact a number of other ordinance sections that are tied to the list of non-residential zones in which 6093 applies uh that have similar language is
that I mean you said it's important to read the entire ordinance correct well I mean I'm not read reading a a a zoning requirement for or a commercial Zone doesn't apply here we're talking about re
reading connected sections of the ordinance together and you have the conditional use standard 516 which talks about all applications and it brings in 69.3
that's the ordinance that's right and similarly 60664 the neighborhood business B3 Zone has a requirement that should be shall comply with the buffer requirements established under 6093 herein the exact same language
appears in 60661 the highway business B2 Zone 6662 the highway business B2B Zone The b2c Zone several of which are listed in section 6093 they all explicitly say shall comply with the buffer requirements established under Section
6093 so in at least my this is my question in at least six different places in the ordinance 6093 is expressly made to apply so with that being and understanding that the conditional use ordinance uh that was
amended as recently as 2023 does not include that language so the the question is how do you explain the governing body's failure to insert that same language in the conditional use requirements for a house of worship in 6093 if it was in fact intended to apply
there when they made a point of doing it repeated l in other sections of the orance all those other zones that you referenced are all commercial zones they're all business zones we're talking about conditional use in a residential Zone exactly I agree so you
know it's it's it's still it specifically states that it's a buffer so earlier on when M Dory was uh giving you your direct testimony you had acknowledged that you're generally familiar with some of the uh rules of construction of uh of statutes and
ordinances including the general rule of thumb that the specific ordinance Provisions take precedence over the general that General that's a general rule of is that you're generally familiar with that generally yes and in your I believe in your uh letter you had
referred to the design standard in in 516 is kind of uniformly or generally applicable throughout the the town is that your position yeah I mean what of the board members read the Preamble it says DRC 516 as a whole
applies only to uses requiring site plan approval so it wouldn't apply to a single family home um you know unless otherwise stated so yes it applies to everything that comes before a planning board or zoning board
it's applicable you must comply with that or you know whether it's a design waiver or variance you know is another story they're generally applicable and 606 2d1 are the specific 12 conditional
use standards for the specific house of worship conditional use isn't that right that is correct and that section does not contain a single reference to the buffer requirements of 6093 correct does not all right
so are you familiar with the uh Supreme Court's holding in prb Enterprises Inc versus South brunswood planning board uh no are you familiar with the Court's holding in Lincoln Heights versus Township Cranford no so this is more of a legal argument but uh the reason I
raised those cases and it's consistent with what Mr ped was explaining he was reading the specific section of the ml that defines conditional uses emphasizing the importance of having specific specifically applicable conditional use requirements that apply only to the conditional use he also
expressed that that was consistent with his professional opinion I raised those two cases because it's also been a matter of decisional case law in New Jersey that conditional use requirements must be specific and must be tailored only to the particular conditional use at
issue um which is furthers the argument as to why the general uh design standards in 516 an entirely different section from section 600 do not rise to the level of conditional use requirements and would not divest this board of
jurisdiction so can I ask you a question that that means that the only way that a conditional use can be approved if following those 12 conditions that's right everything else in the code doesn't
matter standard all of that doesn't matter in a condition of use no I didn't I didn't say that the the allegation that the that the objector has been making is that we need a D3 variance from the zoning board and I'm arguing against that and I'm getting the sense
that with the Benefit of Mr ped's testimony and some of the other follow-up questions that the board is getting a better grasp of that particular issue I really just wanted to kind of Clos the uh Clos the door on that that it is not a jurisdictional which troublingly was expressed as still
an open issue as recently is at the end of the last hearing here we are you know six months in hoping to try to close the door on that on that particular issue I think that's in further that's further of that argue are you satisfied with that yeah I think we need advice also
for that if I could just try to Simply break it down so pardon me that extend your knowledge so um the conditional use standards for this particular use for household worship right they're obious if they are violating any of these the zoning board
would need to hear the case because they would need to get okay I just back up so otherwise we'll provide some different so those Mr Keller those non-residential zones where 6093 in the first sense makes clear that explicitly
applies to are you familiar with any of the permitted uses in those zones the highway business Zone neighborhood business zones no but I'm presuming that they're all non-residential uses I didn't look at that because it's not applicable to the to this application so
it wouldn't you would it would be in line with your expectations of things like restaurants and Retail and multi family housing were permitted uses there it it was assumed and I think that's also why they said it's a 50 foot buffer and not 25 foot buffer um the the
township committee and the planning board on on review has accepted and and Dain that it's those non-residential uses need a bigger buffer but the conditional use is is 25
fet you know and there's still a separation okay you know the jurisdiction lies with the board you know that's what Mr pedo has said it's Mr LaVine opinion I think your council is kind of implying that my point is is
that a buffer is still a buffer and it needs to meet certain standards and they're not met so it's a design issue not a jurisdictional issue then if that's what collectively is a decision but there's still a design issue and you're talking about the the design
issues the characteristics of a buffer that are listed in six9 right and that you have a sand filter and a vegetative filter strip in there which cannot be put vertical you got sand and you have ground right which we've already uh represented
to the board on more than one occasion that we are willing to take out uh we're also you know putting a fine point on our storm water management plan but all this kind of notion of well do we really know if the sand filter is physically in or in in not the buffer I mean it's going to be a pretty black and white
issue either it's going to be encroach into the 25 buffer or it's not so it should not be a matter of deep discernment and uh and interpretation but be that as it as it may so we talked about the permitted uses in those residential zones so you probably not
didn't probably take a look at the bulk standards in those no I didn't so just you know by way of you are familiar though with some with the bulk standards for the house of worship the conditional use of the minimum lot yeah the 40 foot side yard setback the 50 Foot rear yard
setback um so just in informationally under the highway business b2a Zone the minimum lot size is one acre as opposed to three the maximum lck coverage requirement is 80% as opposed to 35% for our application maximum Building height is 40 feet as opposed to 32 feet for our
application same is true for the HB uh B2B Zone in the neighborhood business Zone neighborhood B3 which also is one of the zones that 6093 applies to there is no minimum uh lot area requirement there's only a minimum lot width requirement of 40 feet it permits 75%
lot coverage and allows a side yard setback of zero feet and a rear yard setback of 20 5 ft so my question Mr CER is you would acknowledge that the nature of the uses and the intensity of the uses might dictate not only the size of the buffer 25 versus 50 isn't it also
reasonable to assume that it would also dictate the required characteristics of that buffer whether or not you need this double stagger row of landscaping whether or not you need a fence along the line all of those are the things as well not necessarily no I mean it's you
know the the buffer standards talk about you know putting aside the width requirement you know it talks about how they're constructed you know maybe in a 25 foot buffer putting a double staggered row I mean from a design perspective I don't
like Devil stagger grow but of of plantings they're not natural but that's what your or that's what the township ordinance says and they don't provide this is a standard and it's clear putting aside that 56.3 and 56.8
talk about plant material and and and providing a buffer um and 69.3 is provides those standards and whether it's 25 ft or 50 feet then it can go to well if I have a
50 foot buffer I would use a bigger plant because I have more room as opposed to a 25t buffer where I would use a more column evergreen tree I would use an arbor VY instead of a a blue spruce which is going to get much larger around you know
it it there's means of working within the buffer with your plant material it's not saying well you have to use these are the three evergreen trees that you can use you know it's just saying you need to put Evergreens in there and there's a whole host of different
Evergreens that will provide a suitable buffer in a 25 foot you you would use different plants in a 50F foot or you could right but that has not been miss dory's argument throughout these proceedings she's been arguing that the exact requirements of 6093 should be
lifted and applied to the subject property in this application not going to object to the characterization of my arguments I think I made my own arguments and I I clarified them on my cross-examination with Mr Keller that the board could also interpret the orament by uh referring to those sections if they didn't think it exactly
a price I think it's character show my argument your position is set out in black and white in your submitted exhibits so they speak for themselves um I guess I'm still just not understanding why it would be reasonable from a planning perspective to assume that the
buffers that the ordinance requires for those types of uses that I mentioned that are much higher turnover higher intensity allowed on much smaller lots and much closer potential proximity to residential uses why they should be what would be logical to assume that they
should apply to a house of worship that's Ally permitted in a residential Zone meaning the the drafters of the ordinance deemed that it's appropriate provided the conditions are met in a residential Zone that has a 3 Acre you
know minimum lot size in substantially larger uh setbacks and substantially smaller maximum loot coverage but it still specifically states that you must provide a 25 foot buffer you know the the the 69.3 that first sentence and in
subsection a when it's talking about those more intense uses is why they put in a 50ft buffer you know in a way you know not to be flipped but they gave this conditional use a Break by saying you don't need 50 feet you only have to ride 25 feet but you still have to
briide a buffer you know that's from a design perspective as an engineer as a planner you know the buffer is still something that is providing a shield between two you know in
different uses leave it that way I guess my last question Mr K there's a question earlier that was posited on the basis that regardless of what the intent of the drafters of the ordinance may or may not have been is it your opinion that 6093 should
apply to a house of work it's either a question to you or Mr pedo I can't recall but as a planner and with your understanding of of ordinance interpretation isn't the whole point of ordinance interpretation to discern the intent of the after the ordinance that's actually the whole point as opposed to
well regardless of what the intent was shouldn't this be or shouldn't that be isn't the whole point to discern the in of the ordinance yeah and I think the conditional use does it it says you need to have a buffer there's two sections two other sections in the code that talk about
buffers you know and and those two sections 516 relates 56.3 relates to 69.3 so I they put in there that you needed to provide a buffer not a setback to a residential use they use the word buffer and I think
that construct was to refer to what is elsewhere in the ordinance talks about buffers questions thank you Mr chair given the time would it be
appropr ask to carry this mattere uh we can know while can we we'll get through maybe the public questions and then then he I I think Council has already said that he'll he's willing to carry to the next meeting but then after that correct that's correct
so that may not take that long but I would like to get through public question if possible is that right I just have a question is there going to be another report issued on this issue you mentioned Mr that you and Mr that would be what I'm referring to is something to guide the board when
they're final decision making it's not necessarily a report that would likely be something I I'm going to reserve saying that one way or another would likely I'm envisioning it is something falling within attorney C privilege at least at this point in time i' like to open it up to the public question just on his testimony this
evening pleas and Graham yes please Mr Mr LaVine uh Charles you question for got a stop Mr did you have any Cross of of Mr p no okay just making sure okay
um I just wanted to reserve I did have some questions for Mr P I was waiting for the cross of Mr to be finished so okay trying to keep everything orderly so sir do you have a question for Mr ped or do you have a question for Mr ped uh Charles bambar 37 Keat Road um I said
that before but then I didn't ask my question so I don't appreciate speak um uh Mr pedo are are you familiar with a planning report number one dated September 12 2024 which you wrote to this planning
board regarding this application and September 12th 2024 if I may read from that report paragraph c.2 the board planner recommends full C cut off lighting and that houseside
Shield be installed to limit glare and light pollution onto adjacent Residential Properties I I I think that shows your intent does it not Graham in interpretation of everything we're talking about
here the which number are you number three are you talking about no c.2 c.2 you're sorry um is your question is is this related to the buffer distance is that
this this in this does this not Define your intention that some material should be on the western side of that property to Shield
adjacent excuse me please conversations outside please listen important testimony thank you thank you uh uh in this report are you not making a recommendation that that space on the
west side of the property incorporate houseside Shields doesn't say what type but it does say be installed to limit glare and light pollution onto adjacent Residential Properties this is in your own report sir the nature of this
comment is really to install um houseside Shields meaning you know offsite off property to all adjacent residential uses on all sides because the intent is to reflect lighting keep the glare of any light on further further to that paragraph e
point4 in that same report if I may read verbatim the lighting plan shall be revised to mitigate offsite impacts subject to review and approval by the board planner so again is that not your
intent to uh to uh mitigate off-site impacts of of light pollution to the adjacent properties this is a standard practice that we we do particularly in this case given that the situation of this conditional use located within a
residential Zone uh and the adjacent uh streets that you know we we minimize sight lighting impacts gry area not it says it says offsite impacts but it but you're referring it on the the previous page to adjacent Residential Properties
you know are are those are those two statements not related and do they not Define your intent in September which might be contrary to your current intent these statements are are you know related to lighting specifically this is not related to my
testimony regarding the buffer dimensionality but if it's if it's merely a SE excuse me sir if it's merely a separation of physical dist with respect just we're trying to leave it to questions that Miss based on whatever
I'm getting there you're getting a little am I here am I here because it's my right to ask questions or am I here as a courtesy it's my right to ask questions don't take that right from me please I I had a line of question I was going
to may I finish I I'm very close I'm Gonna Let You qu finish I just want don't want you to get argumentative with him this is not the form for that okay just keep it a question t i just you all right okay appreciate all right you're welcome um if if your intention were
that that were merely a 25 foot spacing with no shielding no planting how would it then be able to Shield the adjacent properties as you stated in your own
words uh to limit glare and Light pollution on adjacent properties this is a standard comment related to sight lighting that we've employed on a number of different applications to employ full cut off Shield to limit offsite layer of lighting given the situation of this
site uh with adjacent residential uses that's why we included the the illusion to uh Shield the houseside shields from adjacent Residential Properties it's not related to the dimensionality nor the treatment of the buffer uh I would like to reference the planning board to this
report September 12th 2024 proceed part of the record please go back and read it and review it and incorporate that into your opinion thanks just by way of clarification just the I I remember that report very well I
remember that particular recommendation of Mr pedo very well we had stipulated on the record that we would comply with that we subsequently submitted revised plans to the board that were reflected on revision d that I pulled out and read from earlier submitted in January of
2025 where a bunch of revisions were made including revisions to the lighting plan and there was a subsequent report issued by m Callahan confirming that on the basis of those revisions in the plans that that comment was complied with um and that there would be no
offsite light trespass as a result of our applications that was listened to complied with and demonstrated by way of device plans okay thanks sir thank you very much for the opportunity okay any questions of Mr I
have questions but I think at this hour agreed yeah thank you Mr as well I obey those um yeah I was hoping but have questions we have a lot of questions yes yeah I think take more
than five minutes I think we excit okay so for just a point of clarification questions of Mr ped or questions of Mr Kelly oh okay so now on to carrying to the next meeting I guess so um we did look into having a special
meeting on the 9th and 23rd both of them presented problems for us with one with attendance the other one with venue and possibly attendance so it don't think any special meetings are going to happen this month we'd be carrying to 7th I
think of of May yeah carrying to the 7th of May um I think from all the discussion that we've had tonight we should be do updated plans
sight plans at least now we've taken we've gotten two two different issues one we have the conditions of approval for uh a conditional use which now we've separated now we have the site plan and on advisement from our planner by law we
need to have the final final set of drawings before we can approve a site plan so I do think we need the updated version of that and then if possible if you could please look into getting the soil testing done I know it's outside
now this January to April 1st uh ideal uh testing period but if a company is available and we could get the testing in and we could get a definite storm water system that would help us out a lot I understand the request I'll talk
about it with my with my client we you're made yourself very clear and we'll be prepared you know to proceed as as we see F and best on May 7th but totally understood and heard just to be clear May 7th is a regular meeting yes okay and that's
going to be at the education center not here okay okay um anything else before I make the announcement oh Mr uh Mr line we you guys are G to consent to a an extension of time on May 8 yes May thank you very much quick and I'm sorry that was the
the the name of that building and the location I guess it's written right here education 434 mbour yeah just the street I'll make the formal announcement in a second okay well nothing further um this matter will be carried to the board's uh regular May 7th 2025 meeting will be
held at 7:30 pm at the Milbourne board of education education center that's located at 4:34 Milburn Avenue here in the township um no further notice will be required so that's your announcement show up oh that
said yeah on May 7 right I saw that sorry it's getting late okay thank you very much have a good evening Mo favor yeah B oh I'm sorry I think said 7 o'