Township Board of Adjustment for April 15, 2026. Uh the legal notices required by statute have been satisfied and certification saying stating same will be executed. Please join me in the pledge of >> allegiance.
To the flag of the United States of America and to the republic for it stands one nation under God, indivisible with liberty and justice for all. Mr. Goldberg here. >> Mr. Trackenberg >> here. >> Mr. Williams
>> here. >> Mr. Schustster >> here. >> Mr. Benois >> here. >> Mr. Kramer >> here. >> Mr. Woodford >> here. >> Miss Simmons >> here. >> Mr. Evangel. >> Our in our professionals we have our engineer Mr. Joseph Voyage
>> here. >> Miss K. Keller >> and our board attorney Mr. earlier >> here. >> And just I'm sorry, but before we get started, um you know, Mr. Kelly let me know earlier today that his court reporter couldn't be present, but is on
the Zoom call. Correct. >> Do we have confirmation that that she's on? >> No, no, you need to move the computer. She's not listed as a panelist. So, she'd have to we'd have to check the attendees,
right? >> Yeah. Our IT support can promote her to a panelist. So, she'll appear and then she can talk as well. Give me one second. >> Okay. So, so with the with the Right. So, would the court reporter just digitally raise their hand?
>> I'm here. Thank you. >> Okay. Okay. Great. Thank you. >> Hey, back up. >> J technical difficulties be solved here. sound. >> I think we're good.
>> There you go. No, >> I think I think that might just mean you're sitting right next to the computer. But anyway, >> all right. >> So, uh, Mr. Kelly, why don't you tell us where we are tonight as far status of
this application? >> Actual chairman, members of the board for the record, we have the applicant 383 status LLC. So this evening, I'll tell you one term that we intend to do. I recall where the um neighbors council left off, which was we concluded their acoustic witness and they're down to one
witness as they confirmed with being their project planner. Once their project planner concludes, I assume that that um then uh their case and chief in opposition to our application will rest. We then have limited recall witness testimony. Mr. Chairman, two witnesses
recall of Matthew Bruan. Matt Duitt is the representative and member of the applicant LLC. He testified at the onset of the application. He'll be incredibly brief, a few minutes um with a few remarks for the board. Um hopefully nothing even worthy of cross-examination, but Mr. Bur will
continue testimony for a few moments. Thereafter, we're going to call our project engineer. Patrick Mlelen is a civil engineer that will appear in Fred Stewart'sstead this evening on the limited issue of whether or not a major development has been triggered. That was
an issue raised by the objector's civil engineer. Um we have confirmed that there is in fact no major development triggered. Mr. Mlullen will be sorted will qualify him. He will read for the record the benefit of a report and analysis prepared by student surveying and engineering in that regard. That
will then conclude our redirect of civil testimony with the new witness, Mr. Mlen. We then have an acoustic engineer, Ben Miller from Officer Guard. >> Can you um >> Yes, sir. >> Spell his last name. >> Mlen or Mueller. >> M U L L E R.
>> I'm sorry if Mr. um Kelly could speak up. Someone's rustling papers. >> I'm usually told to quiet down. Is that right? Yes, that's better. Thank you. >> Um, so Mr. Mueller will testify as a
licensed expert in the field of acoustic engineering. He's conducted a field study. We previously submitted a report to the board in February. He can speak to that as well as the benefit of his recent study in the field. His testimony is likely to be a matter of minutes as well on direct. Mr. Chairman, um, at
that point, we might very well conclude uh or have a very limited direct of Mr. Obia depending upon what we might hear from the objectors council the objector team this evening uh and then we'll go from there Mr. Chairman at that point we intend to rest our case we know that there's going to be a number of conditions considered if the board
intends to uh make a motion to vote in favor of the application uh we can have a I'm sure lengthy dialogue on that and we're prepared to do so at that point that'll come after the the witness testimony so >> that's correct you'll probably hear from three witnesses I think all brief
>> Mr. Rosenbach. >> Do I have to go to a mic? >> Yes, you do. >> You may have to hold the power button on the bottom to activate it. There's a button right on the bottom of the microphone. >> Right. Right in the back. >> Uh just right at the end.
>> Okay. >> The back of the stick because it's a >> the bottom of the the the little >> bottom. >> Right there. >> The bottom. >> Oh, there we go. Okay. Uh I I'm in the 98% agreement what county has said.
>> I can't hear that mic. Sorry. >> I don't think it's on. >> Well, I see a light. I see a light. >> I think it's >> Tap it. Tap it. There we go. There you go. >> Okay.
I think you're totally all right. Anyway, what I was saying was I'm in 98% agreement with what Mr. Kelly has said and I'm going to explain the 2% difference. Uh first of all um uh before I put uh my planner on the stand, I do want to recall for less than five
minutes uh uh my client uh John Weisserber only for one purpose which is we expect this is going to be the final hearing for this matter and he had a drone go over the site yesterday and we want to show
the board exactly what is on the ground as of today because what is on the ground as of today does not quite match up with the site plan that is presented to the board for approval and the board should know that. That's the first thing. Secondly, I will then put on uh my planner and the only other place
where I disagree with Mr. Cali is of course there may be other uh opposition uh people. I have no control over them. I don't know who they are but but but otherwise I I agree. >> Okay. So, you ready to start that? >> Yes.
>> All right. Then in that case, I I I I call Mr. Weissber. He's already been sworn if you want to swear him in again. >> We'll swear him again though. All right. Yes. >> And and John, when you give one to Mr. Eer, uh Mr. Oler can can mark it as an exhibit.
All right. So, so Mr. Rosenbach and Mr. Cali, uh, for my notes, I think we're up to 012. >> Are you on the number? I think that's right. We're up to 012, I believe. So, >> so what's being handed out is being marked as exhibit 012. Today's date.
Hope you all got out and paid your taxes. today. >> Kate, do you want to copy >> taxes on Tuesday? >> Yeah. Um, okay. Okay. All right. Um, Eric, can we put
this on the screen? >> All right. Very good. So, uh, we now have 012 on the screen. >> No, let me let me do that again. Mr. Weisberger, would you raise your right hand, please? Do you solemnly swear that the testimony you will give to this uh board will be the truth, the whole truth, and nothing but the truth?
>> Yes. Thank you, sir. >> Okay. So, Mr. Wescover, first, let's let's set a foundation. Uh we've we've had the board mark a new exhibit 012 as an exhibit. And could you explain before you say anything that's on it, could you explain to the board what it is?
>> This is a uh aerial drone shot that was taken yesterday. uh over the South Street Garden site. Full it's a full site >> and and you have professionally worked with this drone company before, correct? >> Yes, they've done numerous uh work >> and in fact you have in in this series
of hearings submitted prior drone shots from this company. >> Yes. >> All right. Now, what I would like you to do then because I told the board I told them what we were going to do. Now, let's do it. We are here. is probably the last hearing on this and I would like you to explain to the board what is
on the ground today that is different from the site plan that the board has been presented and is being asked to approve. Okay. Um if you look at this at the plan you'll see a blue line that goes around the site.
That's the original delineation for the um extent of the impervious coverage. And you can see that the gray which is the paved area now pretty much exceeds that by 2530 feet in many cases. Also at the front of the
property the original site plan showed like a curvy walkway. >> So Mr. Weissberger first who placed the blue line on on this plan overlaid it. >> It was it's superimposed from the Stewart site plan. >> And how do we know it's to the same
scale? Graphically, it was inserted at the same scale. Mr. >> Chairman, can we ask what software was used to do this? Is not a civil engineer as far as >> AutoCAD. Pardon?
>> AutoCAD software. >> Okay. Well, you can have your engineer take a look and and you can cross. >> I'm just curious. We're talking about numbers here in dimensions from a gentleman who's not a licensed civil engineer who's opining of an overlay prepared by him. I think it's got limited value. Um, and we're delving
into engineering testimony a little bit, but I prefer to >> it's a graphic at this point. It's not there's no calculations here. >> Understood. I just want to be sure that the blue line is to the same scale as the photograph so that we're looking, you know, it's apples and apples, right? It's >> the exact same scale as the photograph.
>> And and that's the question. We know that how >> excuse me, >> how how do we know that that is the same scale? because I prepared the drawing in AutoCAD with this with with the Steuart drawing to scale with an AutoCAD overlay
using the image scaled to the Steuart drawing. >> And perhaps you should explain to the board again. It's been many many months your background. >> I'm a consultant. I'm not a licensed engineer. I I work in this field every day. >> And what field is that? >> I'm a consulting I'm a consultant in the
engineering field, but I'm not a licensed engineer. >> Okay. So, so >> I'm in love with site plans, building construction, building design every day >> and establishing exhibits such as this one. >> Yes. >> Okay. >> Okay. Again, Mr. Callie can have your engineer take a look, but we're going to hear this.
>> I'll give you the AutoCAD drawing if you want. >> Okay. Go ahead. >> All right. So, the first thing that you've pointed out to the board then is the blue line that you have drawn. >> Correct. >> And the blue line according to the site plan is the delineation of
uh impervious service. >> Correct. Parking lots, driveways. >> And what you are saying is that this drawing, if I if I may say, heading off to the left, let's say, uh from from the buildings, it shows additional impervious coverage. >> Correct.
>> All right. Uh and what else on this is >> at the front of the site, the original site plan showed a curvy brick path. >> Yes. And in fact, uh, for the board members, what what we could refer to, I don't have any way to display it that
I'm aware of. >> Yes, we have that image. >> Okay. Well, it would be sheet three of six of the Steuart engineering plan. It's the site plan submitted by the applicant. And if we could put that up. There we go. Okay. >> Okay. So, so I'm sorry, but before you go to there, the the blue line, I'm sure
you said it, but um I missed it. What does the blue line represent? the impervious the outline of the imperous coverage >> as submitted >> as submitted >> on the site plan >> on the on the Steuart drawing >> and the the black line >> that's the property line
>> okay and >> again superimposed from the Steuart drawing >> all right and I'm just looking at so you have proposed parking in the in blue written in that area right and the then to the right you have proposed buildings
and pavement in orange Um the you know just where it's pointing to doesn't seem to line up with the building. So right am I right about that >> I hate this may not be my place
>> but I am an engineer not a civil engineer but I actually worked in the world of reconnaissance and things like that. First off the area closest to us in this picture >> will appear larger >> because it's obvious the drone is not directly overhead. It's actually
on the side to the side. What was the altitude? >> About 250 ft. >> Okay. So, the altitude was 250 ft, but the area across here is far more than that. Okay. So, that will allow some and I'm trying to come up with the right
words. Again, I'm not I'm not an optics engineer, but you will have some distortion because as just as you look at it, distorts. So what you really need to be able to do is match
surveyor's marks to surveyor's marks. Okay? You have to geographically locate this. This is not geographically located. This is drawn on. This is drawn onto a picture with no geoloc. Does that make sense? >> It does
>> because first off the area closest to us should be bigger in our picture than the area far away. Yet these this appears to be a perfect rectangle coming out toward us. Okay, that would not be the case
>> if you geographically registered this. My belief I think you need somebody who really knows what you're doing on that. >> The only thing I I would add is as a >> am I correct? I I was gonna say I didn't sound right to me but I was as a planner
structure exhibit you know I do it on behalf of boards I do on behalf of applicants and I would you know and Mr. all of you know if you agree with this but I I would recommend that the board take this you know more as like a visual exhibit potentially rather than anything involving percentages or numbers or
square feet or anything like that that's exactly what we propose >> we're not presenting this as some engineering study >> yes and I so I just want to I just want to >> what's your engineering judgement we do make exhibits like this scale things the best of our ability this does
have the reference to the site plan it does have the scale but I we just want to keep looking at this um I I think it would be appropriate to take this as a um as a visual exhibit rather than you know changing any engineering rather than engineering testimony which I don't think you're planning on providing. >> Okay.
>> So in the same vein qualitative assessment rather than quantitative assessment for the board's understanding >> but you see where I was coming >> what you were describ what he was describing is uh a certain isometric view. >> Yes. that is provided because of the
distance of the ground that's not provided from satellite imagery which is at a much greater extent and then can be recogn and the next thing that Mr. wife Gerber is going to talk about is not subject to any possible distortion. Uh doesn't
require any measurements and I think the easiest way to do it is I've already indicated we're going to be using site 306 from the steward site plan. Uh, and I do have them if you want some, but what we're going to be pointing out now
is toward the front, right towards South Street at the front lawn of the site. What it shows is one piece of imperous coverage, which is this slightly looping path. So, Mr. Weissber, could you
testify to that now, please? >> Well, graphically, you can see that it's no longer a twisted path. It's a series of walkways with with gravel fill all around. There's very little vegetation left in the front. It's all been paved over
that. None of that was shown as part of the in fact there's nothing left of the curve. In fact, there there various loops, straightaways. >> The curve is superimposed what the original intent was, but what's built is not even close to the original application. And that's not the result of any
distortion from from a camera, is it? >> You don't need to measure this. As you can graphically, you can see that there's a giant difference between what was proposed and what exists on the ground today. >> Okay. And do you have anything else that you want to point out in terms of a
discrepancy between the site plan and and the visual taken as >> Well, there are also new structures in the back of the site. Actually, they're well into the wetlands. Uh they're they look like sea boxes or some kind of containers that are being used for
storage on the site. None of that was indic indicated on the original site plan application either. Driveways, paved driveway going up to it. >> Excuse me. So, you're saying that the um looking on the left side of the uh of your diagram
uh those there's containers there and where that black uh vehicle is parked that's impervious coverage. >> That's a new driveway. Yes. It goes up to those storage containers. >> Okay. >> And is there anything else that you've noticed that is different from what the
board is being asked to consider? Uh there's a lot more lighting, that's for sure. Uh the original the original uh site application showed no lighting in the front of the building. Nothing on Pear Street. The isolux traces on the original plans that were submitted show
zero foot candles in the front of the building. Uh there have been flood lights placed on the front of the building shining north towards Prospect that burn sometimes till 3:30, 4:00 in the morning. Anything
else on this exhibit that you want? >> That's it. That's not on this exhibit. >> Okay. Well, well, you've pointed out three things. Is Is there anything else in or is that it? >> That's it. >> Okay. That's very Thank you. You may get cross-examined. Don't go away. >> Oh, okay. >> Board members, any questions of this
witness? >> I have one question. um on that proposed brick path where you outlined that and you're showing that as sort of you know I think you referred to it as grally road. Have you actually been outside and walked back there? Like what is is is that paved over? Are there pavers and
block on the ground there on that path or is >> it's crushed stone. >> It's all crushed stone. >> It's just like the driveways in the parking lot. >> You don't have to drive on the site. You can see it from South Street. >> So are you talking So you've used the
phrase paved a number of times. Are is that different than what you're talking about with the gravel different areas? You said paved driving. >> The material that's there is the same material that's in all the driveways and all of the parking areas that were um
described as impervious coverage in the original application. >> Okay. But it's not, you know, when you say like towards the top, it's not it's not asphalt or concrete or anything like that. >> PA blocks or anything? >> No. No. I mean, >> it's the same material as the driveways and the parking lot.
Do >> you know if those storage containers are permanent? They're temporary. >> They're sea boxes, so they're they're movable. Okay. But they're >> sitting there being used. >> Do you know how long they've been there? >> Uh there's one in the back that's been
there for a long time. There's a 40 foot. If you look be to the left of the black boxes, you'll see there's another 40ft sea box right behind it that's actually pushed back into the wetlands. It's a large rectangle. That's a 40 foot seab box.
>> So, the one that's >> the others are placed off the property. >> Excuse me. >> The one that's about 90% off the property. >> Yes. >> Um, and I would note that I believe that that's technically right of way.
>> It's in the It's in the Whitney right away. >> Yes. It's not another person's property. It's Whitney Avenue. uh unimproved right of way. Not >> still >> to the original bar track.
>> It hasn't been improved. It hasn't been accepted for any purpose of municipal access of the public. So, >> okay, >> it it may consolidate into the track the block behind it or it may split 50/50 or
into this track. Okay. Is that uh I think we had the wetlands expert say there's wetlands back there. Is that in the wetlands? >> Yes. >> I'm asking our engineer right there. >> That's my understanding. >> Oh, there's one there. >> That's >> Oh,
okay. Mr. Chair, I have a question. >> Talking about >> You're trying to figure >> the brick path. Are you suggesting that it's a material difference in that >> it was proposed as a brick path? There's
no brick path. The entire area has been filled with crushed stone. >> So, it's the material, not the design of the pathway. >> Well, the can I answer that as council? I don't know if that's a lay answer. I think it's a material difference. I think that when a board is presented a site plan and people are are here to
review either support or oppose the site plan, we're entitled to know what what we're actually opposing or supporting. And I think it's quite material that there's a very complicated almost Byzantine much denser collection of impervious coverage in the front of the
site than is shown to this board. I think it's material. >> Okay. Thank you. And then going to the parking area, the difference between the blue area and that you're saying is a material difference. >> It's subject to the comments that for all we know there may be some
distortion, but if if it's not dimminimous then then it is certainly material. >> Okay. Thank you. So with respect to the site plan issue and the differences right with respect
to for example this brick path that we're seeing in the photograph compared to uh the site plan which is uh different you know the applicant has submitted a site plan saying they're going to do a brick path in this
configuration. So if you know if this site plan were approved the way it exists, the applicant would be required to remove the the paths that are there now and install a brick path as shown on the
site plan. Well, Mr. Ol, I would say that that's technically technically correct. And I'm using the word technically because if it weren't for Mr. Weissberger pointing at this out to the board. The board wouldn't even know that there's a discrepancy. >> Well, but I think my point is I don't think it matters that there's a
discrepancy. What matters is if this gets approved and then um I don't know, Joe, whoever goes out to do the inspections later would look at the approved site plan and what was built. Right. >> Deviations would constitute not getting
a CO until they're rectified. >> Right. Right. So they have to, you know, this is what they submitted to us. They have to build what they submitted. And you know, we're not here to approve what's there now. We're here to approve
or not what they've submitted. >> Right. >> Of course. And the and the problem with us as opponents to this application is we're we're opposing something that's already in the ground. >> Understood. >> And and it's okay. I mean, many applicants wait until the board takes a vote,
>> right? and then and they actually do something. these people didn't bother to wait and so it's all here and so for instance when you say well they won't have a co are you going to say >> if you don't approve this they have to cease operations because they don't have a co I don't I just don't see that happening as a practical matter
>> you know that's not to this board right that's enforcement but if this board approved a particular site plan and it if it's built substantially different then they either have to come back to this board to amend that site plan or
they have to build it differently and without a co first I mean Joe correct me if I'm wrong here but for enforcement purposes they would get a notification right a notice of violation and if they didn't correct it then the municipality could shut it down
>> correct >> I mean that's the draconian way maybe but it's it's ultimately what could and potentially would happen >> yeah and I I think you know from for I think the biggest issue here it's less about you know that the board needs to, you know, wants to control the design of
how they want to lay out their flowers, you know, or their their their, you know, their displays there. The issue to me is that, and again, this would all be rectified if it's were to be approved, is that the way this is shown is planting display area, brick pathway,
and lawn. There's no lawn in this area. That's that's a substantial difference. And that would have to if they were to get approved with this site plan, they would have to, like Joe said, they wouldn't get a co unless they built what was on the site plan. >> They have to live with it. >> Yeah. >> Right.
>> Yeah. And so, you know, I I I think, you know, maybe I think there's, we all know there's been a lot of activity here and part of it may have been that it was sort of a continuing use and they were trying to clean up the site and maybe got a little too creative at certain points like with this. And whether or not it's temporary, you get a site plan
approved and that's what you have to build, >> right? And the same would be true with the trailers that you're pointing out to the far left of the site. Right. If if they're not otherwise permitted to be there then is you know and they're not on the site plan then they would have to be removed. >> Correct.
>> Right. >> And likewise for the uh additional impervious coverage if in fact it measures out that way. >> Yes. Yes. >> Absolutely. And so I think what we're discussing is the balance of an approval of contemplated and provided will have
to be constructed and then if there's deviations it constitutes an amended site plan approval prior to a CO. >> Yeah. I just want to be clear the board's not being asked to approve what's there necessarily, right? They're being asked to approve the site plan
that's submitted. And if it's different, which I think you've shown is different, right? Then those differences have to be changed to conform with the site plan. >> Yes. And that it's all part of the township's if it were to be approved. That's all part of the resolution
compliance process. It's part of the inspection process. Um you know, it's not the first time that someone's built some tried to build something that they weren't permitted to do or already did. So, this is something that I would say, you know, that the township is well equipped to handle as long as the
applicant is comfortable with what site plan they were to get approved if the board chose to approve it. >> Mr. Chairman, if I may for a moment. No. So, >> okay. Go ahead. >> From an efficiency standpoint of this process, we're talking about something that really is pragmatically not even an
issue right now as I see it. I understand that, but who challenged our site plan as opposed to the what if they don't build that they're supposed to build if this were approved. There's a lot of ifs. Um, you know, and I've heard nothing substantive about our site plan thus far except for the fact that the
drone seems to identify details that go beyond the parameters of the Steuart Surveying and Engineering site plan. Uh, their challenge is is ripe and it's high time to challenge our pending project. This what if is is something that gets reconciled You know, Larry, it's not a
what if. It's it's um they're they're challenging what's there, right? Which is not really relevant to the board because it's not what you're asking to build, right? You can certainly challenge what they're asking to build in the proposed site plan.
>> But what's there doesn't matter, >> right? And I apologize. The what if is down the road is what if this remains post approval, post bill, it won't, it can't, you know, it has to be reconciled. Are you saying are you saying then that uh in the event that it
isn't built as proposed that no CO is issued and they shut down? >> Absolutely. I mean the CO is a tricky thing because the CO ties to life because I'm not endorsing the CO if there's substantial deviations >> on their project or any project in this
municipality. >> Right. Right. >> Right. I think I think the point's been made >> and the board understands it, the applicant and the objector understand it and to the extent that the applicant wishes to
quantify those deviations and revise the site plan prior to vote, they may decide that before the end of the night or they may decide to proceed to a vote. That's their that's their decision. Right. >> Agree. Okay. >> 100% right. >> Any questions, board members? No.
Okay. Well, well, thank you for the discussion. What I said was we just wanted to let the board know what's on the ground. >> So, we were doing cross-examination of the witness. >> Oh, I thought >> um >> I thought we're done. >> Correct. Uh no, the board would ask questions. Mr. Khaled, do you have any questions? >> Oh, sorry. I don't
>> any members of the public have any questions. Seeing none, hearing none, close the public portion. Okay. Your next witness. >> Sure. Okay. I'm going to call Alexander McClean. a professional planner.
>> Okay. >> Would you raise your right hand, please? Do you solemnly swear that the testimony you will get to this board will be the truth, the whole truth, and nothing but the truth? >> I do. >> And your name for the record, please. >> Alexander McClean. >> And would you spell your last name, please?
>> Yeah, it's M C L E A N. >> Thank you. Okay, >> Mr. McLean. First, what I would like to do is qualify you before this board so that you can testify. So, uh, could you please first advise the board if you are a licensed
professional planner? >> Yes, I am a licensed professional planner. Um, yes, and I hold a masters in city regional planning from Marcos University. I'm certified by the American Institute of Certified Planners, obviously licensed by the state board of professional planners, and I've testified before boards uh
throughout the state. >> Is that licensed in New Jersey? >> Yes. And it's active in good standing. >> Thank you. And am I correct that you also represent boards in the state? >> Yes, I'm actually well I'm the uh the principal planner for the city of East Orange as well in Essex County.
>> And in order for you to testify here uh what actions have you taken? So I have uh reviewed the master plan u zoning ordinance um reviewed the site site plan uh the neighborhood and I've looked at
the history of the uh property um largely through you know aerial imagery um and u the applicants the applicant plan planners report as well and also just listening in on the uh last two uh hearings. By the way, have you have you
viewed the sessions for which you were not present? >> Uh, yes I have. >> And have you looked at the history of the site? >> I have. Yeah. >> And have you looked at Mr. Tobias's uh report that was submitted uh in support of the application? >> I have. Yeah.
>> Uh based on on on Mr. McClean's uh background and what he has done, I offer him to the board as a planning expert to address this application. He's qualified. >> Thank you. Thank you, Mr. Chair. All right.
First, let me ask you this question. The applicant describes itself as a garden center. >> Is a garden center a defined term under the Mars Township ordinances?
>> Uh, no, it is not. Yep. >> Uh is a form a defined term under the Mars Township Ordinances? >> Actually, yes, it uh it is. >> And does this facility qualify as a form?
>> I'm sorry, I have it here. Um >> as I read it here, um I read into the record, I guess. I'm just asking if this facility qualifies as a farm under the definitions in the town or >> uh no since there's no agricultural um activity taking place where you're
actually growing something on the property there is a definition in the county or what's called a retail establishment correct >> is is this is this facility a retail establishment? >> Yes, it is. >> And and why or how is it a retail
establishment? Uh yes, the uh the property sells um a number of goods. Well, in addition to um potted plants, it sells um home furnishings um and just um various other
um home goods. >> So So would you say that leaving aside the the term garden center, what the board is facing is a property being used as a retail establishment under the applicable ordinances? Uh, yes, that's what I'm saying.
>> Now, are you aware of any approval that was ever granted to this property >> allowing it to be used as a retail establishment?
>> No, I'm I'm unaware of any um authorization from any board. D1 variance being issued um to authorize um retail operation um on this property out you know outside
of what's permitted in the RA15 zoning district. >> Well well let's talk about that just so that the record is clear. What is permitted in the RA15 district? >> Sure. Um so um
the R15 zoning district um uh where permits where any permitted principal use in the any any principal permitted uses in the RA uh 30 um >> 13 >> the um the RA130 single family zoning
district are permitted and uh hospitals for human beings are only permitted. Um and u principal principal per permitted uses in the RA30 district include single family homes which is obviously cited in the uh RA15 zoning district. uh
agricultural uses and farms in accordance with section 95-343 um right to farm regulations which stipulate that quote where permitted commercial farms shall be a principal permitted use in agricultural overlay
zone AOZ um and does a list of permitted activities include and does then they list some 16 permitted agricultural uses >> is a garden center identified as a permitted agricultural use. >> It is not. No.
>> What else is allowed in the RA130 zone? >> Uh cluster of residential development groups um as provided by section under under chapter 57 the land use development um parks, playgrounds, firehouses, libraries and municipal buildings, country clubs, golf clubs,
and golf courses as provided in 95. >> And everything else is everything else is a permitted accessory use. Correct. >> Correct. Yep. >> All right. So do you as a planner um is is it part of your job as a planner to know who has
the burden of proof >> in establishing whether a use is a lawful non-conforming use? >> Absolutely. Yes. >> All right. And then before this board, who has the burden? Is it up to the applicant to show that the use on this site is a lawful non-conforming use or
is it up to us to show that it's not a lawful non-conforming site? >> So wait, I'm sorry before you even go there, like I don't know why this is relevant. They're here for a D1 use variance anyway, right? >> So it doesn't matter if something's pre-existing, nonconforming or not
because we have a plan before us that's saying this is the use and there's a list of three or four things all of which are D1's. So >> that's what they're here for. >> They're here for that. But I will tell you why it matters, Mr. Oler. Because it is our position that the garden center
is not a lawful use. >> Okay. >> So, >> but they're here for a D1 for a garden center. >> The I think this is this Mr. If I could just say this to me is for very very similar to what you just said to Mr. Weise Gerber, which is that we are not
here to review what they've done so far. >> Right. It's we, you know, it's it's they do not have approvals on this site to do all the things they are asking for. We all acknowledge that. >> That's why they are here asking for a D1 use variance to cover all of these
things. This is not a farm. No one has ever said it's a farm. You need 5 acres to be a farm among many other things. >> This is previously a retail store. >> They're proposing to they're proposing to to We've heard all the things that they're proposing to do here. That's
what this application is for. So, you know, part of the testimony, I think, from the neighbors has been what they are doing on the site right now. And I think that everyone is aware that they're not allowed to do that right now because they don't have approval for it. But that's not what this board is here to judge. >> Well,
may I disagree in the following sense? >> Sure. >> I mean, I've read the application. I've been to hearings. I've seen the ones that I've missed. And as far as I know, this is an application for approval for a coffee shop and a party site. uh and um maybe a gift shop.
>> There's nobody's asking here for an approval for for for for a garden center. Let's just presume. >> Well, you you just like your your your client you've already acknowledged that there's no def definition for a garden center. So, what they're applying for is
like as you stated, but it's not like classified as a garden center because you admitted that there's no such definition. >> Sure. But but but this is the first time that I'm hearing and I consider myself to be fairly attentive. >> The first time that I'm hearing that it's the entire site, everything from
front to back for which a D1 varian >> that's the nature of a D1 variance application. The entirety of the rider for the description of their proposed uses is on the table for consideration for moving forward in no consideration
of the prior use of the site. Yes, >> the site could have been an office building. The site could have been vacant. The entirety of the proposed use to move forward is here tonight. It's been here at all the applications and it's part of their record testimony,
their burden of proof and their planning proofs by Mr. Tobia. >> And I believe that's the understanding of the applicant. The only Joe the only thing I want to correct on that is that it's at one point there was some miscommunication with the applicant where the applicant was attempting to seek a D2 variance for portions of it.
Um I think you will all remember I chimed in many times to remind this board that we are not here for a D2 variant. >> We are here for an allencompassing D1 variant to permit as is often the case. You know kind of gets like esoteric when you really delve into the uses but that's cuz they run with the land. you
are here to for an application for a garden store event space with accessory coffee sales and all the other things that they've heard about today. That's what this application is for. >> Right. In fact, let me just refer back to the writer that was filed with the application which says, "Our concept
integrates a garden center, florist, gift decor store, coffee bar, and event venue." Right. designed to serve both retail and community experience functions. So, I mean, they're here for all those uses.
And if they're going on now, which they are, right? They're they're probably going on now without approval. And but that's why they're here. So, they're here for their site plan that they have submitted, right? And th those five
things that I just listed is part of what they're asking D1 variants for. >> All right. This actually, may I say, doesn't trouble me in the sense that as far as I know, >> no, not as far as I know. This board was
originally positioned as a D2 variance, an expansion of non-conforming use. I don't know if that changed. I know >> that is not true. If you look at our TCC reports, which are part of the public record, we specifically state that this is a common variant. the PCC did, but the applicant viewed it as a D2. >> Well, that's semantics. It's a D1.
>> It was noticed as a D1. >> Don't don't argue about whether it's a D2. >> As long as And as long as this board understands, because until today, I sure didn't understand it that the entire use as a garden center is up in the air >> and is not locked in and has not been
approved and is and and requires approval. That's fine. Right. >> I I'm I'm satisfied with that. If there was a previous approval for a garden center then and if they were expanding it then it would be a D2 but we don't have that situation. So it's here for
the first time as a garden center it's a D1. >> Yes. We we have talked about that when the prior use has been raised it has been in the context of as you often do with the use variance application that you show that this property has been used for commercial purposes in the past. It doesn't mean it's allowed to
continue to be. It's part of the test of particular suitability in my opinion. I don't want to do Mr. took his job for him. But that, you know, we have always been, you know, and I and I hope the board members all understand this because I think we've made this pretty clear, Rich and I have tried to make, you know, this is a D1 variance. There is no permitted underlying retail use on
the site. The old use was abandoned and what they're doing here is very different from that in a lot of ways. So, I apologize, you know, I I apologize if you misconstrued that, sir, but that that's always been this board's position. And I think that the applicant has also come, you know, we made them aware of that during the first it's been, you know, look, it's been nine
months. It's in a long time. Um but you know, we made them aware of that during the first hearing. You agree with that, Mr. Kelly? Right. >> I I I do I mean the existing facility um had been there for years and going back to TCC. This is going back about a year now. Um there were permits lawfully
pulled for the continued use of the facility that was there. And as the vision grew, uh we realized this was more than just a limited site plan. uh we realized that there was going to be components in there that we thought could have maybe been couched as a D2 as an expansion of that use, but uh your
TCC staff agreed they're wholly separate and prosecuted as a D1. So for the enhanced uses, right, the event space, the coffee shop, absolutely D1, D1 is all-encompassing now as well at this point. So as far as we're looking at is our site plan, if it were approved, it's
approved under the guise and merits of a D1 having been supported during this hearing process. But permits were lawfully pulled for the continuation of that facility. So that's why that is there. That that predates the code and there was that was never disputed. Certainly wasn't timely challenged going back a year by our objectorate either.
>> Right. But the prior use was substantially different than the proposed use. >> The prior the prior use was they grew flowers and sold >> and sold. Exactly. Right. And so they when permits were pulled the understanding was that they would be able to then legally be able to maintain and clean up the site because otherwise
they would be operating you know without anything. So that's where we got to where we are today. But those it's all encompassed into a D1 variance. >> Yep. Okay. >> Back to you. >> I just want to make sure going forward
and I mean it's an important point so forgive me. So the history of the site is irrelevant because the clock started fresh on their use whether or not it was permitted started fresh and they are seeking a D1 variance
on every aspect that they are doing on the site without whispering or suggesting that it is a continuation of a prior approved use. I would like to make sure that that's clear >> because otherwise the history matters.
That is what this application before this board is for. If the applicant chose to not have this application, if they wanted to go under the existing permits, you know, whatever permits they got, that would be a totally separate situation and that's not what's here tonight. So, no, in my opinion, it's not
relevant except in terms of testimony in support of a use variance. >> Then, before I continue with Mr. because I know this has been a quite a diversion. I say it's quite mysterious to me then that in the planning testimony provided by the applicant for the applicant there was no testimony about the positive or negative criteria
about a garden center. >> Not not well that's that's argument. So let's cut back to testimony. >> Of course it's >> what I'm here for. >> Yeah. But we're here to ask question. You get get testimony right now. Arguments for later. >> Yes.
like to get the student money but it don't look that way. >> Correct. >> Let me turn to a different subject >> which is you are aware that as part of the applications case they presented
what they called comparable properties from other locations. Correct. >> That is correct. Yes. And in your opinion as an expert planner, should the board be considering those allegedly comparable properties? >> U it's not in my opinion that they
should be considering them. Um yeah, there were some flaws with the uh referenced um sites that were included. Yeah. The um uh J&M Garden Center um event service, right? at J&M Garden
Center which had when when I was there had no event service um uh Lassera Gardens um which is located in uh uh was it Totoan New Jersey um it's located in
residential industrial zone I3 zone uh not not comparable to the RA15 zoning district >> well looking at all the properties was the board provided enough information to be able to say that they're in some sense they're comparable to this
particular location on 383 South Street in Mars Township. >> Yes, that was the implication. Yeah. Yeah. >> I'm sorry. What you're saying >> that the it was implied in the in the in the planners report that it's it should be compared to >> Right. I'm asking your opinion, not his.
>> Oh, okay. Yes. Um No, it should not be considered. Yeah. What what information would the board need property by property in order to say, "Yeah, I'm comparing an apple to an apple versus an apple to a a stone or an orange."
Well, I think it comes down to um the criteria for uh how to for granting a use variance um which is site suitability um looking at context and uh and the physical characteristics of a
property and the um those things need to be comparable to um the subject site. In your review, did you find any of the allegedly comparable sites to be close enough to this site as to be usefully
informing the board in any respect how it should vote on this application? >> I I did not know I >> Let's turn to something else. In the applicant's planner's testimony, he referred to various
uh goals under the municipal land use law >> and he he listed them alphabetically because that's how they're listed in the statute. >> Mhm. >> And have you yourself taken a look at these various goals that were listed? >> I have. Yes. >> I'll tell you what. Let's do this. in
the planning report itself. That is the the applicant planning report >> on I I'll put it in front of you. It's page 12. >> Yeah. >> Okay. So, could you >> because Mr. Tobay went through these
>> Mhm. >> quickly, but he went through them. >> Yeah. >> So, could you go through them? There are 1 2 3 four five six of them. Could you go through them one by one, give the letter better, explain what it is and explain your view of it in terms of this application?
>> Sure. Um so the first u purpose of the misable land use law that the uh applicant's planner uh referenced as part of the um special reasons um criteria for for granting a D1 use is the purpose A for encouraging municipal
action to guide the appropriate use and development of all lands in in the state uh in a manner which will promote public health, safety, morals and general welfare. Um and so on on this one, um as indicated throughout the previously submitted testimony here, um we had um
our civil engineer, Mr. Mark Chzvet, who testified on the increase in impervious surface on the proposed buildings and pavement area. Um he noted uh from the last time I was here and I was listening is the uh the net increase in the amount of impervious surface of approximately
uh 18,480 ft. Uh we had our uh wetland specialist uh Darren L. U Lre who indicated that um uh the transit area had been disturbed
by the current owners uh with soil landscape waste among um by soil landscape waste among other materials. Um some of the waste appeared to be uh placed in delineated wetland based on wetland boundary flags that were set in
those areas. Uh and part of the un uh unnamed tributary map on the uh NJ web had been filled with some of the uh riperian zone was cleared and regraded. Um and the site um they submitted to the Morris Township identified wetlands and
wetland transit areas on the property. Uh and most of that identified transit area has been covered with gravel. Um, you heard testimony from the our sound engineer, uh, Jack, uh, Zabura, who, uh,
noted the, uh, I guess the tunneling effect of the noise. Uh, since, you know, as we, uh, was noted in the proposed conditions of approval that the entertainment space, the outdoor entertainment space would be in the rear of the of the property. Uh, because
there was a condition, one of the first conditions was to prevent any kind of out outdoor entertainment. um use um activity in the front yard. Um so all that all that uh uh noise will be generated from the back would be
basically tunnneled down um uh the uh what was this here a prospect place. I'm sorry just blanked out. Um we also saw historic aerials
uh data and recordings from um Mr. Weiseber and Mr. Vieiraa. Um also noted here the property has already seen substantial redevelopment for non-aggricultural use that are not permitted in the R-15 zoning district. Uh this has resulted in an expansion of
improper purpose surface as noted by the civil engineer the opposition civil engineer um in in anticipation of the uh proposed plans for the vent space the cafe and as noted in the applicant's traffic
engineer um during his testimony on July 28th of last year an additional 82 parking spaces on top of the existing uh 10 spaces uh on on par street are being proposed. Um I just also want to note here that um
during the hearing on August 25th uh the board reviewed the proposed conditions here. I mentioned the u the restrictions on the uh outdoor activities. Uh so it's my assessment that all the identified issues associated with the current use
of the property has not um uh result would result in the general welfare and the promotion of the general welfare and u would exacerbate the formal construction of the proposed vent space and cafe. >> Okay. >> Yeah. May I just ask you to again the
final words of this section are you know that if if that it promotes the general welfare >> right >> um >> in terms of zoning law it does a does a commercial establishment let's be more specific >> it's a garden center it's going to be a
cafe it's going to be an event or party center shop I guess >> uh they're all commercial uses >> do they do are those commercial uses considered as a matter of law as promoting general welfare? >> No.
>> All right. Could Is there a Supreme New Jersey Supreme Court quote on exactly that subject? >> Uh, yes there is. >> Yeah. >> All right. Could you could you explain to the board where this where who's
being quoted here? >> So, this is um this is from the Burbridge case. which quotes from itself from the Medi ruling. Um so it's it's noted in the U brothers versus Mine Hill. Um this is in
1990 Supreme Court case. >> And for those people who aren't unlucky enough to be lawyers, planners, um what what what is the Mediche case? >> Yes, it's a it basically establishes the framework for granting use variance. Um,
>> and in the Medi case, what did the Supreme Court specifically say about the relationship between commercial uses and promoting general welfare? >> Could you could you read it to the board? >> Sure. Sure. Uh, so it's although certain commercial uses may inherently serve the
general welfare in a particular community, uh, the typical commercial use can be better described as a convenience to its patrons than than as an inherent benefit to the general welfare. for such use any benefit to the general welfare derives not from the use
itself but from the development of a site in a community that's particularly appropriate for that very enterprise. >> So under Medici >> is there any contribution to the general welfare for there to be a event center at this location?
>> Uh no it's not well it's not a inherently beneficial you know >> same question. Yeah, but I don't think the applicants claiming that any of their uses are inherently beneficial. >> No, they're not. We have not. They're not. But they're claiming that a under
the municipal land use law is satisfied with this application. >> Yeah, >> I would I would I would take I I I would disagree with that as a planner. It's that the med what the Medigi case did was set forward what special reasons are specifically for uses that are not
inherently beneficial. So I think what Mr. McLean just said is true. It's that this is not an inherently beneficial use. Most commercial uses are not and that's what this case said. But it does not just because something does not is not inherently beneficial does not mean that it does not an application cannot
promote the general welfare. So it's kind of all it's all kind of rolled into one. But it's it's yeah, it's different. They're not I don't think no one's claiming this is inherently beneficial. >> Okay. Well, I I I guess well um to that point I I for the reasons
that I just mentioned before in prior testimony um those are the reasons why I I don't believe that the uh um this particular request for this event space and um this other use the coffee shop are not um particularly the event space
too um are not really advancing uh the general welfare and promoting the general welfare >> or the health, safety, or moral. >> Right. Correct. >> All right. Uh the next section referred to by the applicant's planner was >> Oh, yes. U purpose C. Um
>> could you tell the board what that is? >> Uh this is uh to provide adequate light, air, uh and open space. Um here um so the the current development has taken place uh as I noted um and it's increased the um the amount of
imperfect surface as noted by um our engineer in his test Mr. Chevous testimony. Um so it's been an increase in the pavement area. Um so with respect to open space um that development has resulted in um some environmental
impacts. So um the next purpose purpose E uh is to promote the establishment of appropriate population densities and concentrations with that will contribute to the well-being of all of persons neighborhoods uh communities and uh regions and the preservation of the
environment. U so this this purpose is typically u cited for residential residential developments. Uh I find and I find it kind of strange that the at the in the context of the current proposal is the non-aggricultural commercial use um
since it's clear that the applicant is seeking to increase the number of patrons while uh well beyond what was planned for the uh previous nursery operation. Um >> would would you would is it your opinion that the proposed use would also be well
beyond uh what there would be if this were developed as a residential site. Um it's it would it's yes it is well beyond um
uh yeah the a residential project um considering the the uh intensity of the uh that's being proposed here with the various uses. >> Okay. >> What's what's what's the the next layout? Uh the the plans report also in
mentions purpose G to provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial, industrial uses and open space uh for both public and private uh according to their respective environmental requirements in
in order to meet the needs of all New Jersey citizens. Uh as noted my in earlier testimony uh current and proposed uses are uh very much inconsistent with the agricultural uses permitted in the RA15 zoning district
and the and the previous uh flower nursery. U furthermore uh as demonstrated u by all the previous witnesses I I I fail to see uh how the current and proposed uses would be appropriate for this particular uh property that is also surrounded by so
many sensitive uh noise receptors. >> Sorry, what do you mean by noise receptors? >> Uh the residential homes, the single family homes that are um to the to the north and uh east and south of the uh the applicant's property. >> Okay. And what's next?
>> Uh you see purpose I um providing a desirable visual environment through the creative development techniques and good civic design uh and arrangements. Um since the applicant's redevelopment has already resulted in an adverse impacts uh in the map transition area of the
surrounding wetlands and the noise impacts to surrounding properties uh from events from the event space event space use pending any formal approval. I do not agree that the work already performed um and is being proposed would be considered a good civic design and
arrangement for the property. Uh finally with uh is the plans report mentions purpose m for encouraging the coordination of various public and private procedures and activities shaping land development with the view of lessening the cost of such
development into a more efficient use of land. Uh the approval of the proposed project would result in an overintensification of land well beyond what was envisioned in the town's zoning ordinance for the RF15 zoning district. So those are
>> all right >> now let's turn to the request for the variances themselves and and the positive and negative criteria. Um first um I will ask you for a second time when
you prepared your own report testimony did you read Mr. Tobaya's report? >> I did. Yes. >> And did you listen to his testimony his planning testimony from the meeting in August? >> I did. Yes. So instead of me making argument, let me
ask you a question which is was a argument was a presentation made to the board as to why there should be a use variance for a garden center. >> I do not recall a uh pres such a presentation. >> So you have nothing to rebut in that
regard? >> Uh no. >> All right. >> The understanding is that it was there as um Mr. Cali noted that it was there. Um, there were permits that were pulled lawfully as he noted as he stated. Um,
but I mean, yes, I haven't seen any u I I didn't see any any previous variance being uh authorized for for that use. >> Well, well, the question not whether it was authorized, the question is whether the applicant's case >> presented Yeah. >> uh positive and negative criteria in
terms of the garden center itself. >> Right. No, I did not. Y. >> All right, let's turn to what they did present. >> Let's talk about the event space. >> Uh before we get there and and there's already been discussion about this Medi
case. Uh could you just briefly give an overview of what Medi requires an applicant to show in order to get a use variance? So as uh as I noted before um it requires um
obviously a positive negative um criteria analysis um where you're supposed to I'm sorry what do I have here? Um demonstrate site suitability. Um, and when you're talking about site suitability, you're you're
talking about um demonstrating context um and that the physical characteristics of the the property, the proposal um complement the property and also special reasons which you know speak to the uh
um the purposes of the municipal land use law. usually is, you know, relying on demonstrating that the proposal um promotes the general welfare uh of the uh community.
>> What is your analysis of the event space in terms of the negative criteria and the positive criteria? Let's break them down into two questions. First, could you address to the board your analysis of how the event space uh works in terms
of the negative criteria? >> Sure. So the negative criteria an applicant has to demonstrate that um well an a variance can be granted if if an applicant can demonstrate that um there'll be no detriment to the public
good um and no substantial impairment to the zoning plan or the zoning ordinance. Um, as I mentioned earlier, um, regarding the impacts to, uh, the environmental impacts to the wetlands,
um, the amount of impervious surface that the, uh, civil engineer had noted in his testimony, um, and what was, um, put submitted to the board, um, regarding noise, I I I can't see how that, uh, the proposed event space would
result in a, uh, promotion of the U, would how it couldn't result in an impact um to the public. Good. >> Is is your is your opinion um influenced by Mr. Vier's testimony and the video that he showed?
>> It is. And um and also by the sound engineer. Um and uh I guess can I I'll speak to the um impairment of the zone plan and zoning ordinance. >> Sure. Um, so, um, I've already gone over the uses for the, uh, the RA15 zoning
district, but, you know, I do I do want to submit to the record the, uh, the goals of the, um, uh, the goals of the master plan. Uh the first goal of the township's master plan calls for the preservation of residential character of a community in
which uh the re-examination report acknowledges that quote largely uh low density residential character of the community uh the preservation of that of the largely low density residential character of the community uh while also recognizing that
there is quote u would continue to be the infill development of residential uses as permitted under the current zoning. Um, also the fourth goal of the township's master plan calls for the maintenance of existing commercial areas and restrictions on new commercial
development which the 2017 master plan report um master 2017 re-examination report noted that uh at the time the report was prepared quote there would be no dramatic increase in the township population necessitating the expansion of commercial areas to serve uh new
growth. So, um, yeah, based on a 5-year, um, census analysis, the 2017 estimate, estimated population for Morris Township was 22,261 residents, which increased to an an
estimated count of 23, um, 577 residents. This is an increase of 5.6% or 1,246 residents. So, this it's my assessment that this would not trigger the need for um a
dramatic increase or the expansion of commercial areas in the in the township. Uh do you have anything else that you want to add in terms of your uh negative criteria analysis? >> I I do not. >> All right, let's turn then to the
positive criteria. Am I am I being simplistic to say that positive criteria you have to give particular reasons that the site should go where the applicant wants it to go? Is that is that a fair summary? >> Uh yes, that's correct. >> All right. Because it's not an
inherently beneficial use. We know that. >> Right. >> All right. So what is your analysis then of the particular suitability of this site for let's just stick with an event center. >> Mhm.
Uh well, you as I noted before um the the testimony from the previous witnesses regarding noise uh and a uh the impacts to the adjacent wetlands. um
when you have the the number of receptors looking down Prospect Place um and also the other um surrounding single family homes. I I don't believe that this property is particularly well suited. I know that the uh uh applicants planner had mentioned some several other
sites that were that he thought were comparable to the uh the subject property, the applicant's property. Um but this is a you know there are just an you know se you know a number of um single family residential homes that
would be impacted and that's the reason why uh they are here and submitting opposition testimony. >> If if we consider this because the site right now has no history. >> Yeah. >> If we consider it to be blank land an empty field. >> Mhm.
>> In your opinion is this a suitable place for an event center? If you're if you're saying that there's there weren't um >> there's nothing there's it's it's blank. It's it's it's an open field zone RA
residential. Is it suitable for an event center? I I would I would say no because um I think the zoning ordinance makes it pretty clear. They it wants um that uh the the governing body, the planning board um saw this area is for single
family homes and they even went so far as to say that you know we're talk about non-residential uh uses. they were it pointed to farmland and and also yeah that's that's the the character and the uh uh
the impression that was left and when you look at the master plan and the reexamination report it's it's um it's seeking to preserve uh that character that low density character let me ask the same question for a garden center again given that as far as we're concerned there's nothing on this
property and it has no history is this property particularly suitable for a garden center. >> Uh it's not uh something that's identified in the uh in the in the ordinance. Um I'm sure you can make the argument and I'm sure and that they have
made the argument that this is uh comparable to um the previous use which is the u nursery. So it's not that far off. Um but um it's going to um it's a
diff it's a very different business model in terms of pro you know it's a retail operation it's not focusing on >> I'm asking a different question >> as far as this board is concerned this is a total D1 application >> there's nothing on the ground it's a brand new D1 with all these different
uses >> and what I'm saying is if there's nothing on the ground >> is a garden center particularly suitable or is this local particularly suited for a garden center? >> Uh I would say no. >> Okay. Now let me ask this.
>> Assuming that somehow we have a garden center >> and now we need a coffee shop to support it. >> Is this particular site particularly suitable for a coffee shop? >> I mean it's just it's it's it's making a further argument that it's no it's it's
less suitable um for such an operation. Now the applicant's planning report says that the site is particularly suitable because no physical expansion of any building is proposed. >> Right?
>> So in other words, here these buildings and they'll do something in the building, >> but they don't have to build out the building. Mhm. >> Does that have any impact on your analysis of whether the positive criteria for this site are satisfied? >> Uh no, because um that it's I think it
made they made it pretty clear in their testimony that the events um usage would would not be restricted to just the second floor of that uh existing building would be outside in the rear yard. So, um, there was be some noise
generated and that would be impacting surrounding properties. >> All right, let me note something else that the applicant's planner says. He says, I'm better off closing it. You have my report here.
On page 10, paragraph 5. >> Could Could you I'll read it. >> Yeah. >> The proposed event space will cover 2,173 square ft of floor area. The coffee shop will cover 1,720
ft of space. both pale in comparison to the overall size of the garden center which covers a total of 18,212 ft. Now before I go to what I was going to ask about that, let me say that given that the
garden center itself needs a D1 variance, >> what they're really saying here is that the board is being asked to approve 18,212 ft of >> non-conforming uses. Correct. >> Correct. Right. >> Right. Now
going back to the applicant window which presumed the garden center I maintain does the fact that the event space and at the coffee shop together are roughly 25% in size compared to the
garden center 25%. Does that have any impact on whether the coffee shop and and event space are are particularly suited for this lot? >> Uh no. Um
at the end of the day, it's um you know, we really don't know um you know um the how how important the um each of these operations are in terms of their overall ability to to function. Um, so it could
be, you know, let me ask you this. Let's say that the board approves this application >> in hope and so there is now an event space and the garden center and a coffee shop and
a gift shop >> and all the site improvements. They all those then become lawful non-conforming uses. Correct. Is that right? Is that how it works? >> Correct. Yeah. >> All right. >> So, there is I would I would disagree with that. What did you just >> I said, don't they then become all
lawful non-conforming uses? >> They become You said if the application is approved, >> no, they become uses that were approved by Dvarian. They are no longer non-conforming. They approved by Dvarian. >> I think that's lawful. >> Let's make it easier. They are then lawful uses.
>> Yes. >> And what that would mean is that am I correct, Mr. claim that in the future, either this applicant or any other potential owner of the site could come back before this board and say, "I know that the applicant agreed the certain conditions in 2026,
>> but we don't think they're good. We can't make it with 48 people. We need 100. We can't make it going only till 10:00. We have to go to Yeah. You know, we we're not here to uh evaluate a applicant's business plan. uh
>> or it's really just all conjecture, right? So, if there was an approved plan and if at some point in the future they wanted to change that plan, yes, they have to come back here, but it's not relevant to like the plan that's
currently pending before the board. We all know if they're going to change it, they have to come back. >> And Mr. Chairman, may I add before they continue? We were told by Mr. Rosenbach, their plan needed 30 minutes. We're going on an nearly an hour now. We've got 25 minutes of recall testimony in
total between three to four minutes. >> Well, we we're gonna >> we can move it along. That'd be great. But let's let's move it along. >> We're moving along. >> Okay. >> Well, now we got Okay. >> I I didn't realize I didn't realize that
the rule limited me to a certain amount of time. >> Okay. Now, come on. Let's just move on. Let's not argue about how much time we're taking because we're taking more time. >> Mr. Chair, I'd like to address something you said, which is that the chairman did not put their financial condition in play. That's exactly what they did in
this application and is what I want to respond to next, and it's what I have left, >> if I may. >> Well, even if they put their financial condition in play for that, we don't evaluate business plans. We evaluate uses. >> Correct. >> So again, I would say so,
>> so let's just move on and we can talk about that in argument at the conclusion, not at this point. Thank you. >> That's what closing statements are for. >> Well, I have a question for my planner. >> Um, on page
11, paragraph 4, right, of the applicant's planner report. It says, and I will read it short, not keeping up with the home depots of
the marketplace can have disastrous results as major garden center operators such as Cedar Grove Garden Center and the Fairfield Garden Center have gone out of business in recent years. And
is that not part of the applicant's assertion to the board that these additional uses, pardon me, the coffee shop and the event center are being
requested in order to better secure the financial success of the garden center? >> I believe so. Yeah. >> Okay. Again, presuming that the garden center is lawfully there in the first place, but these other uses, >> again, they're they're they're to they're to support the garden center,
right? >> All right. Is it the function of this board to grant variances in order to support somebody's commercial operations? >> No, it's not. >> And that was never sought, Mr. Chairman. >> All right. And and if I recall the testimony along those lines was that
garden centers are evolving into you know say multi-use type of centers. I think that was the purpose >> exact descriptive word evolving. >> Yeah. Exactly right. >> Yes. In fact we were told that the Glendale Forest Center was had been a
mom and pop operation and time had passed it by. That's what we were told. meaning that this board should relax zoning because a business model has changed. >> Well, that's that's the argument. We're not arguing. We're asking questions now. >> Yeah. So, and I guess just to on that
point, um this notion of an evolving use, it can certainly lead to a slippery slope. You're like, okay, well, you know, this particular type of commercial use is evolving, so we have to just be make some allowances. Um I you know you
you're basically make you know I I think it's a kind of really a dangerous argument here because you could you're you're inviting um the possibility of a potentially a whole range of other I mean it's not a natural pairing of an event center with a garden center. It's not it's it's you know I don't go to
Home Depot thinking that oh maybe they'll you know they sell they sell potted plants so maybe they can host a party. I so I it's a natural >> assumption. >> Um Mr. McClean, I know you had a few exhibits and I never called on you to
show any. Do you do you think you have to show any to the board now or or have you covered what you wanted to cover? >> I think that the the board has you know seen has had enough testimony and I have asked you a bunch of questions. Is there any other opinion that you have reached that somehow I have not yet asked you?
Uh, no. I think that covers everything >> and I have no further questions. >> Thank you. Do you have any other witnesses? >> No. >> Okay. >> Do you have any cross for this? >> Well, we the board members have any questions? >> Okay. Okay. >> Board members have any questions? >> No.
>> Um, I have a question. >> Sure. Go ahead. your commentary about the impervious which you referenced many times. Was that based on prior meetings or the report that we've seen from the engineer today?
>> Have you looked at that? >> Mike, that was based off of the uh testimony from Mr. Chzvet from March 5th. >> Have you looked at the report that's been issued that we've seen today? I think it was the work was done two days ago. >> I have not. No.
>> Okay. Thank you. Um, now this was an existing garden garden garden garden center to the extent that it grew flowers, had green houses and sold the flowers. Correct. >> Yeah. Yeah. It was a nursery. Yeah.
>> So, one of the criteria uh G that uh Mr. Toby had brought up is that uh it's not expanding the commercial areas of the township, but the ex this is an existing commercial area. >> Correct.
>> Well, it's it's not it's a it was a it's it's a single family residential area and it's and it's >> No, no, no. I'm saying the the property itself Yeah. >> Not the zoning. The property itself is an existing commercial area. >> Uh yes, it was a Yeah. >> Okay. and has the green houses already
there. >> Uh but they're not being used to grow flowers. It's just >> but it had the aura of a garden center. Correct. >> Uh yes. >> Okay. So would um this would be an appropriate location for a garden center
given the existing past use as a commercial uh entity. >> Yes, you can certainly make that argument that it's >> okay. I don't have any further questions. >> No, nothing for the witness. Mr. Chairman, we'll have a very brief recall of Mr. Tobia short.
>> Yes. >> Uh, any members of the public have any questions of this witness? >> Yeah. >> If you do, uh, turn up to the microphone and ask a question. >> You can you guys can share >> right there.
>> I just have um I have a one question. >> Okay. You got to give your name. >> I'm sorry. And address. >> Beth Fistle, 5 Catalpa Road, Mars Township. >> Would you spell your last name, please? >> F is in Frank. I double S is in Sam. E L. I made name was easier. >> Okay. >> Okay.
>> Um, question. You you uh referenced noise receptors. >> Yeah. >> How many noise receptors are opposed to this? >> I I don't know. I'm just citing the number of residential homes in the area. So you had I think it's about six
surrounding homes, >> right? >> You'd said that it was going to So I figured that you knew how many >> I I live across the street. >> No, no, no, >> no, no, no. >> You can't just shout out audience. >> Questions later. >> That's my question. >> But not from there.
>> Thank you. >> Anybody else with questions? >> Yeah, I have questions. >> Come on up, identify yourself and ask your question. Um, so my major thing, my name is Jenna
Padavano. P A D A V A N O. I live at 378 South Street. Um, my major question is a lot of the this planning and all of the the noise and everything that was done, it seems from what I've looked at is from 2025. Since then, we've now had extended hours on the pickle ball. So,
there's that noise. And then also corporate um where from Morristown Medical Center now has shuttles running all night. >> That's a fair question. So that's what I'm I'm when when the proposed plan was made, was all of that taken into consideration the things that have changed most recently?
>> This is a question for the man who just testified. >> That's who you can ask right now. >> But isn't isn't this I mean I'm just confused. >> You your questions are supposed to be directed to this witness. >> Oh, it's not Well, it's directed towards the whole plan. >> Well, then we'll come have that later.
>> Okay. I'll come back. >> All right. Thank you. Five minute break. >> Any other questions of this witness concerning his testimony? >> All right. Seeing none, hearing none, close the public portion. We're going to take five minutes and then you can come back on it. Mr. Chairman,
>> um, do you have any other witnesses? >> No, we said no. >> Okay. Five minute recess. >> Like to call back to order the special meeting of the Mars Township Board of Adjustment for April 15, 2026.
Uh, can we have a roll call, please? >> Mr. Goldberg, >> here. >> Mr. Krakenberg, >> here. >> Mr. Williams, >> here. >> Mr. Schustster >> here. >> Mr. Benois >> here. >> Mr. Kramer >> here. >> Mr. Woodford >> here. Mr. Roller >> and Mr. Eer >> still here.
>> Mr. Witch >> here. >> And Miss Keller >> here. >> And our alternates. >> And our alternates. Miss Simmons >> here. >> And Mr. Evangel. Okay, your show. >> Thank you, Mr. Chairman. We're going to go as quick as we reasonably can. Mr.
Slow down, you please tell me to do so. Our batting order intends to be a very limited recall of Mr. Tobia, who has already sworn and qualified as >> Sorry, Mr. Kelly to speak up. >> Sure. Um, very limited recall of Mr. Toby, then go to the balance of three witnesses. I think in total we need
under 25 minutes of direct to conclude our case and chief, Mr. chairman. That's our intent and goal is to do so this evening. Uh with that, I will turn over Mr. Tobia who who was sworn and qualified. Mr. I don't know if we need to uh >> I will swear you again. Would you raise your right hand? You you solemnly swear that the testimony you will give to this
board be the truth, the whole truth and nothing but the truth. >> Yes, I do. >> Thank you. And your again name for the record, please. >> Michael Tobia. Tobia. Uh T O B I A the applicants planning consultant. Um and uh still licensed, still under oath.
Nice to see everyone again. Um, so let me let me do this quickly because I did testify last about I think August 5th of last year. Okay, we explained this is indeed a D1 variance. Um, we um acknowledged it could cover the whole
site. When I testified um nearly a year ago, I explained the one key driving force of the whole thing is that the garden center already exists. All the buildings, the parking lot, everything had to be vastly overhauled and improved. But the driving force behind
this was the idea that we had legally existing buildings on the property that went back decades in a commercial and even industrial land use. Uh we explained that retail sales did in fact take place on the property for decades
uh before it went out of business. I was one of the customers I know. Okay. Um we explained the event space is one way of reimagining the garden center. The whole reason I brought up uh Home Depot, Costco, Lowe's, and all that is that the
garden center business has changed dramatically. If you're going to be a garden center trying to sell uh rose bushes and aelia plants and so on and keep up with the big boxes, you are going out of business these days. It's changed dramatically from where it was a
bunch of years ago. Uh so the whole idea of diversification was to stabilize the use and recognize that things change. That's what the zoning board of adjustment is all about. Recognizing change circumstances that could not be
anticipated by your master plan. This is one of those change circumstances. Even Glendale went out of business. Okay. Uh the place in Cedar Grove went out of business. Fairfield went out of business. Koviella's over in Madison all folded. These are generally smaller type
operations when compared to the big boxes. We explained the event space had a lot of activities that were really linked to a garden center and I'm going to go through a couple of them with you such as workshops for floral design and
gardening, wreath making, um weddings, decor workshops, garden club meetings are just a few of them. Okay. But the idea was try and bring uh other interests into this type of um arena where we know people are going to buy
plants by flower material, buy patio furniture and so on. So the link there does meet the particular suitability test. Okay. We explained um that this site was a blight on the neighborhood. It should be acknowledged that
residential land uses surround the site. Should also be acknowledged that commercial land uses populate South Street as well. Southgate Parkway. You all did the doggy daycare center with me about a year ago and that's now open. You have a medical office building on
the street. You have schoolhouse plaza. It's a mixeduse street. Nevertheless, we're not supposed to have blighted properties on the street. Glendale was never abandoned. It was vacant. Went out of business. But that doesn't mean we gave up everything that
was on the site before. This applicant does promote the public good. They they have put as a family $5 million into the renovation, rehabilitation, and overall improvement on the site. I hope everyone's been out to the property now. It's about as good looking as a garden
center can get these days. If there have been minor problems with site plan conformance and what's out in the field now, we will fix those to get them consistent with the site plan that will be approved. Um, I want to talk to you about my travels to Pennsylvania, the
Jersey Shore, Toada, um, and other locations. Uh, J&M Garden Center. The whole point of that testimony wasn't that those uses should influence the board as to size and style of uh the um South Street Gardens. It was to point
out that other garden centers in the region are making adjustments also to diversify, innovate, and do a little bit more than just sell plant material. All of the ones I mentioned were doing things like musical events, flower
shops, uh Christmas shops, even lunch and dinner facilities just to diversify. That's why they were all brought up. Okay. Um when I mentioned the mod modest expansion, it's true that um the event space on a mathematical basis is about
14.9% of the overall proposed buildup. and the garden center and the the coffee shop I think I had at 9%. Those are just the physical comparisons of those two uses to the overall space which goes about
18,000 ft. Recall though the event space is only going to be open four to seven times a week. So it's not like it's going to be open all the hours that the gift shop is open or all the hours that the garden center is open. Recall also, please, the coffee shop is a place that
sells coffee, but it's also a building um that will be retail sales, which is part of the garden center use. So, you can go in there and get a cup of tea. You can also pick up a plant and go over to the cash register. So, there's a linkage there between the so-called
coffee shop and um and the overall garden center. It seems to me these days, everybody's selling coffee. you know, even my hairdresser has coffee and my bank is selling coffee or giving away coffee. I view that as an extremely minor ancillary part of the case. Um
so, um on the goals that we mentioned with the municipal land use law, um talking about sufficient space in appropriate locations makes sense here. The garden center has been around for years. every homeowner in the area
postdates whatever Glendale was because it went back so long 100 years I think by one estimate from one of the witnesses. Um it is an appropriate use of the site because it's simply not going away. If it did go away, we know what was
proposed for it as a hypothetically vacant piece of parcel. 20 to 40 town houses or apartments, condos, things like that. uh they probably would have been included in your most recently adopted housing element. Uh I think this
is the better uh zoning alternative for the site to recognize that it's been around so long. 5 million bucks going to the property and it it looks great. Now, incidentally, the applicant has also, as we talk about negative criteria, planted
150 perimeter plantings, uh mostly evergreen to enhance privacy around the whole property. um and to try and be a good neighbor. Impervious coverage went down on our site plan calculations. It's actually been reduced from what was out there before. We're going to have our
engineer up in a minute to to talk more about that. Um another thing I pointed out is the um event space and the coffee shop take place in existing buildings. So, we have a really unusual use
variance case here where we're not talking about adding new buildings. It's a very, very rare application in the D1 field. The event space is on the second floor of the gift shop under the existing gable and the coffee shop is um
in an old broken down building that used to be a boiler room for the whole facility. Uh and it just sits there vacant right now. Um so, we're improving those spots. We're um not adding physical massing to the site in terms of buildings. We explained to you a long
while ago. Uh we meet parking. We're going to go over some conditions with you all later, but we we meet the parking requirement in the zone. We've arranged for all traffic to come out to Pear Street, not around the corner to Whitney. If you recall, these are some ways we were trying to address the uh negative
criteria. um footprint we believe has not changed or will not change. Maybe we have to make some minor corrections. We'll see. Um and in the end, when you look at this, your test under law is is what's being proposed a substantial
detriment to the public good. And my testimony was and is this has only been a substantial improvement to the area. We're going to give you some ways to protect our concerned neighbors through conditions. going to do that a little bit later on. Um, but the conclusion is
this is not a substantial detriment. Minor detriments don't count. Okay? The law says it's got to be substantial. And the law also says you must have a substantial impairment to your zone plan. Except this use has been around before
we ever had zoning or master plans. So, it predates all that. And this is why we have a board of adjustment. Got to fix things up. You got to make adjustments. and that's what we think we're doing here. Um, so that's it in five minutes, Mr. Chairman. I don't usually limit my
testimony to five minutes, but I did my best. If you have any questions, I'll answer them. >> Board members, any questions? >> Seeing none, hear none. >> Well, Mr. Chair, one second, Mr. Tobia, what's your remedy again for the noise? Noise was a
>> It's a legit question, Mr. Williams. Just hold on a second. Our next witness or two witnesses from now? >> Three witnesses from now? Three witnesses. >> Going to be quick. Three witnesses. Acoustic engineer will be testifying. >> Okay. >> We we will have that done for you. >> Okay. Any other questions from board members,
>> Mr. Rosenbush? >> Mr. First, I want to clarify a factual matter if I may. >> Toia, >> pardon me, >> Tobia. It sounds so nice. >> We We haven't worked together, so so forgive me. >> All right, Mr. Tobia. Go ahead,
>> Rosenbuck. Uh um uh last year because this application has been going on for a while. Uh you testified that the family has put $4 million into the property and today you testified it's been5 million. Have they
put another million dollars in since? >> Yeah, they continue to make improvements to the property. >> All right. Now, aside from you giving the board that number, um have you seen any accounting of those figures? >> No, I don't check. What's the relevance of how much money they put into it?
>> Well, the applicant keeps raising it. I don't. >> Well, let's then move on. >> Okay. Secondly, how many proposed distinct uses are there on this property based on this application?
>> Okay, good question. We have always viewed it as one umbrella use to be operated entirely by the Berlin family with these little admittedly separate departments like the the home shop and so on. But it's one use, one sign, one use, one management.
>> I see. So if the Bruins under an umbrella management had a shoe store, a delicateesscent, a garden center, an event center, a video arcade, those would all be one use to
you. >> So that's a the answer is that's a fact sensitive question. We don't know how they would be divided, if there'd be separate units in the building and so on. All I know is what we're proposing here as a condition of approval is that
everything will be run by this group, the Brun family behind me. Um, no third party rentals, no sublets. Everything gets run by the family. >> So, let me ask you, I mean, you're here as a professional planner. If I on a
site have a Burger King, I'm the owner and I end up with a Dairy Queen franchise and I put my Dairy Queen franchise right next to the Burger King that doesn't need a use variance because it's one use. >> Yeah, that's hypothetical. Let's let's
take >> it's this is what's happening here. There these distinct uses that this planner is saying is one use. I get the question. Oh, no. He's he's saying that he's going they're going in for an application for approval for all of these different var variations of these use.
>> What you're saying is you've got one use and now you're putting in a whole new one in an adjacent location. Yes, you're going to have to come in and get an approval for that. >> I'm saying that today they're coming in for more than one use. There's there's no such thing as a garden center which
is a some entity that happens to have an event space and a coffee shop and so on. An event space is a separate use and I would like him to concede that. >> Well, he's not. >> Let me I'm not going to concede it. I listen Burger King and and what' you say
Dairy Queen um >> um those are separate entities you know separate companies and all that. whole point of this was linkage between these proposed uses um such as the event space and the overall garden space like flower
arrangement as one possible workshop that could take place upstairs um is inherently linked to what else is going on on the site and as I said the coffee shop in the smaller building um is going to be retail they're going to have
plants all over that space anyway so it's merged again with the retail sound. I don't view this as separate uses. We never have. And that's why we've been careful to explain. We're not having a separate company run the event space or
the coffee shop. It's just the family. >> Yeah. And I I I would agree, you know, as the board's planner, I think that that's that's the position that we've been taking and that's something that as a D1 variance, this provides this board a specific opportunity for that because of the fact that the applicant has come
here with a specific use. They have a site plan that shows how much square footage is devoted to each use. They've given operation statements. They've potentially given conditions, and that's what the board is approving. It doesn't mean that you know that that that
someone could just come in like it this is one umbrella use and that it and but it is it is that use is everything that's been testified to and everything that is on the site plan. Um and I think that that's something that's fairly common with Dvarian is because of the fact that you do tend to get you know
sometimes more obscure uses that are not specifically identified in the zoning. So this is not the first time this has come up. Um, and I think that, you know, this board is aware of that distinction. And again, that's what the resolution, that's what the site plans are for. If this were to be approved, everything is recorded and everything will be held to
what was stated. >> Thank you. >> Just if you know, and if you don't know, you can just tell me. Do you know if within the ownership structure of this site there are different affiliated corporations or entities that are
running these different operations? >> Corporate ownership disclosure statement was filed as part of the >> Yeah, they're they're all owned by the same entity because at least that's what the the application says. >> That's not my question. My question is whether there are different corporate struct whether there are different
corporate entities within a corporate structure regardless of who that them all being owned by the same person >> project planner it's irrelevant it's not part of what is recall testimony involved and again the corporate ownership disclosure required by title 40 is on file with the board including all names and members broken down to 10%
and when you have a secondary entity that too is broken down by 10% that was filed at a year >> I swear I was just told by Mr. Tobia that there's just one entity that's going to own all these and I'm just questioning that. I don't see why I can't. >> Again, I don't see the relevance. Yeah, I I think you can't because of the clock
at this point. I think this is just an endeavor to kick tires a little bit. >> Okay. It really it's really if there's two different entities, the restrictions are going to be the same. If we approve this, the restrict any restrictions are going to be the same whether it's one entity or another entity or whether they
create a new entity and transfer it. >> Yeah. and and and I think most important use variances run with the land. Use variances don't run with an entity, >> right? >> Um they any entity in the future if it was shared if they were to split the ownership everything would still have to
be done in accordance with the approval. It runs with the land not with the entity or the owner. >> Okay. Last topic. You've mentioned several times that even before zoning this was being used for some
I'll say commercial purpose. To your knowledge was it simply a farm? Do you know that it was anything more? >> I don't go back that farm. You're lying on other testimony that it was a a greenhouse that shop up in front um and that went on for decades.
>> Okay. And when you say relying on other testimony, whose testimony was that? that was that >> and so going back this the issue that I was raising about this being
an all-encompassing D1 you you you you are you saying that for D1 analysis purposes that although it's not a continuation of the use sort of get credit for the use
anyway because it was already there. I'm saying the practical reality is that it is there and yeah that's a reason we meet the particular suitability test is the site particularly suited to the use right well a use just like this was
there for decades so of course that helps meet that that criteria >> okay but in that case don't we get back to the question I raised earlier which is your application has absolutely no proof that the prior use was a lawful use.
>> I don't think we we ever covered that other than just how long it had been on the property. >> I know you didn't cover it. You've assumed it >> because of how long it had been on the property. >> I think I think from a planning perspective, I the the particular
suitability test refers to the fact that this was a commercial use. He's not bearing any judgment on whether it was a legal pre-existing non-conforming use. And I, you know, I don't think the board needs to consider that. And I I I also but uh Mr. Toby, I would just take umbrage with the fact that you said that
a use that was exactly like this one. It was not exactly like this one. It was it had a retail component and sold some similar things, but you would not be here if it was exactly like this one. You're here for a D1 variance. >> Good. I have nothing further. >> Okay.
>> Board professionals, any questions? >> Any members of the public with questions of Mr. Tobia? I I just have Can I ask a question? >> Sure, Toby. Um Mr. Toby, we covered a number of the uses tonight. We covered the garden center, the retail shop, the event space, the coffee house. I know
throughout the application there's been um alluded to food trucks, right? Um there's a food truck currently on the site right now. And is is that being operated and managed by the current owners or is that a third party or how does the food truck sort of play into this?
>> Food truck, we were in town hall. we meaning the applicant um got a permit for what's called a mobile food establishment. I think that's what it is. So, we got the permit. It's on the property. There's a whole back and forth with the health officer. Um and that I I
don't think Matt Breuan is is in the food truck operating the food truck. I'm pretty sure there's a separate person in there. Food truck's a separate business, but it's ancillary and it's permitted anywhere in town. You can pull that permit. >> So, excuse me. But on that point, Joe,
can you verify that a permit was issued for that? >> Yes, you can verify there's health inspections that were passed and the uh operation is permitted. >> Okay. >> I think it there's a consideration here for
as Mr. Toby said that's a permit can that can be obtained for various locations. Uh but I think it should be understood as part of the overall use of the property and it's
uh I'd say accessory or ancillary in nature to all of what's been proposed under D1 >> but we can but we still are free to say yes you can have food trucks or no you cannot have food trucks >> I think the distinction here would be um
the other uses florist home decor coffee shop garden center event space have been clearly defined they've also been identified with timing restrictions for each use and those uses are all under the management care of the
owner and operator of the site, >> right? >> The food truck, if it's a third party, I think it's worth understanding the expectations of the timing and the use, how many third parties may be on site on any given point.
>> Well, we can also say no third parties >> or or it could be Right. >> Right. I just want to know >> and that's and I Yes, I agree. And and that's been discussed in other hearings on other matters with what we call points of sale, right? Common points of sale of
say two franchise franchises inside of the same space >> under the same common ownership and management and one point of sale, one books of the company >> uh or if this is a third party operating on the site. >> Okay. >> Yeah, Mr. Yeah, Chairman Woodford, I I
mean I agree with what Joe said. You know, there is there is separate township rules about, you know, where food trucks can go, whether it meets the health department. But this is a D1 variance and the board has the ability to issue conditions above and beyond. And if you don't think any food trucks are appropriate on this site, the board can say that. You can say food trucks
can only be there for a certain amount of time. You any anything else. Um, and also, you know, I think that that would also be part, you know, that that's that that has been discussed that food truck. I remember that came up at a first hearing because I I have to admit that I had some concerns with that because it sounded like a separate, you know, it
sounded like kind of like above and beyond. I know especially given the scope and scale of the events that the applicant is trying to have here and we'll get to that when we if we get to the point of discussing conditions, but this board does have the ability to to regulate that. >> Okay.
The mobile retail food establishment is defined under our board of health legislation in our code. >> Right. Um, it's a any movable restaurant, truck, van, trailer, cart, bicycle or other movable unit, including
h hand carried portable containers in or on which food or beverage is transported, stored or prepared for retail sale or given away at temporary locations. Uh there's inspections required prior to licensing
uh and sources of the products, potential hazards, violations and penalties covered in that section of the code. But as was just discussed, I think the contemplation with the use variance with whether it is permitted and if there's any restrictions on it is
appropriate in the D1 use conversation. >> Okay. Thank you. I guess I would have a follow-up question on that, which is was the um installation and the starting the use of the food truck a function of because this how long this was taking because
the coffee shop isn't up and running. Are they mutually exclusive or that would maybe go away if the coffee shop were open or is there any linkage to your point? Yeah, >> save that question please, Mr. Goldberg for Mr. Bwin who's coming up next. >> All right, very good. Thank you. Any
other questions, board members? professionals. Seeing none, hearing none. Next witness. >> Thank you, sir. Our next witness is also a recall witness, Matt Breuan, was a member of the applicant and ownership LLC. Matt previously testified as a lay witness and was sworn. We'll swear that
in again answer that question, Mr. Goldberg, as well as give sort of a a summary of what to the board after this uh this long road to get to this point this evening. >> Thank you. Would you raise your right hand, please? Do you solemnly swear that the testimony you will give to this board will be the truth, the whole
truth, and nothing but the truth? >> Yes, I do. >> Thank you. And your name for the record? >> My name is Matthew Brewan. Last name, B R U I N. And you could testify. You identified your affiliation with the entity. Um your family uh are members of the Apple entity that control and own
this property. Is that right? >> Yes, that is correct. And I know you are hopeful to get back up here excited to hopefully get up and running as desired as the site plan uh shows and denotes on those plans and the uses that are proposed. Uh and I know you wanted to get back in front of the
board and uh um say thank you and give a few parting words to them and also we have a question so it's good timing for you Mr. Goldberg as well. >> Absolutely. Um members of the board first my family and I would like to thank you for your time and for your service to the community sitting here today. I'd like to begin by addressing
something that has been a little difficult to sit through during these past hearings. Um, there's been repeated mischaracterizations of my family and our business. I want to take a moment to clarify who we are and what we stand for. We're a close-knit, family-run business that takes great pride in our
work, our property, and most importantly, our community. At the core of everything we do is a simple principle. People come first. We treat every customer, neighbor, and visitor with respect, care, and genuine intention. We believe relationships matter more than transactions and we are
consistently going above and beyond to ensure that people feel welcomed and valued. Since beginning this project, we have made sincere effort to be good neighbors. We've introduced ourselves, maintained an open door, and welcome conversations with anyone in the community who wanted to engage. That has
always been our approach. In addition to investing in improving the existing structures on the property, we've taken significant steps to clean and restore the site itself. During construction, we've removed debris left behind by previous ownership, including garbage and ban abandoned equipment such as old
tractors, an old RV, thousands of metal wreath rings, and other materials that accumulated over time. This was not just a construction project for us. It was a full restoration effort to bring the property back to life in a way that the community could be proud. While I do not want to dwell on conflict, it is
important to acknowledge that some of the opposition has gone beyond disagreement. Mr. Vieiraa has at times trespassed onto our property and confronted and harassed members of our family, our staff, and has shouted at us and our patrons from the surrounding wood areas. These incidents, along with
the broader pattern of behavior, are documented in police reports. I won't go any further on that. At the same time, there have been repeated statements that mischaracterize our business and our intentions. Despite this, we have remained focused on operating with professionalism, respect, and commitment
to doing the things the right way. That is why we are here tonight. Change of use variance. That is why we are here. South Street Gardens is a realization of a long-standing family vision. I am proud to be working alongside my parents, my siblings, and my two sister-in-laws and building something
meaningful here. My family has been in the landscaping industry for over 30 years, and this project represents a natural evolution of what that experience is in the form of a new business you now know as South Street Gardens. From the beginning, our goal has been to recreate how the previous
business, Glendale, used to do business. The industry itself has shifted. Today, successful garden centers offer not just products, but an experience. That is exactly what we've worked to build. A place where people can spend time, gather, and connect all the nursery garden industry. Importantly, the
principal use has not changed. We are and will remain a nursery garden center. The request before you does not alter that foundation. What we are seeking is the ability to thoughtfully enhance that experience through two comp complimentary elements, a small cafe component and an event space for
intimate community oriented gatherings. These additions are not separate from our business. They support it. They encourage people to spend time on the property to engage more deeply with what we offer and then return. Providing a space to enjoy a coffee or a light bite while shopping or hosting small
gatherings on a setting we have already created aligns directly with how modern garden centers operate successfully. We believe that granting this variance relief would not only support our business but would also provide positive benefit to the broader community. It creates a welcoming destination, encourages local engagement, and
enhances the character of the area in a thoughtful and responsible way. Before I close, I would like to read a review from one of our patrons. Such an amazing such an amazing addition to Marstown. South Street Gardens isn't just a garden center. From endless stunning fountains
to exquisite planters, unique and extremely healthy plants, Ally, I'm not going to permit the review. Sorry. >> It's just complete hearsay. I mean, we, you know, we have a lot of evidence, but that's just hearsay. We're not going to hear it. >> Well, it's someone describing the
property, and ironically, that was actually a review from Eric Vieira on July 18th. That just so happens to supposedly be one of the residents who is opposing the application. That review has since been taken down. Um, our plan has not changed. Our vision, our vision has evolved, and that is why we are here
tonight. Okay. Hypothetically, hypothetically speaking, someone characterized our business as peaceful and serene. And if you're having a bad day to go there, it should say, "Come on." >> Yeah. >> You can't say, you can't bring in. We
have no idea who that person is, where they're from, what their line is. >> I'm just saying someone someone >> that doesn't matter. >> Okay. >> Other than that, thank you for your consideration and if you have any questions, I'd be happy to answer them. Okay, >> I got a question.
>> Don't forget we still have Mr. Goldberg's question to ask for, >> but I I've got a question right off. Uh, you talked about your family's been in the landscaping business. Do you intend to provide have landscaping materials on site such as mulch, stone, uh, wood
chips? Are you going to be storing any of that on site? >> It is a completely different business operation. Brewin and Sons has a shop in Bernardsville and an office actually a couple doors up from South Street Gardens. They are two completely different business entities. >> They're two different entities, but are they going to store anything there?
>> Well, nursery, not brewing and suns nursery garden center materials are similar to landscape material. It is. >> But I So do we have any like on the plans that have been submitted, do we have areas where these items are going to be stored? >> There's no plans for that. >> So you're not going to have those
materials on site like in bulk, you know, when they show >> in in bays and things like that. >> Yeah. and bays are like, you know, you put them on the front end loader, put them in the back of the truck and you deliver to somebody's house. >> Not not to our knowledge. Not we haven't for the question is you're not going to
do it, right? >> We're not going to do it. That's not on the site plan. We're following the site plan as proposed to you here tonight. >> I just want to make sure of that. >> Okay. >> Um Mr. Chairman, can I ask you a question? Sure. So, hi there. Thank you for coming back and coming to all these. Um, so I think you know we understand
you know your family is is is you you're seeking to take this place that was formerly a florist with a greenhouse etc. Um I think that everyone is you know as far as as the board planner and it's not I don't want to speak for the board but I think I think we understand that I think you know what
the objectors have said and what we've seen with our own eyes um you know from their presentation and from you know your Instagram etc is is is really the events and you know we understand you know if you don't get this approval that those events will not be able to continue but I just want to confirm that
you you you would be adminable to reasonable conditions put forth by this board that would deal with things like and and you know to be honest some of these things are not the easiest to enforce like you know maximum number of attendees but there is a fire code you know the the type of noise the sound
because you know I think that that's somewhat from what has been going on on the property you know I think we'd be looking for additional enhanced conditions over that. So I just want to be sure that you understand that and that those would be enforced as part of the site plan approval. >> Absolutely. Absolutely. Um, a couple
more questions. There was mention uh spotlights on the buildings. >> All of the lighting on the buildings is in compliant from what I understand with town code. The light I think that is being complained about with regard to um our opposers is a JCPNL light that is
actually on a telephone pole. >> That's not true at all. >> And the lights to my knowledge to my knowledge the lights are actually on sensors regardless. So they would only trigger if there is a motion. >> Just just hold on. You can't just shout out things, please. Um,
would you be amable to having all the lights with uh so that they would project downwards and not out? >> The the lights that we have do project downward to my knowledge, but we would be amendable to any conditions that the board would provide with us. >> We work Mr. Buch's office on that to make sure they're down shielded
appropriately in the splash. >> So everything will be dark sky compliant. inspection that's all done >> and if there is you know a post approval look back required we have no objection to that being part of the you know 6
months from when we're operational under the approved conditions if this were approved >> yeah I I would you know and that that is to say that if any before a co before perfects were issued the the only lights that would be permitted on the property would be
exactly what is shown on the site plan including the specs and the details. So you know that that includes you know be able so you know the inspectors township would confirm what's the um you know whether it is JCPNL etc. Um but you know
the the the site the lighting plan would be exactly what was constructed. So and then that's again that's not something that needs to even go in the resolution because that's just how things are done. >> So Mr. Goldberg, your question. >> Uh, well, I can Would you like me to re ask the question to you about the food truck?
>> I know. I Yeah, please. That would be helpful. >> Okay. So, the the food truck is there. Is is the reason the food truck is there um because that's part of a permanent plan or was that put there to service your current customers given that the coffee shop is not there? So, is it a function of, you know, how long this has
taken? That's why the the food truck is there. And is that planned to stay there to support the coffee shop or just speak to us about the the food truck? >> Uh the food truck is ironically also owned and operated by the brewing family. Um I think that that should be noted too here for this case, but it is
a temporary it is a temporary trailer. Um pending the approval of our cafe here that would the anticipation would be removed from the property. Um so yes to temporarily >> Mr. Mr. Goldberg, that that's a really important question because I you know, if you were to if that was something you
wanted to keep on the property, that would have to be part of this application. >> Yes. >> Because the way that food trucks were previously discussed, and again, we're going back eight months or so would be hiring one for an afternoon for an event or something like that. >> Correct. >> Um and the other thing I want to note is, you know, I just I just very quick
glance, it appear, you know, that food truck cooks food, cooks breakfast sandwiches. You're cooking there. You're not going to be doing that in the accessory cafe. That's part of this proposed use. Correct. You will have light pastries, things of that nature, but you'll not be making bacon, egg, and cheeses.
>> I would say food would be provided in the cafe, >> but you'll not be there would be no commercial kitchen, right? That that >> was the previous testimony was there's no food being made on site. You might reheat something, but you're not there's
no food preparation on site. Well, as the as the conditions would impose, we would follow those conditions >> because that's a totally different, you know, just also in terms of not just use, but also in terms of what you would have to do for the building and the site to have a fully approved commercial kitchens because that again, yes, like
serving, warming, things of that nature. That's how it was described to us, which is very typical of either standalone or, you know, coffee shop inside another store. I agree. You know, we we see them everywhere. But I yeah that this is you know and and I know this all probably
sounds very specific to you but this is what this board does. We especially when you come to us with you know these uses that >> I know they're not new. I've been to many of the place several of the places on the list that Mr. Tobia provided. >> But you know this is a specific site. it's in a residential neighborhood and
we you know it's it's it wasn't always residential property but so we need to know as from the board and so also for the township enforcement purposes what's going on here. So that's why we're asking all these questions and the best answer thing to do would just be to just be honest if you know I don't I'm not I'm not accusing you of not being
honest. I just know that like not everybody always knows what all your future plans are going to be. If you think the food truck might stay, just say that right now and that'll may save you some time, but you know, so because everything you say is here is part of the record and will be part of the test testimony.
>> That's a very good point. So Matt, what what is the envision? And now granted, this is a small ancillary part of of the operation, but what is the you know, going back to, you know, Mr. Goldberg um led with this question and and I'm glad the board continued the dialogue. What is the envisioned scope of what food
preparation is anticipated and proposed to be offered on this property under approved conditions? >> So under the approved conditions, we would follow the conditions that are outlined here in the approval and to the holiday. I will look back at the holiday time. We had a hot chocolate vendor who
has an improved food truck took out a permit and accompanied us on the courtyard and Santa Claus visited. Uh people were offered hot chocolate. So I think it is important to note that different food trucks offer different services dur during different times and seasons. So I think the temporary nature
of these food trucks would be used to accompany the seasonality of our business. Um and we would follow the conditions outlined here in the approval. Um >> okay. So maybe I missed it before, but I thought you said there would be no food trucks. >> Are you saying only on the temporary use
their personal? >> It's not intended to be permanent. It's temporary. But but there will be other that you will I know you may not run these other ones but you your business you would be the ones hiring them and >> yes we would be hiring
>> that is that's what was testified to previously >> right >> which is that for events but it was more like I said it was more like for exactly what you were talking about and I understand that you know food trucks can those could cook potentially that's a totally different than than a permanent kitchen >> but we just want to know you know a food
truck for special events is different than a food truck that is there from 8 to 4 Monday through or Monday through Saturday for months at a time. >> So then there would be separate permits issued by the municipality for those every time. So there are >> there are temporary retail food
establishment by days essentially. So those those vendors >> those vendors those food truck operators would separately register for the events the the events they're hired for and be
be inspected for those dates of service. >> Okay. >> Right. That that would then expire >> as like a basically a special event permit >> under the health department code. Um to the benefit of the board's understanding and the record,
um there were prior discussions with the health department about the food trucks. Mr. Brewan just testified that there were was hot cocoa and coffee vendors on site during the holidays. That was um
known to the health department. It was inspected. It was registered temporary. Basically, the special events that they're contemplating under the D1 use Mhm. >> request. Now, the truck that is there on site currently, as they indicated,
is a a temporary nature until this matter is concluded. That truck once it's removed, if it was to come back, it' be on a special event basis. >> If we allowed it, >> right? If allowed as part of their prior
desire for it for special events. >> Okay. And what about is there a limitation of the number of trucks per event? >> I think that's up to this point. >> Not under the health department's code. That would be a contemplation of the
zoning considerations of this board on this application. >> Right. >> Okay. So for discussion, >> so Matt, taking the food trucks out of the equation, the special permit ones, the one-off ones that are coming from day in the summer, you do lobster, whatever the case may be.
>> Taking those out of the equation and taking the one that is there now out of the equation if the coffee shop were active. You do have kitchen facilities on the property. What would be the scope of what happens in those day over day? So the kitchen the kitchen as proposed
as provided by the health department would be up to the health department standards and you'd be allowed to use it to prepare cook food on the property. That's as per the conversations that were had with the health department pending their approval. Um since >> Okay. But the conversations that were
had with this board >> were that you weren't going to do any cooking on site. >> Yes. So I believe the best representation would be because of the kitchen would be up to the standards as any regular commercial grade kitchen >> that food could be prepared on the
property. >> Okay. >> Okay. So you're taking back what you said previously, right? You're changing your testimony. >> What's on the plan is a prep kitchen. It's not a commercial kitchen, >> right? >> All you're using it for is for reheating and for final presentation of something that was originally prepared off site.
I'm saying since my original testimony and with the conversation the health department, this is the last time I had testimony was back in July. So I will say since then the conversation with the health department regarding the kitchen that happened after my testimony would
hold that kitchen to the same standard as a commercial grade kitchen. >> No, we understand that. But the question is will we allow it and you haven't applied for it. >> You can't just say the health department said it's okay. you have to come to us and we have to approve it. >> It's not even in your plan. >> It's not in your plan. We don't know
where it's located. It >> they do they do show the prep kitchen on the architectural plan, >> but not a commercial kitchen, >> but not a commercial kitchen. And I would say that I and these were these these conditions go back to these some of these go back to the first hearing
>> and and and we were always under the impression that there would not be >> right >> sub like and we can we can find a definition for that. You know, I would even say, you know, to me a prep kitchen, it's like, do you does it even have a full stove? No. You know, it's warming. It's a warming kitchen. Yeah. >> Yeah. It's got some
>> coffee machine, some warming. >> Yeah. And you know, do you like I would I would have honest I would recommend honestly that we would under these conditions, I would I was going to recommend that we ask them that there is no warm because it it just brings it a different perspect. It it's it's different than what the testimony that
was, >> right? they, you know, is it a gas hookup? Is it does it come down to a gas hookup? Things like that. So >> So wait, I'm sorry, but your testim your opinion would be or recommendation would be no reheating. >> No, you can reheat, but there's a
difference between um you know like and I I need to we need to we need to pin this down, but there is a distinction between a prep kitchen >> and a commercial kitchen. A lot of it has to do with ventilation. It has to do with things like that. And the health department, you know, they give you they have objective standards. They don't
know, you know, I mean, they work with us, but they, you know, if you propose something, they tell you what you have to do. So that's, you know, >> but they don't look at it like so whether it's a permitted use. >> No, they don't look at it as like what's the scope of, you know, how does this affect the overall operations of the
site? They look at, you know, health and safety. >> What I will say is my family will follow with the conditions of approval provided by the board. And I apologize if any conversation or revision has evolved since last July. It's been quite some time since then. So based on the
conditions of approval, we are adamant that we will follow those. >> Okay. >> And I apologize, my imagination got ahead of the horse here. >> And and I just want to clarify which is that just just for the board's knowledge, just just basic standards. These are not township standards, but generally um a warming kitchen, prep
kitchen will have like an electric oven that only gets to a certain temperature. It doesn't go over like, you know, 350 400. Uh, so you can't actually generally not meant for cooking and so then you don't need the type of hoods and ranges and stuff like that. So that I think is
what we would limit them to is a warming kitchen versus a I mean that not even not even limit that's what that's what I thought was put on the record previously. >> Right. I have multiple family members that I am representing by sitting up here and uh given a condition of approval if it
would be giving up cooking in the kitchen that that is probably something my family would consider and I would just need a moment to confirm with them. >> The goal would still remain related to this in a way is the special permit temporary oneoff food vendors that come on the site with a food truck. That is
still desirable I think at the very least event special events holiday things like that. Is that correct, Matt? >> Yes, >> that that's what we how we understood it the beginning. Thank you. >> Okay. So, I can I just >> Sure. >> Yeah. Go on. So, just to um continue on
with the the the prep space or the warming kitchen, the prep kitchen >> in that physical I mean when I was when I toured the property was given a tour you go down the steps from the event space. I think the kitchen was on maybe the right at the bottom of the stairs. Is that >> has the vision changed over the last year? Like what's currently installed
there right now? Is there gas ovens and stoves? Is it currently fitted with any hardware cookery? Is it set up like a kitchen if I were to go there right now? >> If you were to go there right now, there's kitchen equipment in there, but it's not installed or hooked up. >> Okay. >> It's just sitting in there. We have
>> What kind of equipment sitting there? >> It's there's a refrigerator, an oven, a sink, a table, like a counter. >> Okay. Okay. Thank you. Um I do have one other question for you about the application. This is my last question. has to do with the sign at the front, I
believe, on the um site plan that calls for the ability to put in a monument sign, I believe. Is that correct? Um and you know, I think we have a monument sign right here in front of the police department with a digital display that shows all kinds of flags and colors and celebrates things that happen. Is that
sign intended to also have that electronic component to it or it's just a >> No, just a sign. It would the proposed sign that we um would like to have is just changing from the two white posts to a column. It would just be a simple South Street Gardens sign with the
uplighting. >> Same size. >> Yeah, the same size. The sign would say the same. It's just the posts would be changing. >> The reason I'm asking is given the residential neighbor. I mean, I the current sign I think works well, but >> yeah, just in terms of the residential look and feel of that area just to sort of keep that same, you know,
>> I honestly got the inspiration too from the town building here and also a couple different buildings on South Street. It's just changing from the two white posts to a >> with some sort of wood sign in the middle. No LED or anything. Okay. >> And this goes back like a year was to go back to Fred Stewart's test. >> Yeah. I just wanted to just clarify for
you. No, I just wanted to circle back. Okay. Thank you. Okay. And and just on the sign, the sign was going to be externally illuminated. Is that right? >> Yes. Right. Relocated from its current position to be on your property, right? It's part of your variance relief. Yes.
In terms of setbacks to the sign, >> right? Okay. >> Okay. Thank you. Okay. Any more questions from the board? Any members of the public with questions? >> Thank you. You're not even the conditions that I'm
>> Mr. Brun. Um, you testified both today and that your testimony back a few months ago. >> Well, we're only discussing the testimony tonight to be clear. >> Well, to the extent that it may have impacted what he said while ago. So, let's hear the question. I >> I don't really need to be told by
council what to do, especially council who said his argue. We're letting you ask the question. Go ahead. Let's go. >> Stop it already. >> Mr. Brown, you testified tonight uh that it is your uh philosophy uh to to be a
good neighbor and to work with the neighbors. Is that right? >> Absolutely. >> All right. Now, does did that philosophy extend to does it extend to uh having any of your neighbors on the payroll? >> It has. >> All right. And does that include
um >> again, I don't see the relevance here. It's a financial. It's also a personal inquiry. This goes beyond it goes beyond the scope of that exact procedure. >> Well, we'll we'll hear it to the extent that person might get up and testify and say this is a great application.
>> Does does it include any of the three people who testified in favor of this application back in July that they are on your payroll? >> I'm trying to think back to who testified. >> How about the people at 22 Prospect?
>> They're not on They're not on payroll. Have you have have you provided them assistance for their uh improvements in the back office? >> Provided them assistance. I have not provided anybody assistance and anybody who has wanted to work. It has been really hard to find people to work. So it has been really hard to I've begged people to come and work for me. It has
been hard to find people to volunteer for our business to work. Just to preface >> and you are flat out saying that the people neither the husband or the wife at 22. Now the the two folks that you are referring to at 22 Prospect are not on our payroll.
>> Was he the Santa Claus that you referred to? >> Yes, he is a Santa Claus. >> He is Santa Claus. He is the Santa Claus for what I know and believe in and he did it out of the kindness of his heart as Santa Claus himself. That's what he is about. Chris Kringle is about making
an impact to children all over all over the world. What he did bring in thousands of male s address to Santa Claus. >> Um, and is that the sole relationship that the the the husband at 22 Prospect
has had with >> 383 South Street? >> Can Yeah, we've heard about 22. Let's go move on to the other. >> Well, well, because he testified glowingly about how this is such an improvement for the neighborhood. And if he's getting something out of it, that obviously shows bias. >> Well, we we established that that he was
>> biased right at this point, right? You're biased. >> They don't pretend to be independent. Let's move on to the next person you want to bring up. >> All right. Uh Mr. Brun, um is it am I correct that uh
>> you have obtained a wet chemical system an approval a permit for that? >> What do you a wet chemical system? >> Yes. >> I don't testimony on this when Mr. >> Well, we can he can ask that question because I'm not aware of what he's
referring to. >> Right. It has to do with I believe fire suppression for kitchens. >> I'm I don't have any knowledge on >> All right. So if a if the town records
show that there was a permit for a wet chemical system and you're saying you have absolutely no knowledge about that or what it is. >> Let him answer for himself. >> Yeah. Let me let let's get the question done and then we he can say I don't know >> standing respectively fit Mr. Chairman
at this point. >> Come on ask the question again please. >> Yes. >> I'm not familiar with what type of system is required in a prep kitchen, commercial kitchen. The project was a big project for my family to undertake
and I am familiar that members of my family have been in part of different processes. I personally am not aware of any suppression system or any of the logistics to that matter. >> So if I can ask you one more question that Mr. Kelly hopefully won't answer. >> Okay. >> Then pardon I know I know it's getting you know we're getting annoyed at each
other. Okay. >> Um that if a wet chemical system is particularly designed for a full-grade commercial kitchen, you're saying you would have no knowledge of that one way or the other. Correct. >> I would say so. >> All right. That's fine. last.
Um, well, I'll put it to you, Mr. Chair. Uh, one of my clients, Mr. Vieiraa, was raised twice by Mr. Bruan's speech to the board. Uh, one having to do with an alleged >> We're asking questions of this.
>> I'm asking for some guidance. >> Okay. that once in terms of an alleged uh posting, although it was not allowed to be described as hearsay, but the name was given. And second, my client having been alleged to have trespassed on the site. Now, the question is, I mean, I
can cross-examine, but more to the point, uh, I want to be able to put Mr. Vieira back on the stand with these last minute allegations having nothing to do with the land. >> You testified last time that he was not on the land. He was on the property behind it in the know what was the paper
street. Yes. >> So, it's been testified to. >> So, the trespass is just a >> Just has nothing to do with the merit of this application. >> It's just not relevant to the application. >> I'm not the person who raised it. >> I know that. >> It doesn't matter who raised it. It's just not relevant. >> It's not relevant. Has nothing to do
with this application. We're not even going to consider it. >> Then I have no further questions. >> Any other members of the public with questions of this witness? Seeing none, hearing none, close the public portion. >> Thank you, sir. We've got um our next
witness is a new witness. It's recall of civil engineering testimony. It's going to be very brief and limited on the inquiry raised by the injector, civil engineer, as to whether or not we trigger the agent development. Right. >> This is a new witness to the forum though on behalf Mr. Stewart's stent this evening, Mr. Chairman.
>> Okay. Raise your right hand. Do you solemnly swear that the testimony you'll give to this board will be the truth, the whole truth, and nothing about the truth? So, how you got? >> I do. And your name, please? >> My name is Patrick Mlen. MCC L E L L.
>> Pat, briefly for the benefit of the board of your record, your background, professional credentials and licensing in the state of New Jersey. >> Certainly, I'm a 1989 graduate of the New Jersey Institute of Technology with a Bachelor of Science and Civil Engineering, licensed professional engineer in the state of New Jersey since 1994.
My license is still in good standing today. I'm the 50% owner of uh MCB Engineering Associates in Toou, New Jersey uh since 2002. Uh we've lend assistance to Mr. Stewart's firm from time to time when there's some
scheduling conflicts. Uh and I happen to know Mr. Stewart actually his whole life. We grew up as next door neighbors. Not that that is important here. Um and then also I serve as the board engineer for the township of Westville for its planning and zoning board.
>> And your license is in New Jersey. It's in New Jersey and still current. >> Except as a professional engineer. >> Thank you. >> So Pat, you're here for a very limited responsive detail this evening. Uh and
it was an item we advanced uh today digitally um to the board and and I think we should mark it. Rich, I don't know what exhibit we're up to on the applicant side right now since >> A5. Yeah. >> So A5 we're going to mark. if you can identify what A5 is for the record, Pat,
before you start describing it. >> Sure. A5 is a letter under the uh letterhead of Stuart Surveying and Engineering that's dated April 15 of 2026. Uh it is a summary of uh uh comparisons regarding the uh notion of whether or
not this project is a major development. Uh highly uh highly more specific regarding the idea of impervious cover. Would you like to read the analysis and conclusions of that report which to be
clear you collaborated with Mr. Stewart on this analysis on this employee since the prior public meeting but it was offered by the applicant subjecting engineer. Is that right? >> That's correct. That actually was the genesis of of this uh study. uh you know uh we we did see the exhibits that were
presented by opposition's engineer uh specifically the infrared 2006 uh imaging that he showed that uh indicated some red uh ground covers which in infrared language means that the ground could potentially be green and what that raised in my head
immediately is that uh you know we have to be very careful about what the definition of impervious cover is in the state of New Jersey. Uh it's easy to look at something that's pavement on a uh aerial photo and and and conclude it's impervious. But sometimes we have soft what appear to be uh landscape
surfaces uh and we default to them being uh permeable surfaces. But the what's important to note is that the state of New Jersey defines imperous surfaces now as land as land that is highly resistant to per uh water infiltration. That's
different than saying a hard surface. So there are cases where gravel is impervious, there's cases where soil is impervious, there's cases where grass is impervious, etc. And uh what it comes down to is that the days of being able to look at an aerial photograph is not
sufficient on a lot of in a lot of cases to make that determination. We have to kind of resort to a bit of a forensic approach now. And that's what that's what we're here to talk about tonight. That you heard a lot of testimony about that this property has been active in various capacities for decades. And if
you look back through um aerial historic aerial photographs, you know, we see disturbances going as far back as 1931 where this property looked like it was it was uh totally disturbed. Now, the resolution of the photo isn't clear enough to say whether it was pavement,
grass, gravel, or what have you, but uh but it certainly indicates that that this property has been active for decades. And uh so the conclusion or or the criteria that we have to follow is very specific in New Jersey when you're determining whether or not uh you're
you're you're uh exceeding the threshold of major development from a an impervious cover perspective. You're to make a comparison between two situations. One is the comparison of the property in 2004 and that's what Mr. Chis Chisvet was uh making his point on.
and then you compare it to the situation today which is a little bit more easier to determine because you can go out and do an actual uh survey an actual investigation. So I think we're all in close enough agreement with the impervious cover today. But the where I differ is my interpretation of what
happened in 2004 and I'd like to offer uh reasons for that. Um first off uh to for starters the soil in the rear part of the property which is the big uh part of the big concern is is a soil that's classified what we call hydraologic soil group D. What does that mean? It means
that the soil is a poorly drained soil. Not a surprise because we have wetlands nearby. We probably have high groundwater table over there. We probably have very silty materials. And the uh the the uh the uh national survey for soils is indicating that it's
relatively impermeable soil. And we know from experiences with NJP that if you have a classified soil as D, they consider that an impermeable soil. So whether it's grass, mud, pavement, or what have you, water will sit at the at the top lenses of it. And this is this
is uh somewhat um consistent with your testimony too about some of the localized flooding in the area back back in in the earlier days. And I would opine that if the property had a sandy soil, let's say that that traditionally would allow soil to easily infiltrate
into the ground, you probably would not have had those situations. And then when you go and you put pavement on it, you'd see a substantial impact, a substantial difference. But uh since those flooding situations have been happening you know you know as far back as I think testimony was 2010 there were some
issues. The the opinion forensically for me is that the soils were not permeable at that time. Uh the other thing too is that when you look at um you know green surfaces, grass surfaces or or what looks like a grass surface on aerial photos. Uh, and anybody who's done
weeding in their yard can can attest to that. You could have a a beautiful patio and if you neglect it for a while, you get soil drops on it, you get seed drops on it, it starts to get green. And once you start elevating looking, you know, getting higher up, it looks like it's green. It looks like it's grass. And uh,
that's also evidenced on on the um, Mr. Chvet's uh, exhibits as well. If you look at uh I think it was his objecting uh exhibit two where he shows a 2020 uh aerial photo, there's a lot of green shown on that one, but we we know from experience going out there because
that's more current that it actually is or a lot of impermeable surfaces out there. So, um with those things in mind, it's it's a reasonable assumption in my professional opinion that the soils were not uh permeable back in 2004, but in
fact are impermeable. And so what we did then is we did one more level of protection. We actually uh and I did this personally went out in the field earlier this week uh with with a uh a penetrometer device. It's a it's a pole that you push into the ground.
Measures the force that you're pushing. It looks like a pogo stick, but it has a a pressure meter on it and and it's a pointed rod that goes into the ground. In 2017, the uh conservation districts in New Jersey gave us our first attempt
to define uh real uh physically what an imper permeable surface is. And that was by taking this penetrometer device pressing down on the ground that if it go if the post goes in 6 in or greater without pressing down greater than 300 lb per square inch, that's a permeable
soil. They rely upon that because uh they discourage the compaction of soils during construction and if you show that soils that are supposed to be permeable are in fact compacted because of the construction activity you have to go back and and and remedy that. Uh but
what they did probably not intentionally but they certainly gave us uh as a as a as an industry some kind of a standard that we can measure and we have actually uh exercised this measurement to help uh with applications before the D where we
made a claim that a that a non-paved surface was impermeable the D said well it's not pavement it's permeable and we relied upon the conservation district's method to determine that in fact it is impermeable, doesn't need to be just pavement in order to be an impermeable
surface. And ultimately, we receive uh flood hazard permits on the basis of them agreeing with with our position. Uh so when we apply that here uh you we come to the conclusion that uh forensically because the property has been has been used since at least the
1930s and and activity has been throughout the site that it has uh over years has has accumulated ground cover compaction uh gravel all sorts of activities we hear buildings green houses etc. Uh and then when we go out there today and test it in the areas
that are green, I mean there in the back of the property, there's actual grass areas that we ran the tests in. Uh so we didn't go into the gravel parking lot. That would kind of be cheating for this purpose. But in the grass areas, we could only get the penetrometer on the ground 2 in. Uh and that so that by that
definition is impermeable. And then the theory is well did it become impermeable from 2004 to now? And again I opine that that it did not because the efforts to take a permeable soil. If you had grass uh a grass area that you could successfully perform that test on uh you
would require uh you know heavy equipment and a lot of activity to compress it to become impermeable surface. So it it it is not something that would have probably happened uh you know overnight. It's something that happens over decades of use and and and you know there's uh also the placement
of material which again by uh by some of the historicals you know predate uh you know predate 2004. So with respect uh we have a strong opinion and we've outlined it in the letter that the impervious
cover uh was actually greater in 2004 based on uh not just the ground cover but the uh statistics of the soil itself. the soil type and uh and the history that we see of how the property has been used. And then you heard testimony prior and and I can confirm
that the plan before this board is a proposal to reduce impervious cover over what is there today. So when you put it all together, what we have is uh is a a net uh decrease of imperous cover and then the other prong of of uh major
development is that the uh current area of disturbance. So, this is a little gray, too, but I think it's a little bit less gray. You've got a site that I think we could all agree has been disturbed uh almost in its entirety for decades. So, we're seeing a redisturbance of land in this
application. And you could question whether or not that counts or doesn't count. Let's just say that it counts. And but that's been quantified to be about 38,000 square feet, which is under the one acre of disturbance. That's the second prong of imper of uh major development. So respectfully, our our
findings are that uh that the project does not meet the definition of major development on both of those prongs and therefore would not be subject to the rules of major development. >> So did you take notes on each of the
time you use the U pen penetrometer? >> Yes. Yes. And they were they were consistent throughout the site. Uh we did six locations. Uh we did all the location again if you go to the rear of the site there's you know there's where the parking is occurring today it you
know it's more of a traditional gravel compacted and if you did the test there the you know you clearly would be u uh a um you know solid surface so just to try to be fair we went into the areas that are that are gr that have grass
established on it again I I look at that as a you know more of a property maintenance issue and I know that the applicant has been, you know, doing a good job of cleaning up the property. And I bet if you clear that grass away, you're going to find more of this impermeable surface. And based on the
measurements that I took, I would bet that it's probably 2 to 2 and 12 in below the surface because when you go in down with the penetrometer, you get about 2 in down and then you don't go any further and you hit that 300 PSI threshold and uh you know, and again, that that meets that criteria that the
conservation district has set for us. So, um, you know, again, I think what we have in the rear is more of a property maintenance issue, which it seems to be something the applicant is very enthusiastic about working on, and it seems like there's a little bit more cleaning up they could do if they so choose. Uh, but again, uh, the
disposition of those areas, in our opinion, remains in uh as impervious surface. >> So, you said there's some cleanup they could do. What would that entail? Well, if if if they so desired to take, you know, whatever over the years, you know,
if you don't maintain the property, and it sounds like that there was a time when the property was not wellmaintained, there could be an accumulation of some soil on top of the of the um gravel and then there'd be an establishment of some vegetation. It's not really a quality lawn area. It's
it's just poor maintenance and I'm sure we've all had neighbors who do that as well. Uh so again, if the applicant looks at that and says, you know, that that's ugly. I want to do something better there. It looks, you know, their garden center. Uh it certainly would be uh a thought that would cross my mind.
They could, you know, go out there and maybe, you know, put more a little bit more top soil down. They could, you know, establish a better a better grass, but it would it would still be an impermeable soil because because below that grass turf is a is a heavy hard pan layer that water's just not going to go
through. Okay. Um, board members, any questions balance of this discussion hangs with me and and my cross. So, uh, I've just joined the Zoom meeting so
that I can as a panelist put materials on the screen for everybody's benefit. >> Okay. Um, I'm going to share my screen to what was previously um marked as 09, the objectors exhibit
9, which includes Mr. Chvet's um exhibit. And I just want to use this for reference to the discussion that was just had >> I'm sorry, that's 09. >> This is 09. Yes, this is um >> get that right away. This is page five
of 12 on 09. It's marked C3 from Mr. Schizvet. U the areas that's outlined in in on this map are are the areas that he identified by aerial imagery as being uh additional
disturbance areas and uh constructed with compacted gravel. some of the improvement areas that he was using to demonstrate his major development position. Uh and and for uh the question being that the conversation that we just
had heard in your testimony regarding uh soil conservation district standards for impermeable surfaces, these areas are areas in which you conducted your testing in earlier in the week. >> The rear? Yes. >> Okay. at the rear of the specifically at
the rear of the property >> specifically at the rear. Correct. >> Okay. >> Um and then I'm going to flip over to the planners objectors the objector's planners report page three of 11. There are aerials that were
provided at that time. Uh 1931 uh this aerial to the lefth hand side this being the rear of the property. Um and and the area if we could see on my cursor or perhaps I need to kind of highlight it in this area here being
that rearward area as I flip back to '09 similarly noted here to the extents of the property where you did the testing u there there was a prior history of the garden uses the activity the disturbance
the compaction of the soils >> you know his history of about a hundred years of use, disturbance and compaction and the results that you found were consistent with that being impermanmeable surfaces, low infiltration rates. >> Uh correct.
>> So irrespective of when we look at what date we look back to 2004 or prior we see highintensity runoff generation from the site by all all land covers because of the underlying soil conditions.
>> Correct. And if we look at restorative values of disturbed areas, as you noted in your testimony, there may be grass land cover, but that land cover is not well draining. It's not absorbing. It's creating the same
runoff. Essentially, a runoff pattern that is relatively consistent of high runoff generation for 1930s through the 50s and on for the entire footprint of the property. >> Correct. the entire footprint that is
current was disturbed during the Bruins recent time on the site and disturbances that were without the approvals that are being contemplated tonight? >> Yes. >> Are there any areas of the site that your client has disturbed that you
believe were outside of prior footprints of disturbance of the site? >> No. No. areas prior to 2004 where the storm water rags look back to major development. >> No. >> Okay. So,
in a strict interpretation of NJ 78 and major development standards, you have accumulative disturbance of a dist of an acre or a quarter acre of imperous surfaces. And the look back is to 2004. That's when the stormwater rules came
into apply. And there's aerials that go back to that date. When we understand site histories that predate that, we have sites that such as this one, I believe, that have a high generated runoff that is
essentially a developed and improved site that over time has had restorative regeneration and regrowth, but only really to to surficial land cover, not to runoff rates. So when we look at a proposed site plan and
we see an a reduction from the surveyed conditions to what's being proposed, the evaluation of that if done as a minor development or at the highest standard of a major development would generate a reduction in peak flow
runoff as well as quantity runoff. >> Would you agree? >> Yeah. And so with that understanding to me as the township engineer and the board's engineer it is more critical for the major development standard to
understand net impervious increases since 2004 than net disturbance because the net disturbance if if applied as a major development will not yield the runoff delta and increase that needs to be mitigated in
normal conditions. Normally you look at well- draining soils. You look at wooded areas that retain the water and don't discharge the water. >> And those history of conditions speaks back to some of the concerns that have been raised throughout this application
regarding uh the wood the wooded wetland areas, the tributary um water water impacts during high runoff to the surrounding area. Those are existing systemic situations as opposed to
generated by the last few years of disturbance on the site. So in my opinion to the board, the reduction of net impervious on this site is the critical evaluation point for identifying this more appropriately as a minor development than a major
development. And if it were to be held to a major development standard, we would see uh the the burden of the increased analysis generating the same net result, which is the runoff
generated is equal to or less than what what is being compared as a prior existing condition. So I I I do find it's appropriate to consider it as a minor development. I accept the position of the applicants engineer
and I that was not just crossed that was some testimony from your board engineer and I I I blended that line so that you have the opportunity to then ask me any questions that you have and then we can continue crossing >> just uh post haste. Did we ever swear you in? >> Yes,
>> we have. And I am still acknowledged to be on record this morning. Just want to make sure that was clear. Um, board members, any questions to the township engineer? >> I guess I do have a question about the
disturbance. What you're saying disturbance off of the site that may have been um created by the the applicant um that I'm just using I just have this drawing in front of me from earlier this evening.
So that I see a black line refers to as the property line. Um, so right off of the property line near where the residential units are, there's a a ditch or a gulch or whatever you want to call it that actually runs back towards the wetlands. Um, there's a little wooden bridge that goes over it sort of
connecting it to the residential neighbors. And you know, when I was there, it was visible water. I mean, I think it's dry right now, but it does fill with water and flow. So, it looks like there's a whole row of recently new plantings and landscapings there. And I don't want to assume anything, but I'm assuming that was just put in by the
applicant to make the place look better or spruce it up, but it's a Would that be classified as a disturbance offsite or on the site to have all those sort of trees put in there right along that drainage ditch? It >> It's not on site. It's my understanding is it's within the uh Paper Street right
ofway, the unimproved section to the west >> right >> of the of the road that is improved off of off of um our main entry point that that's not cumulative to the site disturbance. Um those improvements,
including the improvements to the on what was termed on street parking on the site plan, uh those are all previously discussed as and stipulated to for a consideration of a condition for township committee approval because
those are outside the limits of the application and the and the private property. So those disturbances, cumulative impacts, and whether or not they remain or if they need to be improved to a higher standard would be the decision of a township committee as
part of resolution compliance if this was considered for approval. >> Okay. >> Thank you. >> And and I I'll just note back to their site plan. Uh the area you're referring to, I think more clearly is shown on the plan here. this landscaping that's here nearest the
drainage ditch that had wetland flagging adjacent to it. Yes. >> Okay. Thank you for clarifying that. >> Okay. Um since we got a little bit carried away there. Does anybody have questions of either witness? >> Yes.
>> I think it's just one question. Okay. For you is it Mr. Mlen? >> Mlen. >> Mlen. Pardon me. Okay. Close enough. >> I think it's only one question which is this. Leaving aside any legal implications of your answer, I just want like under the
under the applicable res, is this somewhat non-permeable soil counted as impervious or is it not counted as impervious? It's just literally under the rs. >> It's it it's counted as imperous. There there's a burden of proof. Uh because
again, traditionally we've always looked at pavement and we go that's impermanmeable. We all know that concrete, pavement, dwellings, things like that. But the NJ definition in 7 colon 8 which is the uh uh the
regulations of record say have now word carefully that it's highly it's it's lands that are highly uh resistant to infiltration. And that's a way to recognize compacted uh gravel uh tight soils and and in this case, you know,
again, over over the history of using the property, uh it's just compacted down. It just doesn't allow water to go in. Not to mention too, again, the fact that the native soil at that part of the property is this is designated as a hydraologic soil group D, which is a you
know, it's public document and and it's and that says that it's a poorly drained soil. So it start it starts with that soil and and all of these factors put together is what makes this an impermeable area. And if we were if we had some reason to file for a D permit
here or do or do a storm imagine plan, we would make a successful argument that these lands are impermeable. I give up one which is then in terms of this site plan prepared for for peace improvements
was or should have the impervious nature of this soil taken into account in terms of storm water management. >> Well I believe that they were uh because again the applicant's position and Mr. Stewart's position has been that this is a non-major development. So, you know,
from the start the uh that's been the position and then it's challenged by Mr. and then now, you know, we're we're offering a, you know, more forensic approach to to the definition and again we're continue to conclude it's a non- major development because we're under
the quarter acre uh threshold. So, uh so I think we've been consistent about that. >> Sorry. >> Nothing further. Thank you. >> Thank you. >> Okay. Any me other members of the public with questions of this witness or of the township engineer?
Seeing none, hearing none, close the public portion. >> Um, >> how long is this witness going to take? Seeing how nothing has fit that timetable yet. Five minutes.
>> Can I get 10 >> 10 or less on directly on a single >> 10 plus cross plus public? I don't think we're finishing tonight. Plus, you know, board deliberation. There's going to be quite a bit of that. Just >> I say we finish the witness.
>> At this point, Kyle, I'm willing to forego a lengthy closing statement. I suspect our neighbor will have something of >> um Yeah, we're not Yeah, but we're going to be talking about conditions for half an hour. I mean, >> there's going to be a lot of back and forth on there.
>> This applicant, I I understand the board of volunteers. We thank you for being here on a special hearing date. I mean, I have to say on behalf of the applicant that that they're looking to conclude this matter. It's been going on for >> Oh, I would I was hoping you are as well. It's been going on for a long time. >> Is the board willing to stay to at least
finish this witness? Um there would be direct cross public cross and then we would come back and do public you know >> public comment >> public comment board deliberation. >> So then we'd be done with witnesses. We would just have public comment and board
deliberation which you know is going to take over an hour probably. >> Yeah. >> No I I would I would like to get this witness done. He's been sitting here patiently all night. >> Yeah that's fine. >> We appreciate that. >> Okay. Okay.
Okay. Remain standing. Raise your right hand, please. You solemnly swear that the uh testimony you will give to this board will be the truth, the whole truth, and nothing but the truth. >> I do. >> And your name, please? >> Benjamin Mohler. M U L L E R. Uh I'm a principal at Osgard Acoustical Associates located in Woodbridge, New
Jersey. >> For the record, background eventual experience. >> Sure. Um, I've been working in this field for 27 years now. I'm a licensed professional engineer in the state of New Jersey. My license is current and in
good standing. Uh, my background is mechanical engineering from Villanova University. I also have a masters in mechanical engineering with a concentration in noise and vibration control from Stevens Institute of Technology. Um, and I've been accepted as an expert in the tri-state area for
my career. >> Okay. We'll accept you as an expert in acoustics. >> Thank you. Thanks. So, you've had an opportunity to become familiar with the applicant. >> Can I >> Certainly, >> you've had an opportunity to become
familiar with the applicants project plans, their operational goals. Um, you've reviewed the prior hearing um transcripts and testimony when you weren't here. You were in fact at prior several hearings. Um, you've inspected the property and you've performed a thorough analysis and have reached
conclusions from an acoustic perspective as to what impacts there may or may not be with the event space both indoors and outdoors. Is that right? >> Correct. So, you had an opportunity also to prepare a letter that was submitted to the board previously. That letter is
dated 12th of February, 2026. It is titled acoustic review memo. Um, that's on file with the board. Mr. I don't know if you'd like us to mark this. It's been on file for two months now, but >> well, you know what? Since we're going to directly speak to it, why don't we mark it as a
>> A6, please? Yeah. >> Okay. Um, and we've got another exhibit we will show momentarily. And Ryan, I don't know if you can assist us with this. If you want one from the screen, it's the one that I emailed you the other day. It's the single sheet. If I might, it's this one. If you have the ability to help us
put this one on. >> Sure, you do your screen share. Is that something you can pull up? I can log on to the Zoom as well if you need to, but if you're there, I appreciate that. >> Thank you. >> Uh, the PF You double check.
What do you know again Joe? Why don't you do something again? >> You got it. >> Morris Township, Joe. >> Either one. Is it the acoustical memo? >> Yeah.
Perfect. Thank you very much. So, this document will mark as A7. I'll let Mr. Mueller identify it for the record and then Ben, please start describing the benefits we are now including. >> Do we have a hard copy of this? >> Uh, I can send hard copies in. I think you're sending the PDF. Okay. Provide a
PDF digital file was what we were providing. >> Yeah. So provide a hard copy when you can please. >> Okay. So uh currently up is a an exhibit uh that we would entitled South Street Gardens music sound survey results. Um
it's dated March 25th, 2026. And it's an an annotated Google Earth aerial photo uh showing circles with values in them which are results from a sound survey that I conducted on the
premises uh on the 25th of March. >> Okay. So Beth, if you want to walk the board through what's involved with your analysis uh with the goal, I know being identifying what the decimal levels would be at the property line at various locations around the property. um what you did, where you did it, and what your results were.
>> Sure. So, so briefly summarizing noise testimony to date, we know that there's the local and state noise ordinance. We know that the project, regardless of what use this is, needs to comply with it. And then there's been a lot of conjecture over the capabilities of the
project doing so. So, our February memo was primarily described to provide a um a narrative approach to ways that the applicant might be able to better assure the municipality of of that compliance. Um we've now taken a step further since
our last meeting. We we've discussed in in in the um in detail how this is a unique application because there's entities that are there versus what we're proposing. And so we went on the site on March 25th and tested the sound
systems uh both that are house sound systems, ones that are currently installed, as well as what I would call mobile sound systems, which would comprise a pair of speakers uh much like a DJ setup. So what I tried to do is show a series of tests that we conducted
on the premise uh in different colors. Um, apologize if we're uh colorb blind here, but I I'll walk you through the exhibit in the location so that everyone can can understand. So, the first measurement group that we did was we tested the house system in the upper
story of the main building that's shown by the circle uh on top of the roof with the 92 value in it. So, with the system set up to its maximum volume, um we were measuring 92 indoors. I took a pair of measurements at the property line across the the right of
way. Those are shown in also red as well. And we had values of 62 with the windows open. And then when we closed the windows, I measured levels that were 53 or lower. Um the 53 or lower is important. If I can direct your
attention to the bottom left corner of the exhibit, uh the current ambient which is dominated by distant traffic uh from interstate uh currently is in the 52 to 57 dB range. Right? It's a range because uh depending on a truck pass by
or traffic surges or the like um you could have any sort of of of variability in the ambient. that that number there being in the low to mid-50s aligns with what the um the opposition's expert testified to as well. I I believe he
said it was around 52 53. So when I look at the closed windows, we were having challenges uh identifying the music playing indoors. And that makes sense that it's a solid construction with windows closed. You're providing the sound very little ability
to uh reach the outdoors. That was kind of like the easiest of of the series of tests. I think uh there hasn't really been much a discussion in the questions and and narrative here of concern over over indoor events. So, we then pivoted to the exterior events. So,
the next one that we looked at was what we're going to call uh the small courtyard. It's located in the rear in the al cove between where the two main buildings are. And that's going to be represented by a series of green circles. And so if you can look at the U circle that has the level of 85 in it,
that's the center of what would be considered our our small courtyard or secondary courtyard. And then to the right of that circle, you see a an arrow that is pointing west. That is where we set up uh two 15 in speakers on tripods
uh with a um music playing and measuring 85 was the center of what um without a more technical term the the dance floor if you will the the hot spot of of the event. We then did a series of other measurements. So backing off we moved to
the edge of the paved courtyard area measured 76. And then what is unique about this al cove is that it is particularly shielded from northern residences along Prospect. And then that is further highlighted when we went up to the northern property line and we
measured levels of 54 and 56 uh moving along that that property line. Uh those levels then being close down to around where existing ambient is already present. So what what results then um that outdoor noise is audible but it becomes a blend of of ambient traffic
and uh music the the the point of uh where we'll get to the full conclusions of this but the point showing that we're in far below the threshold of the co- limit of 65. The next focus we moved on to the to the main courtyard the primary courtyard which is located nestled between all the
buildings. We did a set up with our loudspeaker duo uh set in the southernmost part portion of the courtyard. This is the blue series of results and circles. Uh you'll see the blue triangle on the near the bottom of the page next to a circle that is 86. So
we had the speaker set in what I would consider a worst case scenario pointing north creating this tunnel that was uh testified to by the the other noise consultant. 86 on our sound proper around this the
vicinity of the speakers 65 at the boundary of where the courtyard ends and the Pearl Street sorry per street begins and then when we get up to the property line of the other side of the rightway uh measuring levels of 58 at that distance.
Lastly, we looked at the house system that's currently installed within the courtyard, and that's comprised of two um wall-mounted loudspeakers that are placed roughly 15 ft high. Um I believe one of the exhibits from opposition uh showed those from a distance, but we
turned those on. Um we again raised the volume of that house system. Um measured uh 80 dB around the vicinity of of the court. Now, that seems to be the lowest level, but because of the speakers, how they were
uh spread out apart and how they're higher up, um that is this is actually one of the loudest scenarios that we ended up documenting, and that's because it has bigger coverage and allows for um a a wider spread of of event area. Nonetheless, by the time we
get up to the northern property line, um we're looking at levels of 62. So, in conclusion, we showed that with a setup that not only was the the the applicant more than happy with um I found them to be more than representable for what
would be considered a worst case event, uh and all of our measurements show that levels were below the the 65 dB threshold. And in fact, most of the measurements blended in uh much more readily with the existing ambient in the area. Uh which only just helps to uh
assure the the conformity of of this application with the area. Uh and compliance with uh the applicable noise codes uh obviously allows me to conclude that there's no negative impact from an outdoor event with with music. Uh just to put everything into perspective
>> amplified music >> with the correct with the amplified music. Um just to put everything in into perspective, this is uh these test results are evident of an event. Uh we've heard a lot large amount of testimony about how events are a small
portion of the greater hole. And so this is not a condition that would be carried out throughout the hours of operation um every day of the week. Uh in fact when I arrived the the outdoor loudspeakers which are shown in orange which we discussed last were being used to to
provide background music which was uh able to be talked over uh just providing an ambiance. So our demonstration here is to show what an event could be to satisfy the the the questions and um the
unknown of what's been discussed for for multiple meetings. >> Okay. So that's the the bulk of what we have prepared. So uh if there's any questions, I'd be happy to answer them. >> Sure. What about like some DJ or band brings in their own amplifiers. How do
you measure that? >> Sure. So we certainly can understand that there will be a way that we can break things. Uh that was not the purpose of of our our effort here. Our effort here was to show that it is more than capable of being conforming. Um we
we are certainly I I think as as far as an application goes there the noise code is in in perpetuity. So the idea would be that while events might vary that the owner is responsible to make sure that they're they're conforming with being a
good neighbor. But as as an acoustic engineer, you know, the problems of trying to get somebody who's qualified to come in at 10:30 at night and measure the noise level. >> Uh there there's >> Sure. Understood. Well, uh I don't think
I think that as events start here, there will certainly be more of a a hands-on and and a need to be educated. Um, in my memo of February, I had discussed with the applicant, they own a sound level meter. It it behooves them to be
intimate with the events that are going to happen before they happen to know what the extent of it is. So, we're discussing a lot of administrative controls. I mean, the the engineering result is turn the volume down to be an appropriate level. And what we've shown here is that not only are we able to
have that be achievable, but it actually results in in a more than acceptable event experience. In fact, we in my discussions during the survey, we decided this is probably on the high end. This is, you know, the the idea would be that when you have an event,
you can have a music area, but you also then require areas where you can have conversations. And so, the idea isn't to have a a raging party, but rather being able to accommodate the variety of of of uh uh areas that that guests would seek
out when they come to a space like this. >> Okay. Any other questions from board members? >> I have a question. >> Okay. >> So, why are we talking about amplified music in the courtyard when the testimony was that there wouldn't be any?
>> At the time, prior to engaging the acoustic expert witness, the thought was that it would never meet the noise regulations, the title 7 noise regulations at the property line. Since engaging Mueller's office and having performed his survey, uh, it conformed
outside. So the applicant is is amending that request um to have amplified music not just indoors for indoor events but for outdoor events too in the courtyard areas on the property. Um which will you know again be subject to board scrutiny
for consideration of shut off time. But this meets the standard the noise standard going up to 10 p.m. for outdoor events with amplified music at not a shy level of the volume knob. >> Yeah. Except, you know, you're a use variance, right? In a zone where this
isn't permitted to begin with. So, you know, up until now >> Mhm. >> the testimony has been no amplified music, no microphones, just you know, James Taylor showing up playing a folk guitar, right? And and you know, now
you're saying now you're saying that's not the case. Is that what I'm hearing? Uh well, listen, the the testimony provided tonight shows that this uh would be within the the rights of of the property and it's regardless of use
because if we were approved for uh condominiums that were discussed, you know, that there would be noise sources produced by by that and they would also uh apply to regulation and commercial use here would also have the same limits
applied to. But this is an event venue that can have events four nights a week. Whereas if you're in a condominium, you know, somebody will hold a party one night and you might have another party six months later or some, you know, but they're not going to be every night and
they're not going to be like three on a weekend. Un understood. Understood. What what we're presenting here is that that this unknown event, >> right, >> has a face, has a name, and the levels are nowhere as near as draconian as what has been talked about for the past nine
months. >> And I think the the the silver lining potentially to not conclude this evening as as difficult as that going to be for the applicant to accept is the fact that we've heard the board's thoughts on a few different items tonight that the applicant has um evolved with their
positions on. So, you know, right now what is on the table from the applicant's side as a request is that outdoor events be permitted to have amplified sound because it will comply with the code. We understand that that's right for board consideration given the variance. We heard about that in the
food truck context as well as the cooking context. Uh the applicants are here. Um they're paying attention to this. So, we'll be discussing this between now and the next public hearing. But right now, yes, that that is the updated request, Mr. Olen, Mr. chairman that based upon this survey the
applicant would like outdoor events to be able to have amplified music. >> Okay. Uh before we get any any other questions from board members? >> No. >> Any questions from the professionals? >> Any questions from public? Yes.
>> So, Mr. Miller, I know you're not here as a planner. you're here as an acoustics expert, but the bottom line of what you're saying is that it'll be up to the neighbors if they're bothered by sound to have to call somebody, the police, somebody that that'll be there.
Correct. >> Uh if I am to reorder your question in a way that I understand it, um you're saying that uh compliance with the code still may result in complaints. Is that >> I'm saying there may not even be compliance with the code. You're just
assuming there will be correct. >> Uh, can we start over? I'm sorry. >> Sure. Let's start over. >> I I don't understand what you're asking. >> Okay. You're here as an engineer. >> Yeah. As a noise expert. Sure. >> Okay. As your as the problem that you posed yourself as a noise expert. Have
you assumed that the applicant will be compliant with noise regulations? >> I provided testimony tonight that shows that it is more than able to be accomplished. >> But that's not what I asked you. I asked you if you are assuming as part of your acoustic exercise that the applicant will comply with noise regulations.
>> Mr. Chairman, I don't think he's making any assumption on what the applicant will and won't do. >> I think I think we >> his You're asking does his testimony ensure that the applicant will comply with the um the sound levels at which he tested? >> I'm not asking him that because he
certainly can't answer that, right? I'm saying his his testimony seems to be presuming >> that the applicant will comply. >> Well, the entire applicant team's intent is to comply and that's always been the case. That that's a very, you know, common theme throughout our prosecution,
but I don't know how Mr. Mueller answers the question. I I candidly don't understand the question either. >> Well, I didn't ask you. I asked him. >> We're two for two, though, without understanding, sir. >> Okay, let's ask the question again and let's get it. See if we can answer or somebody can answer. I I prefaced it by saying, Mr. Muller, I know you're not
here as a planner. I realize that, >> but what I was saying that what you are saying is that neighbors who may have a sound problem, it'll be on them to go to the police or someone else one night a week or two night a week or three night a week and otherwise they're just
relying on the good graces of the applicant. Is that right? >> Can I ask that question to be clarified? neighbors who have a problem. Are we assuming now in this since we're in the world of assumptions, are we assuming that the noise exceeds the allowable volume? >> Well, I think I think he's saying if the neighbors perceive that the noise is
over the uh limits as testified to um that a burden would be upon the neighbors to go and seek enforcement at whatever time of day or night this event is being held. >> I think it goes without saying if you feel slighted by the system, the onus is on you to go and avail yourself of the
rewards of justice under that system. whether or not noise compliance is met or not. >> All right, I'll I'll take that answer for Mr. Cali. That's good enough for me. Now then, Mr. Muller, I have one other question for you. Were Were you here when Eric Vieira testified as he was walking around with his video camera?
>> Yes. >> And um he testified that from a distance he could hear the DJ, he could hear speech, he could hear music. Uh are are you questioning that testimony? Here's
my comments on the testimony. I was not there when the event happened, so I was listening to the testimony as everyone else was. Um, audibility and sound level are related but not necessarily correlatable. So, the
audability of music at a distance, um, I surely would support that. uh watching the the cell phone video with a microphone that's designed to be highly directive and also uh to block out background sound levels uh did not uh
persuade me of of what the video was trying to infer. What we've tried to do is take all those unknowns out of the equation and show that when I was there physically testing music of levels that are presented in my exhibit here that
they were below the limit. >> Okay. Well, let me ask you this. What will may well be my final question maybe, which is you you as an expert witness, I mean you you can deal with hypothetical questions, correct? >> Sure. >> So, let's say that hypothetically that Mr. Vieira's cell phone video was not
doctorred, that he didn't adjust the volume, that it was accurate, and that it portrayed exactly what he said it portrayed. How do you explain that? >> How do I explain that? >> Yeah, that that level of noise and as he's walking around, how do you explain it?
>> Sure. So, I guess to to I'll put out there as my a professional opinion. Um, it it appears that I we have a a a tenant in the building or, you know, the owners of the building that were not
fully aware of of all the ins and outs. And so, uh, maybe overzealous during a kickoff party to have an event that may or may not have been allowed to happen. Uh, obviously that that goes to to support what I'm saying here. Um, but
that doesn't mean that this can't be corrected. It doesn't mean that we can't have a successful project. It doesn't mean that we can't have outdoor amplified music that fully conforms with applicable ordinances. >> That's fine. You've explained yourself quite well. Thank you. >> Okay. >> Any other members of the public with
questions? Seeing none, hearing none, close the public portion. >> So, I just No, he's representative. I just had want to go back to what was the starting volume when you did these tests. >> Uh so depending on the pair of measurements, we have a different
starting volume. So if we correlate the colored circles, that's how they match up. So when we did the inside measurement, we had levels of 92 and then the corresponding outdoor measurement again at the property line. Uh for the small courtyard, we had
measurements of 85 in the middle of the the courtyard area. Okay. So, what if it was 92 when the outside? >> Sure. So, going back to our previous discussion, could we break the system? Absolutely. But that's like designing a bridge for a certain number of elephants and saying, "How many elephants will it
fail?" >> So, who oversees that for the outdoor courtyard that says, "Hey, you can't go over 96 90 or 66." >> As a consultant with decades of experience, the only thing I can sell is is education. And I think that's the continued process here. It's an
education on on what you're legally allowed to do and not do from a zoning ordinance, from building a fence, from taking out permits, from from noise contributions. So, I I think that there has been a lot of education that has occurred so far uh that will only promote success here um now that
everyone is aware of what the parameters are. U can can I say that it will never exceed? No. Um but going back to uh the the cross-examine question about what happens when the people call that the triggers what the noise code is
intending to do and that's to be a response tool. So there can be a complaint there would be an investigation if the level is under the complaint's unfounded and there's no violation given. If the level is higher than allowed then that becomes a violation. >> Right. So you expect the police to show up with with a monitor to be able to
test that sound. Th those are the laws that are in place and whether or not the the municipality has resources. We have county uh resources that are available and the state resources available. I understand what I'm saying is factual and yet also um complicated. But every application comes forward and has to
comply with litter and lighting and your zoning officials are burdened to some degree on it. The idea would be that once everything is operating smoothly that that's no longer a day-to-day. >> How long is that going to take? Uh, I mean, how many how many times do they get to do it wrong before they're going to start doing it right?
>> I think that that happens, then you will certainly be the first to know. I also think that that dramatically changes any future uh requests upon the application. Um, this is just the way. >> And are you saying that they want to have outdoor music until 10 p.m.?
>> I'm saying that's what the code would allow. >> Okay. But what do they want? Because before they didn't want it at all and now I'm not sure what they want. We we've discussed amplified music outdoors um ceasing at 9:00 p.m.
>> internally as a team. The >> applicant >> so just I just want I apolog I just Mr. Schustster I just want to ask Mr. Oler because we talk about the noise ordinance. This comes up in other situations where the township the township can't control over and above
the noise ordinance. However, once again, the applicant is asking to do something here that they are not permitted to do under the code and the board can impose conditions. So, this isn't a case where this is not a site
that's zoned for outdoor concerts or something like that. You know what I mean? So, in that case, obviously, the noise ordinance applies. >> But I, you know, am I correct here that the board can still the noise ordinance would govern if you if the board were to let this go? >> If the board There's a lot of different
there's a lot of there's a lot of uh space between >> between what the board can permit here and what the noise ordinance permit. >> Yeah. If the board says you can have amplified music, then the noise ordinance applies to that music, right? >> But they can also condition it to say no
amplified music, no microphones outside, >> right? Certainly there would be a lot of things in between such as uh x number of events or that I mean I've seen all kinds of things in place to for okay >> we're talking about extremes and I guess
>> no I know that's why I say a lot of space that's what I meant what I meant sorry >> try to take a different approach with a question >> for the expert >> uh to try to help quantify this if if it's something we want to quantify
>> the the sound system that you use to do the testing inside the building to generate 92 >> and outside in the courtyard at 86. >> Two different systems. >> Two different systems. >> Correct. >> Those systems do they have manufacturer
specifications that indicate a decel maximum decibel generated by how how is that measured by a manufacturer? Um, usually it's by a speaker wattage and then they do provide an output associated with with that >> and that would be like an output decibel
level for an interior environment is a controlled environment and an exterior out outside >> it could be converted to be that. Yes. If outdoor music was to be considered by the board under the D1 use variance,
could the specifications of the speaker systems be administratively controlled in contracts with the vendors to ensure that the vendor brings
only equipment that would meet the the testimony that's been provided. Yes. Uh that might be like for example indoors becomes a lot more straightforward because we are an existing house system and so you would
uh as a as an owner you would say that a a new or a DJ would plug into their system not not have >> and that would be the fixed control indoors >> for for indoors. Yes. the exterior. Could that also be accomplished or would it be more appropriate for the vendor to
be able to bring their equipment? >> Um, you could do something similar which would require installing more equipment. I in my February letter, my offering to counter that would be that whatever setup was brought in because of the variables there that that could be be placed on the property line by the
applicant in order to to calibrate it to be appropriate >> controlled testing prior to the event. Cor >> correct >> to confirm compliance with the conditions of an approval. >> Yes. >> And to to add to that, uh Joe and Mr. Chairman, back to a question of yours,
what if the DJ comes in with different equipment or something? I think that was your opinion, Mr. Chairman. >> The the Bruins confirmed for me that they like controlling the other aspects of the facility. Um they will agree to control the sound systems. Um whatever
is permitted. If it's not if it's beyond the indoor space, we're talking about outdoor space amplification. I know there's some board questions on that, but these systems that are permitted to be there, they will be under control by ownership, not a third party vendor, a DJ or whatever the case may be. >> So in part, they could control it by keeping the windows closed. Right.
That's absolutely right. >> Okay. So for inside it's easy, >> but you know the outside here would you at time of a final inspection for CO a sound test that confirms the equipment
that they're proposing is in compliance. >> I'll look back. Absolutely. and just trying to give framework in case the board wants to consider this when we come back for continuation hearing and we deliberate. >> Okay.
>> So really what you're saying is the vendor, you know, whoever the musician is wouldn't bring his own amplifier. You're going to have some kind of muffled amplifier station, right? >> No. Is that like the way cars can't go fast, right? regulator. >> The house system offers the benefit of
having a limiter. It also has the ability of setting up a distributed network. Um, I think what happens in most events is that you have two racks of speakers and you just blast everyone. So, a distributed sound system would offer more uniform coverage without having to maximize the volume. So, there
are a lot of different things technically that can be explored in a in a house system. >> Look, we've all been to concerts where your ears are ringing for 2 days after, right? and and you know we don't want that here. >> Correct. Yeah. And uh the levels that we're testing were were nowhere's near
that. I I found that the dance floor or the event area was higher than desirable for myself, but again we resulted in positive uh results at the property line. >> And look, I know that the board knows this property. You heard extensive testimony or whether it has value or not
about the the sum spent on improving the site. The applicant's not interested in it being animal house. That's their interest is very much aligned with yours in that regard. They are interested in music. Uh >> well, except you know the video we saw was pretty compelling, right? You you get to the tunnel, I'll call it, and it
got much louder. Yeah. >> Like just that one step that tunnel amplified just by itself. So, um you know, I I think it's a valid concern that the neighbors have. >> Absolutely. Right. >> So, let's uh move on to when are we
going to get this back on the board? We have >> two weeks while it's fresh in everybody's mind. >> We have an application on the 27th that has probably 40 objectors out there. >> You wouldn't want to stay here. >> Yeah.
>> They would join. Yeah. >> And I have to recuse myself on that. >> So be short of member as well. Okay. >> Well, on that not application >> on that one, right? Right. >> Because it's right up the street. Oh yeah yeah yeah.
>> So far I've got one on the May 18th. >> Pardon? >> So far we've only got one matter on May 18th. >> May 18th. >> Yeah. >> That's sorry. Yeah, because we have our April 27th we have the contestant matter, >> right?
>> And then the next meeting will be May 18th and I only have one matter so far. >> And what kind of matter is that? Just a >> residential small project. >> Okay. So quick. >> So quick. Hopefully. >> I'm not going to give that qualifier. >> Uh May 18th.
>> May 18th. >> Does that work for you? >> It it does. Uh Mr. Roller and that would be simply for discussion of conditions and deliberations. I I think >> it would be like uh it would have to include statements from public members of public. any statement you want to
make uh discussions about conditions board consideration vote >> I just want to confirm that for the applicant sake that the objector's case and chief has concluded which he's already indicated tonight if he doesn't say it again Mars has as well for the dialogue of of conditions
potentially >> well I don't think we did public comments we didn't do public comments >> each teams if you will case >> witnesses are completed on both sides we have to do public comment, closing if there's a closing statement and then
deliberation. >> Right. >> Agreed. >> Yes, sir. >> Okay. So, it's May 18th. >> May 18th. >> Okay. So, for purposes of the um of the public, this meeting is going to conclude now. It will continue on May
18th in this room at 7 p.m. without further notice from the applicant. >> Okay. >> Question. Any further business? Do we have uh that monthly report? >> I didn't do it for the special. I was
planning on doing that the next meeting. >> Okay, great. >> All right. Any other business? >> If not, I'll entertain a motion to adjurnn. Motion. >> Second. All in favor? I. Any opposed?
Meeting adjourned.