##VIDEO ID:NtcmtQJ-mBM## e e e e e e e e e e e e e e e e e e e e e e a pledge of allegiance a moment of silence and our prayer I pledge allegiance to the FL United States America to the rep for it stands one nation under God indivisible with liberty and justice for all in this chamber we stand for a moment to remember those who are protecting our freedoms both here and abroad for our First Responders for everyone we wish peace moment of silence our prayer Mr Pas gidy dear Lord bless the servants in the ministry of public affairs who serve thee in this chamber give us quiet minds and hearts that we may hear your voice help us to know when to speak when to be silent give us strength to oppose the wrong and uphold the right grant that we have a good conscience and a soul at peace with thee and with one another amen amen please be seated call let the record reflect that councilman auli is absent councilwoman dearo present councilman dama here councilman Desai councilman Garcia here let the record reflect that councilman Murphy is absent councilman PES gidy here Council vice president Dr Greenberg belli here council president soar here this meeting is being held in conformance with the open public meetings act notice has been given to the official newspapers of the township on November 7th 2024 and has been posted in public places next regularly regularly scheduled open public meeting of the township Council will be held on Monday November 18 2024 at 7:30 p.m. we beginning with an executive session I I listed that in the event because we obviously had had a chance to talk if any council member felt that they needed to go in the executive session have any questions uh of me I can explain before we start that's I just put it there for thank you thank you anyone have any concerns no okay okay and we'll proceed um just going to go back um sort of give um what had happened procedural history obviously um the uh this is this came about as a result of a lawsuit that was filed um by the applicant at dintino LLC um in connection with a um hearing that was held by the uh Council a few years ago um ultimately the matter went um to Superior Court actually in hunon County because of the conflicts in um there's conflict in middlex County then we sent to Somerset County Somerset County didn't have enough judges so they sent hundred County and finally judge Menan uh had the matter um back over the summer uh there was or back in May there was a oral argument relative to the appeal that was filed by the applicant um regarding this uh council's decision to reverse the zoning board's uh approval uh uh or actually Grant of a use variance uh for site that's at at issue um again or argument was heard back in uh May and then July of this past year judge Menan render decision in which he basically re he remanded the matter back to council um for purposes of making findings of fact and conclusions um just get a little bit complicated because some of the members who were present at the time the uh decision was rendered are either no longer on Council U mayor walker uh and or um we have new members who were not members back then um the issue isn't clear relative to who should participate or not participate but typically I would say that uh for instance when there's a planning board matter and new members come on uh those members or zoning board ma matter those members can continue uh to participate assuming that they reviewed the transcripts uh that preceded the hearing and they were brought up the speed by um you know reading the the uh the record uh in this instance was the record of the zoning Board of appeal and then the uh and then the record that was developed in front of the zoning board um but one important thing here is the board's decision to reverse was not was not reversed by the judge so that stays in place uh again we're here for the purposes purpose of making findings of fact and conclusions uh based upon the record because the judge basically felt and we were all given a copy of his decision uh that there was not enough information there uh and total to determine whether or not the council acted arbitrarily capriciously which is the standard for a court to review um and I know um Jilla Caro and uh Karen Sai were not um didn't participate like Joe was not on Council last time and Karen didn't participate in either one and um again to the extent that you're going to participate you can the decision doesn't get reversed um the only thing I would ask in have to certify that you did review the transcript from the zoning board and you reviewed the record uh in anticipation tonight's hearing you just yes yes all right yes that's fine same thing I just want to make sure so what I'm going to do I think what I'll do is I'll start sort of give a a uh little bit of what I've talked about and gives us basically review of the facts and procedural history and then once we get there uh I think I I think the easiest thing to do is sort of take it step by step on the analysis that's required for use variant um because the fact that not something that you are accustomed to doing uh it's not it's a sort of a little it's a different program um in that uh typically governing bodies obviously do not do a review for youth variances zoning boards to so um some of you may or may not have experience most most many of you may not with respect to use variants so it's a little bit difficult but I think we just want to get it right and we work through the process just Bay away background Ed Edward tusino LLC if I talk too fast let me know Dev I I tend to I to get yelled at by the court reporters in court all the time applied to the oldridge township Zoning Board of adjustment for a use variance pursuant to njsa 40 col 55 d-71 and a density variance pursuant to 40 colon 55d 70 D5 and connects with the property at 121 Route 34 Oldbridge New Jersey identified as block 4187 lot 311 on the tax map the application number was 12-21 Z the subject property is located in the Township's og1 office General zoning District in the application the plaintiff or the applicant proposed constructing a mixed juice building with non-medical office use on the first floor and four residential apartments on the second floor comprised of three one-bedroom units and one two-bedroom unit not withstanding that residential uses multif family uses are not permitted in the og1 zone and because the plst project included the non-permitted residential use it exceeded the maximum dwelling gross area for the Zone therefore necessitating the density variance zoning board conducted a public hearing on July 15 2021 and as part of that hearing the zoning board was provided with report rep for consideration uh the T of vge Land Development application received May 21 2021 a community impact statement prepared by mcdunn and Ray dated March 21 March 2021 rather a traffic impact analysis prepared by bright engineering LLC the November 4 2020 a onepage site plan entitled use variant sketch prepared by Center State Engineering dated January 28 8 2021 a five-page architectural plan prepared by Michael Tess Architects dated May 3221 a boundary and topographic survey for the subject property prepared by William CTS dated March 10th 2028 now one thing that I want to bring and it was I highlighted previously as part of the Court's ruling if you recall it was determined that the township professionals were not sworn in uh meaning the planner and uh the engineer and consequently as result of that Court determined that this Council in rendering its decision is not permitted to consider the any testimony by either Venus want as part of the Zoning Board hearing or the engineer Rees dery or to consider the memorandums that they prepared as part of that application so that was highlighted and we had talked about that before the ultimately the uh hearing was held the zoning board adopted a resolution on October 7th 2021 and um by which they zoning were granted the use variance and the density uh density variance pursuant to njsa 40 colon 55d 17A and Township Code section 22508 and appe appe was filed on October 15 2021 in the office of municipal clerk by um Mr Williams Sarah on December 15 2021 municipal clerk served a notice of meeting to be held by the uh Council and to for purposes of reviewing the zoning board record on December 28th 2021 pursuant to the SE the statutory and code section and a meeting to through the record and hear arguments of council was held by this Council on January 11 2022 um and at that time Council we had the hearing considered the uh the record including the uh verbatim record the zoning board you heard argument they heard arguments of council um from both the appellant uh attorney and the attorney for the applicant and again if you recall it's a denovo review meeting this board is reviewing the application and the hearing and the record uh on a record for and to make its own decision ultimately uh this board um adopted a resolution on um decided determined to uh reverse the uh zoning board's Grant of use variance pursuant to njsa 40 col 55d 70 D1 and then it moralized its decision by adoption of resolution number 22-42 on January 20 2022 uh following the adoption of the resolution the applicant on February 15 2022 filed a perogative red action challenge the council's decision arguing essentially that the the council acted arbitrarily unreasonable and cacious this is a standard that the court uses to review board's action and that the council failed to properly articulate his findings of fact and legal conclusions as are required to be included in the council's resolution the court as I said heard oral argument uh and on um July 3 2024 it issued an order and opinion and in which the court remanded the matter back to the township Council this is a quote from the order to make findings of fact and conclusions sufficient to to permit this court to to determine the basis for the council's decision Council shemake said findings and conclusions upon the record before the Zoning Board of adjustment from July 15 2021 then in making said findings in conclusion the township Council shall be guided by that portion of the Court's July 3 2024 opinion pertaining to the unsworn testimony of the township planner so now as we said we're back before this Council for purposes of making those findings and conclusions um now so what's being required of council now given the Court's decision council's required to make detailed findings of fact and conclusions based on the zoning board record sufficient enough providing detailed analysis for the court to determine the basis for the council's decision to that will ultimately be included in a resolution again uh and that will be adopted after conclusion of this hearing um as if I noted before um the last vote was a 60 vote uh of the six who were present then that included mayor Walker since mayor Walker is now mayor she cannot participate but five of the six uh remain on Council who voted and those were um councilman dama Council Garcia councilwoman Greenberg belly councilman pisti and councilman council president so are now under the law Council must review the zon zoning board's action based on the record established before the zoning board and reach its own decision as I said you guys reach your decision that won't be changed it's a matter of the findings of the fact and conclusions of law in rendering its decision a governing body is required to make detailed findings of facts and conclusions of law findings and conclusions must be supported by the record the governing body's decision should clearly articulate the factual findings that support the statutory criteria for the case um a council's resolution rejecting a zoning board's decision to granted variance again must contain the detailed findings of fact based on the record of the zoning board the findings must support the legal conclusions that are made simply stating a conclusion of representing or repeating statutory language is not sufficient the resolution must clearly lay out specific findings and explain how they lead to the council's decision to reject the zoning board's determination findings which are based upon the proof submitted at the zoning Board hearing must be sufficient to satisfy of reviewing court that the applicant variance request was analyzed in accordance with the statute and in light of the municipality's master plan and zoning ordinance resolution must demonstrate that the master plan and zoning ordinance were analyzed and the determination was made whether the governing body's prohibition of the proposed use is incompatible with the grant of the variance variance is denied resolution must contain a statement of specific findings of fact once the board reached the conclusion that the statutory criteria for a variance were not satisfied when the board considers conflicting expert testimony as you review the record remember in this instance um the primary testimony came from the planner from the applicant cannot consider uh Venus Swan's testimony so there really wouldn't be any conflicting testimony as that in that regard you should be aware that the council is not required to accept an expert's opinion governing body like the zoning board need not accept an expert's opinion zoning boards may choose which Witnesses including expert witnesses to believe to the extent Council chooses to reject the testimony of an expert or claim it was not credible there should be a statement as to why certain testimon is rejected Beyond Bare allegations or unsubstantiated facts so I think uh at this point so it was the the analysis that needs to be done uh is relative to um the grant of the use variance as I said the D1 variance is what council did um uh at that time so what I would like to do now is um start out with background on the uh the property itself as we delve into the record and then we'll get to the point where you'll have to do the analysis on the grant of the use variants I recite the law for you to consider and then we'll go each step okay so I think um these are facts based upon the record the property is located as I said at 121 route34 Oldbridge New Jersey is identified as block 4187 lot 311 the town's tax map and it's located in the Township's og1 general office zoning District or the og1 Zone the lot is 1.48 4 Acres it's approximately 125 ft wide and 650 ft deep and that comes from the zoning board transcript there's an existing office building on the subduct property and a large conservation easement that compasses approximately 23ds of the rare of the property the site is located on the north side of Route 34 between Rachel Court in Old Mill Road to the west of the property is ches Quake fire Squad and an elementary school to the east is ches Quake first aid Squad to the South across Route 34 is a Comm are commercial businesses and Scattered residents along Route 34 now if in reviewing the application the applicant proposed uh constructing a mixed juice building with non-med offices on the first floor as I said and four residential apartments on the second second floor comprised of three one-bedroom units and one two-bedroom unit the site is access from Route 34 by single driveway the proposed new development is scheduled to have 16 parking spaces in front of the building including two handicap spaces and add and additional 17 parking spaces to the rear of the proposed new building now if you may recall this hearing was bifurcated right so they didn't get into the site plan uh the first thing that the zoning board was only there to consider was whether or not uh the applicant should be given to use variant so some of the things that uh a board would considering gr granting a site plan were not necessarily discussed though there was some of that discussed as part of the record including part of the application now I stated above the proposed mixed juice residential Department building is located in the Township's og1 zoning District and while the office use is permitted residential in this instance multif Family Apartments are not permitted in the OG Zone this necessitated a use variance and because the PLS proposed project also included um a non-permitted residential use it exceeded the maximum dwelling gross area for the zone and again that required a density variance the applicant himself s relief pursuant to njsa 40 colon 55 D- 70D and specifically the D1 use varience because pl's proposed mixed use building with an office on the first floor in the four Apartments is not permitted in the Township's og1 zoning District as residential uses are not permitted in that zone and also they saw as I said sought the D5 density variance because the project exceeded the maximum dwelling gross area for the zone now first thing is the D1 variance and the standards that you all must consider in deciding whether or not to Grant a D1 variance in this instance and in the analysis as we've said before uh it consists of a positive and a negative criteria so the first thing that you're going to consider is the positive criteria of whether or not and again it's the applicant's burden to proof applicant has to has to show by uh by a preponderance of the evidence meaning that little more than not uh to determine based upon the evidence presented whether or not they met that make PR criteria I think again we should should take the council should take this in Step so the first thing you're going to be focusing on is the positive criteria zoning board had the power to Grant a D1 variance to permit non permitted uses and or non-permitted principle structures puru pursuant to 40 col 55 d-71 and this is in quotes under the statute in particular cases and for special reasons this is also known as the positive criteria of a D1 variance New Jersey Supreme Court has held that the promotion of the general welfare is the zoning purpose that most clearly amplifies the meaning of special reasons and the case that most people that people site and if you recall during the or argument was the medich vers BPR case you heard the term people usually referred to as the medi case and that's at 107 nj1 the court our courts have held that certain uses are deemed inherently beneficial which means by definition use per se promotes the general welfare benefits of the general welfare from typical non- inherently beneficial uses such as what we have here the the multif family residential use is not inherently beneficial um so that the general welfare derived not from the uses themselves but from the development of a site in the community that is particularly suited for the very use proposed thus in in in an non inherently beneficial use application the standard Council must employ to determine whether special reasons have been proven is whether the proposed use will promote some purpose of the municipal land use law law and as to the general welfare purpose whether the development of the property is particularly suited for the very use proposed so it's a two-prong analysis right there's the the the they have to meet uh special uh purpose of the municipal land use law and then and in that instance that's under 40 colon 55d Das 55d d to um where they list there's nine or 10 uh per um reasons and then the other part of that prong is what's referred to as the particularly suited for the uh use proposed or as the courts have said meeting the general welfare purpose so what is that issue in this case is whether the granting of the D1 variants will promote some purpose of the municipal annus law and as to the General Welfare purpose whether the development of the property is particularly suited for the proposed use that being a mixed office apartment residential as being proposed and in in making the analysis the the New Jersey Supreme Court has held that proof that a site is particularly suited for proposed use does not require a demonstration that there are no other viable locations for the use in the Comm in the area or in Oldbridge in this instance as such the applicant does not have to prove that the property is the only site which is particularly suited for the proposed mixed office apartment residential use or that the property is the only site which is particularly suited uh for the proposed office apartment use what the applicant has to prove is that the property is particularly suited is for the proposed office mixed use uh again not it's not that it's the only site but that this particular site that this site is particularly suited and give the reasons why the inquiry Council must make an answer is whether in the context of the specific property at issue the site is particularly well suited for the proposed mixed use in spite of the fact that multif family dwelling in this instance to four Apartments is not permitted in the zone and in the context of a of the specific property the court uh in the the price case explained that particular suitability means that strict adherence to the established zoning requirements would be less beneficial to the general welfare so that if in fact you could only build the office space rather than the office space with the apartments that would be less beneficial to the general welfare that's what you're the focus finally the burden of proving the right to relief sought in this application rests all time on the applicant as I said if the applicant does not meet his burden this is a quote from um uh Cox which is a which is A Treatise um the board board in this instance Council has no alternative but to deny the application significantly an applicant is required to prove entitlement to approval at the time of the hearing the application so again uh and we'll talk about the negative criteria which is the other side we're focusing now on the positive criteria with the exception of the negative criteria of a D1 variance Council must find Satisfied by an enhanced quality proof this um the level proof that the applicant must meet and Council must find on all issues um sorry with with the exception of the negative criteria the level of proof uh that the applicant must meet and Council must find on all the issues except except one the negative is the prance of the evidence standards which I said which means that the applicant must prove and councel Council must find is more likely than not that each element of the required relief has been proven this application the applicant is required to meet his burden approving the granting of the D1 variants will again will promote the purposes of the municipal landy's law and as to the general welfare purpose purpose the applicant is required to prove that the property is particularly suited for the use proposed that being the office with the residential component so I I think um that we at this point it may be better to stay focused on the positive criteria before we get into the negative criteria um and take it each step of each step of the uh of the way and when and again when making those uh having the discussion you know have to make in fact based upon the record uh that that's presented uh which again includes the testimony uh of the of the primarily the planner but again there may be other instances uh where information was provided uh by other Witnesses uh who uh testified um at the hearing so anybody want to start anybody have any questions I have one question um when it do we have to give you specific um verbage from the transcripts that were typically yeah typically you you go to the to in the zoning board not the not the council you go back to the Zoning Board hearing so right you would you would go back to the zoning board um transcript um you can consider the testimony there the record also included reports prepared by the applicants experts those can be relied upon because uh they were sworn in they can be used and then the application itself which is one of the documents I think you all were given uh so any of that stuff uh but uh typically yeah you'll go back to the transcript and and point to th those parts of the record relative to uh whether or not the U you know the criteria again the determination was that that the use Fair wasn't granted uh so now you have to what your the focus is is to show why the uh applicant failed to meet the positive criteria initially again there's the negative criteria which we haven't discussed yet that's the second side and then the positive criteria there's the two prong there's the uh special purposes and then there's the uh General Welfare or the site suitability analysis and and I think if you look at the record when the when the planner testified he did the site suitability analysis first and then he did the uh the purpose is second as part of his analysis that that's the way it came that's way it was presented Council I think you said lot of things which may be not clear to me right and I raised this question before and I'm looking looking at the William SAS October 15 2021 complaint in that he says the application was eventually a approved after the township planner and engineer recommended the board not to approve I went through this whole book of transcript and I didn't see anywhere there is a no or yes and that is my experience on zoning board 15 years planner it may be before vaa we had Sam Rizo an engineer before Nicole we had englishes and other but they never said any time they just guide you what the law is and leave up to the board to decide and I went through the transcript and I didn't see any damaging question from any board member to the applicant or applicant attorney matter of fact our consultant Mr Rakesh deri who is a traffic engineer has favored this traffic study also and Miss Savant did not say anything and Nicole is not mentioned in whole transcript by even first name or last name so I just want to be clear how we can rely on somebody's later or complain without proving that the facts of that letter is true or false I believe it was false and this was in my opinion and I'm sorry I'm not going to any individual personal member of the council but this in my opinion was a political job so so Mr Mr I'm going to let me finish no I'm not I'm going to cut you off you can finish but I just so so we're clear this issue about it being a political decision that that was raised before the court and the and the court basically dismissed it it wasn't it was raised wasn't argued by the applicant he abandoned that argument yeah but please show me where it is it's in the the Court's decision it's in the Court's decision right that's where it is in the Court's decision that was raised so so we're we're beyond that the issue again here and we're not going to get sidetracked the issue here is for the council to make findings of fact and conclusion based upon the zoning board record it it's it's a denovo review which again means that this board gets to review the record and make this Council and make its own decision right that's the whole point of this process it gets to make its own decision and it gets to determine as in doing the analysis whether or not there's sufficient evidence um presented by the applicants expert uh to to see if he met the positive criteria and the negative criteria that's what we're doing I understand right so the issues that you raised I understand but those issues those issues are are passed us yeah but Mr Council you should have advised that this estim body of the council that this statement from Mr s is not 100% correct or correct that again those issues and you didn't participate yeah I know it's under the water not right so all the so the all those issues were raised they're raised initially those issues were argued so we're not here to have that discussion what we're here to have is for the council to make findings and conclusions that's what we're here for and the first part we're looking at is the positive criteria Council has already denied the application and overturn the decision of zoning board so again council's here to make findings of fact and and conclusions and we're starting with the Positive criteria as I said there's two prongs to the positive criteria um of a D1 variance and where the applicants uh has ex planning expert for the most part provided testimony so what what council needs to do is to as as that first prong uh to look at to see whether or not I think when he his testimony uh pertain to the uh um site suitability whether or not the property was particularly suited for the proposed mixed juice uh and if you look at you go back to the the transcript and you look at his testimony and the other evidence to see did he did did he make the council didn't agree that he he he he met his burden he didn't meet the preponderance of the evidence but now they need to go back and say you know for for example the planner said this is why the property is particularly Suited we reject that and this is the reason why and that's what that's what we're here for right good okay um I I'm trying I highlighted a lot of things but I didn't know you know I didn't organize it into uh positive and negative so I'm just you bear with me um so what I'm seeing is and this is the from the testimony from how you say his name Mr ello and I believe o he's the planner the he was the applicants planning expert the applicants planning expert um so uh so I'm seeing uh he says it's consistent with the character of the area especially the property that's right across the street so there's minimal to no impact um you know and I I'm assuming that these because I know that there was very specific criteria for positive and negative so I'm I'm trying to find I'm trying yeah so that's um section a page 43 um line around line 12 um and then uh so and then uh show and then the next page page 44 line three um showing of suitability and whether or not this site is particularly suited to accommodate the proposed use right so that that's the beginning that's the beginning of his testimony relative to the positive criteria and that's the first prong like usually you know that that's sort of the second prong but right so now he's he's starting here right this is his testimony relative to uh slight suitability or that that's where it starts and he's you know and he's referring to the I don't know how you pronounce it Medi medich uh the medich case yeah so um he's saying that the proposed I'm trying I'm sorry my apologies uh it's well suited on uh line 14 it's well suited for a structure that will be oriented closer than closer to Route 34 um they aren't in the site plan phase so correct uh he talks about the sidey guard variant I don't really I didn't really um and then he said it's particularly suited because there's sufficient space on the property um so that's another thing on page 45 that's reason number one okay okay that's reason number one why he thinks it's uh particularly suited because there's sufficient space so I would say that that's reason number one or two for the positive criteria right the these are his reasons okay I okay maybe I'm unclear as to what what you're asking so no I'm not so what council had determine the the council reversed the zoning board's decision um because they found that he did not um provide enough evidence or testimony uh to support the grany of the use variants okay so so what council has to do again is to include the findings of fact okay for instance if you go back um where he says right the first when he's doing the uh analysis on the positive criteria the first is showing of suitability right site suitability which again he sort of gets it backwards but we'll start with that because that's where he started and and as they said with respect to the site suitability uh it the courts have said that you look at you know the general reasons so then he says as you as you alluded to uh Mr Caro one of the first things as a planner that I always look to in order to try to determine what makes a particular site particular suited for use is the layout in this instance as I said uh he's saying that the site is narrow and deep and it's and he says it's well suited for structure that will be oriented to Route 34 um and so then he continues as you said on page 45 his first reason for meeting sight suitability is uh that's reason number one why I think as a particular p uh planner of the site is particularly suited because there's sufficient space on the property to accommodate it right that that's his that's his first uh reason then he says and I'm reading from the trans script also as I previously stated and that's on page 44 this is on Route 34 it's a regional Highway that's a second reason when you look to mix uses you know this is one of those locations that we think is appropriate this will allow easy access not just from Route 34 or Route 9 the Garden State Parkway Etc and that's then another reason I think also too uh and he says I guess just what I'd say is reason number three I think it's Unique that's a quote given that it's located next to the firehouse and the first aid station uh so that would be his third reason for why it's uh particularly suited why this use is particularly suited for the site um he says a residential on the other side Route 34 and also to the rear rear but what's proposed here in my opinion is not going to have much in the way of impacting right um so are those are those considered the positive criteria those are those are the reasons that he the planner provided for purposes of justifying that one prong of the positive criteria that the property is particularly suited uh for the use so I said there's two prongs the other one which he provides testimony later on is uh meeting the purposes uh there's various purposes of the ml so the first thing for C since they've denied it is to look at these reasons and to see if they agree or they disagree and they have obviously disagreed and to the extent they disagree they then have to give reasons why they disagree with those particular uh that testimony and his opinion since it's planning testimony and he's the expert sure my question is being that five of us rejected this as far as we're concerned there is no positivity there's nothing positive about this request so so again that's not the standard right the the the the the standard is uh when you do an analysis of the use variance as I described what what courts and what the the the statute says that that there's a there's a there's a positive criteria right that you have to you the reviewing board has to analyze and the negative criteria we didn't get to the negative criteria and and the positive criteria as I explained there's two parts to that what the applicant has to show is that the proposed use because it's looking for uh a use variance meets at least one of the purposes of the municipal land use law right there's there's various purposes that's one prong the second prong as I said is the site suitability component of the positive criteria so so what council has to do is say you've already said no we're reversing the planner said these are the reasons I gave you basically gave three reasons why he found the this particular property to be sight suitable for the proposed mixed juice and what council then has to do is say I disagree for on reason number one because and give the reason why right and then and then you do that analysis for each of the prong and and it ends up being four different prongs two for the positive and two for the negative then because you're not used to this I thought it would be easier to go step by step so Mark can you I just want to make last statement on page 71 the vice chairman of zoning board Mr D is when he's saying yes he for approval his statement while at first I was not in favor because I thought we were going to be resoning as one of our former member would say all the time we all know that fun as looking at this I actually think it is a combination of having housing and Retail work commercial space kind of covers both area and I think it is going to be nice building you know with some improvement on 34 my vote is yes so I want everybody to read the reasoning when they approved it because there was only two no race stop was yes so I think they must have heard testimony from applicants professional and our professional before doing decision but but again this board rejected but this board what I'm trying again and again board should have look at it who is right and what is right right and what is wrong I'm not saying the board just ignore it but I think board May did not was advised by you as a council what was there or board May did not have a time to read all the testimony line by line and I have read line by line because my experience as a zoning shair but we're past that Mr now we understand what you want us to do so Mark what I'd like what I was wondering if you could do is if you could read the the positive criteria maybe for for us I don't know is that what do you mean as far as the testimony or the law I'm just I'm just a little confused as to what because I was trying to give you testimony and you said no that's testimony so I'm not sure what POS I'm just confused so right so so again the the the analysis is council's determined that um they they they've reversed the uh zoning board's decision and in an analysis uh you have to again for the grant of use variance uh show positive criteria negative criteria all right so so what evidence was presented uh by the applicants experts to justify the positive criteria as I said when you look at the planner's testimony would start on page 44 and he begins his analysis of the positive criteria okay he started with the site suitability right and we went through and there are basically those three reasons that he gives so so then so then as a reviewing board because it's called a denovo you know fancy Latin word it's a new review as if as if they were testifying in front of you but you don't you only have the transcript right so now you have to so again the board said no we reject it so now we have to give reasons this board has to give reasons why it rejects it and and May and conclude why he did not make that meet that criteria right yeah no I I get that I just so what exactly are you looking for from the for the positive on again what council has to do is make findings of fact give me facts give the record facts as to why this property is not particularly suited again what he first says is he talks about their sufficient space on the property to accommodate it and then he also says it's located on Route 34 and he also says um because it's located between the firehouse and the and the first aid Squad so are you asking for Council to now debate that like to to it's not a debate no not I don't mean debate that's the wrong word to say why that's not true to to give evidence as to why fact right to give facts okay and find and and then reach the conclusion that the that the site should uh component of the positive criteria was not met uh I just want to make a comment that you know the criteria that their planner uses that there's sufficient space appropriate location it it can accommodate this use that's not enough criteria because you sure you could build whatever and wherever and you can use the same criteria but if specifically it's not allowed then it's moot so you want to talk about positive uh reasons well you can't get to the positive reasons until you establish is it acceptable to build there no no you're missing a point let's get rid of this provision of the code please uh you're missing you're missing the point the applicant has the burden pretend you're to the zoning board the applicant has the burden by preponderance of the evidence on the positive criteria I mean more than than not to to prove um the this two prongs of the positive criteria as I said is is the site particularly suited that's a legal of term right um and then the second part did he did they meet any of the reasons that are proposed by the missal anus law we haven't got to that and so you provide evidence and you're you're you're sitting as a court court weighs the evidence again because this was remanded back Council the the judge didn't reverse the council's decision because he wants the council to put as I said before meat on the bone give him the fact facts why do why did you reject that testimony what facts do you have to say that no uh the the fact that he says that there's sufficient space on the property to accommodate the uh the the proposed development why does why is that not why does that not matter why does that not make it suitable particularly suited right he's talking about that the fact that it's located on Route 34 does that what does that have to do you know why does that matter or not matter and and and explain that the fact that it's located between a firehouse and a first aid Squad Give me reasons why you already saying that you you disagreed why does that not make it particularly suited you know that that's the focus and that's again because it's a it's a it's a legal and factual analysis that you have to combined and it's what's developed as a result of the municipal land use law and the case the cases that I had cited that's the analysis that a reviewing board has to go through and undertake I can I just think that you know again I just we I think if the fact is if we start with the site suitability because if that's now now I just need to hear from Council as to here's this is the testimony provided you know you've already disagreed why you disagree can I start yeah okay so one of the one of the reasons next to the first aid Squad in Firehouse right saying that it makes it unique for this proposed use I would disagree with that in the fact that being next to a firehouse and EMS doesn't make it necessarily a good use for a residential property right that Firehouse next door has bells that go off loudness in the testimony itself it is talking about it being the two bedroom so folks could utilize it for zoom um for Zoom meetings if you're on a zoom meeting and Bells start going off it's not necessarily the greatest use for for a residential property within there um Mr testino gives testimony uh based off of a question he was asked by a board member of renting it to children and it seems like there is no accommodation for school children so a two-bedroom regardless if you want to Market it to a family or not po could have maybe two children that share a bedroom there's no accommodation specifically that they're saying and in his words is on page 21 of the testimony on line number 12 I would be intending to to rent to singles or a married couple but a lot of people would like to have the second room especially in this day so they could have zoom so that was a marketing decision not taking into account that there could be children how will the buses get in and out what is the effect on a bus on Route 34 whether it's high school middle school or um grade school on the traffic flow yes there's there the testimony that they're they're saying is there will be less potential less traffic I think it was trips yeah 14 versus 10 something along those lines um trips is one thing but when those trips occur is a second right the trips for a residential unit happen during rush hours right during when more trips are um happening for a office space you'll have folks those 14 trips maybe five to five of them happen during rush hour but the rest of them happen off hours where the majority of these will probably be happen as people are leaving and coming home from work leaving a coming home from maybe picking up children and all those happen during the the most busy time on Route 34 and if you look at the traffic on Route 34 it's not necessarily the greatest um coming up to that light right if there is a fire or an EMS emergency what happens to that as well so I think that based off of that they're not meeting that criteria and the testimony that they're they're given is that it makes it unique but I believe it does not make it unique you got you can certainly chime in or not chime in on I think sorry go ahead go ahead disrespect I yeah I personally think it's a horrible location because of the kids uh he mentioned two kids living there but that's that's that's it's not safe I don't believe for kids to be living in an apartment I'm I'm amazed there's even two other units on that side that's amazing to me uh houses don't belong on that side of the street that's what I believe I being at the visit house there now it's a business I understand that but as far as there being rentals no I totally disagree with that because there let's face there will be kids there I believe it so I I'm not I'm I think it's wrong I don't think kids should be living on 34 that's that's so again yeah let let's stay let's stay uh focused to the to the the the um right to to the testimony evidence presented right I mean generally you know those are the types of things the Court's not going to want right it's just general statements like you know I think it's as Mr D said right the first reason he the planner it indicated was for for particular the suit uh site suitability he found it was unique because the fact that it's sat between a firehouse and the ambulance Squad right and then you know again as Mr dama had stated um he disagree with that and the reason why was again number one um it could it's going to again if there's alarms and there's bells and if you happen to live in the apartment uh and you are single and you're working from home that becomes a distraction the issue relative to uh buses getting in and out of the site uh on Route 34 because it's a busy highway um again um and coupled with the potential for emergency vehicles going in and out of the site uh is again contrary to that to that opinion um um and the fact that um it happens to be situated between those two isn't of itself uh a unique aspect of the site that makes it particularly suited again so that's that's where the the focus and the analysis needs to be uh to because you you have to give reasons why you disagree with that opinion uh since he's the expert and you're again um and you know again I think the thing is and we talked before is because you all live here you're allowed to bring you know your personal experience knowledge of the site Eric had Mr pom had referred to a light that's close by I mean I don't personally know that but he knows of it and and that's going to impact the ability of Ingress potentially Ingress and egress and out of the site uh depending on the you know the time of the day again if it's in the morning um I'm not going to put words in Mr D's mouth uh and let's say it's in the morning you have a bus and then you have a fire alarm and Lord let's sa you a fire alarm in the first a alarm right so I mean that that's the type of the analysis that that's that the focus needs to be I I would also say and I don't know if this would be the positive or negative piece but there were stated in here there's um based off of a New York Times article in I'm trying to find it I think in early 21 possibly that office space is going away um when I look at it the I think that was that would have been I that was part of the negative uh the negative criteria when the planner was talking about market market trends okay right so so that's save that let's save that okay because that is one of the um one of the that was on the on the on the negative criteria aspect of it and the the other thing I would part of the testimony is saying that the the property is narrow and deep being narrow and deep and only being able to build closer to Route 34 how does that make it unique in the fact that there should be apartments on there right how is that how is it being narrow and deep any you know play into putting apartments on top instead of the original uh application which was Apartments a I'm sorry office yes so putting Apartments versus office and the the lot size is I I think that's a moot point because regardless of what's there the lot's the lot it doesn't make it unique to have a to have an apartment on top instead of a office again I think then the next Focus it's part of that though is he says be on Route 34 right that's that that makes it particularly suited so I think what the the board has to a ask itself the fact that it's located on a state highway uh with this mixed juice does that make it particularly suited or not um so you you you you know you look around you look what's there uh you know existing and and the fact that it happens to be on a state highway um versus any other Road or any other use on that site could be you know the office is there as well on state highway so I think again you look at that and and determine you think that that's sufficient and again I think that's what Eric Mr dama was alluded to that the fact that it being on a state highway uh doesn't necessarily make it particularly suited um anything could go on Route 3 and also being built closer to a state highway is probably not the right thing for an apartment you'd want to be further off of the roadway as opposed to closer to the roadway and I believe the slot size is roughly one and a half acres so8 Acres yeah 1.8 but that's that's that that's not the point that I'm arguing um the back part of the lot is the part that is constrainted so you have to build in the front part so there there are apartments that will be facing Route 34 so being closer to a state highway is not conducive to building a residential unit as opposed to an office offices are more conducive to being closer to streets as opposed to a residential property and I think what you have to ask yourself is um the fact that that it's located on the state highway um does it distinguish itself from any other use on the state highway right again it's site suitability right so from that perspective um and you know the office being there right it's it exists and it was approved the fact being on a state highway um does that infect you know what impact if any um or does it distinguish it from it you know from many other use so you know again uh that's what you need to look at and uh and and you know give R reasons why it's not well I'll add also that calling it unique doesn't make it unique for apartments um and as far as um Route 34 we know that's a state highway it's a um Corridor that the road came cannot be also expanded um and um it is congested there already and um it's unfortunate if you build Apartments there there's no place for the tenants to walk there it's not convenient to get by foot to get anywhere else and so that I think is definitely a negative um when you consider that so the uniqueness that you said between a it is unique being between a fire fire station and um a first aid but I don't think it's a positive and so that's that's um the points that I would like to make about that um and once again I said 34 is congested so it's not like people in this apartment are going to be able to walk and go to any other um businesses in the area and it's not conducive for apartments over there you know and I again as part of the analysis I think you have to look at um again basic a testimony of the planner saying that being located basically next to a firehouse and the fire anami Squad makes it unique um but I think again knowing the the community are there other instances where residences are located next to fire stations and fire squads I mean that's a question I think you you need to consider you know and test talk about that I think it you know well yeah I mean I think there are if you go into U Madison Park area right across the street from M from Madison Park to development is the Madison Park Firehouse a lot of these are they're older developments they're not newer developments right they were built I believe right after World War II if I'm not mistaken Madison Park um the Madison Park firehouse has expanded I would imagine over time so I don't think that it is there's not a direct correlation to that right there there is a need for fire stations to be next to or close to residential development you can't get away from that because we can't put all our fire stations on route nine Because by the time they they respond they may not be in time but to put a brand new um a brand new residential development in this case the four apartments right next to existing I would say that that's it's not responsible for the for the the site itself if we were if you look back in time having a smaller Firehouse that folks were volunteers at that's that was really the name of that game back then right in the late 60s and 70s folks were the volunteers it would be close to their home they could quickly get there to respond that's not what this is about this is four units that is what they're trying to say is marketing to either single or married folks but you can't deny if a family decides four families decide to move in then it's not conducive to that yes yes please thank you um so just to um talk about what you're saying you know so it's three one-bedroom apartments so families aren't going to be renting a one bedroom apartment it's you're not going to have a one-bedroom apartment um if you have kids and if you do it's going to be a b you know little baby and then when they grow you know when they actually start moving you're going to need to expand to a bigger place so I think that that that's um not something that we should be concerned about and according to Mr teso's testimony um he did say that the reason for the two-bedroom was that he wants to use that he wants to be a snowbird one day and he wants that unit for himself obviously you know he's saying that another use would be to rent to someone but he really wants that unit as he stated in his testimony for himself so the really the only ones that would be rented would be the one-bedrooms and you're not having families in a one-bedroom apartment um and as far as you know being worried about children on 34 of course I'm always worried about children on on a major highway but you know for many many years there was Cheesequake school right on Route 34 and currently there there is a preschool right on 34 so there's buses going in and out of 34 so it's not you know a bus isn't going to pull in if they're going to pick that child up they're going to pick them up they're going to pull over I mean I imagine on 34 I don't see the issue with the buses they're not going to be pulling into the actual development you know I imagine that they're going to be just pulling up just to the side of you know and there's crossing guards I mean we all know when you're when you're stopping with a a bus um traffic stops you know uh or it's or you know the person goes to jail gets a ticket whatever so just uh just going to push I just needed to just push back on that a little bit um U but I do understand that you know Route 34 is a main road and you know you want to be worried about children but again there is there used to be a an elementary school on 34 and there is currently a preschool on 34 so just needed to add that to the conversation and again the intention is not for one-bedroom apartments to have a family in there so um and and I would say that based off of what he said the only reason I'm asking for two in case I decide so he's not saying definitively that he is based off of his testimony I can't look at his I can't look at him and say well oh you'll probably use it and he say in case he decides he may never decide and have that and I would even counter to say that there are folks that do raise families in one bedroom apartments not everyone can step up to a bigger apartment based off of financial responsibilities that they have that they maybe cannot go to a two or three bedroom apartment so if somebody's in a one-bedroom apartment already they may have to make that decision they need to stay there for whatever reason from a financial standpoint so you can't can't say that there isn't because I I do know folks that I grew up with that were raised in a one-bedroom apartment where there were two children plus the parents and the living room was made into a makeshift depart um bedroom for the kids for whatever reason until they were able to financially get out and some of the folks that that I that I knew growing up were not able to get out until they hit high school so I mean that that's that's one of the things we can never look at who's going to rent that apartment well I understand we just need to you know look at what the facts are that's a good point right you have to look at the facts as presented um well I'm I'm reading literally yeah yeah I know yeah right I'm just say recognizing that if I think if you look at the transcript too U Know The the there there's there's an analysis done based upon a ruer study I think people have sat on boards before familiar with the ruer study that you know they assume the number of there a I shouldn't say assume they give you a number based upon the square footage that's in the test right exactly yes we are talking about traffic when our consultant traffic engineer raakesh D in his testimony we cannot consider his testimony but he's talking about the traffic we are but I am not test I am not saying that I took his into account I'm giving my own testimony as to what I believe the reasons I believe I did not look at Miss Swant or M Mr dar testimony whatsoever based off of what the the attorney told us so I did not look at there at all no I'm just wanted to State out that Mr Dari has said from a traffic standpoint I believe it is on the line here so so again so our professional agreed with their cannot be cannot consider okay their testimony else all right then I'll just add at the end of this um I think everyone took their time and I think they reviewed everything despite Mr desai's Question of what we were doing um I think that overall everyone obviously from you hear the comments that they read everything and it was done in a way to to make sure that we did the right decision so you know so no but I think the inconsistency with the master plan pled oh we're not into that yet yet we're not again let's one step at a time because you it's again you're not used to it I'm trying to keep everyone going forward and if it's going to take longer we'll have to continue it I want to make sure we get it right we have a record because right so that that uh but again focus is and one thing I do want to note if you remember earlier I talked about uh what there was a case uh dealing with in the analysis of site suitability it says in the context uh the court and price explain uh that for tier suitability again this is a quote means that strict strict adherence to the established zoning requirements that would mean only office space uh would be less beneficial uh to the general welfare so I think one of the questions you have to ask yourself is that if it was just office is that is that less beneficial to the general welfare than if it was office with um with um the multif family use and then can consider the the the testimony provided or the U the evidence provided and to see if with that analysis uh done by the applicant as well um I think you need to you should consider and look at that uh as part of your analysis I don't know is there any is there any more any more comments relative to the uh particular the site suitability relative to the testimony provided like I said he had used those reasons fact that it was um sufficient space located on Route 34 and the location between the squad and the fire station um and then the development being in the front front half of the property uh development being on the in the front half of the property and then the other the other item he indicated was I'm sorry there's a fifth one uh was the fact that uh the building was built in the 1950s uh and that it's in need of substantial Improvement and this would give it much more curve appeal not improving it they're knocking it down in their testimony they're in essence bulldozing it and building new they're not they're not improving that that particular building they're building a new one right and I think though Eric is part of Mr dep part of your reasoning you didn't agree with it being closer to 34s being a make it sight suitability for the use that they're proposed with the mixed juice right I think your indication was that actually given that there's a residential component it should be further away from Route 34 as opposed to closer to a state highway yeah anybody else want to comment on those other four and five reasons I'd like to agree with uh councilman D made very very good points yeah I don't think the planner like just using the word unique that it equates to Apartments there there's other non-residential use you could have there um and the criteria that they use to me doesn't make it positive for appointments so then so then we the next part of the positive criteria that the planner uh had referred to to now we go into the purposes of the ML and that starts on um page 47 I believe so if you if you again so the second prong which is we're discussing is whether or not um the particular use would promote any of the purposes of the municipal land use law the municipal land use law um sets forth a mer of purposes at 40 col 55d 2 and includes uh purposes a through q and in this instance uh the uh PL the planning expert um provided his opinion that the proposal would be promoted by two of the purposes and they only have to meet one of them but the purposes that he cited were uh 40 col 55d 2G um by providing uh suffi again if you look at the testimony sufficient space in appropriate locations um by providing sufficient space for the proposed mixed use development giving that uh was previous um and then the other uh particular was I and uh use I is to promote the conservation I'm sorry to promote a desirable visual environment through creative development techniques and good Civic design so again if you it starts at page 47 so then what you the the council has to do is to determine whether or not looking at the the evidence presented whether or not those two criteria of the purpose of the municipal land use law uh were met um again you've determined that uh the use variance wasn't granted you determined they were not met so now you have to give reasons why again the the criteria the criteria were not met and it starts actually on page 46 no no this is again this is the second aspect of the positive criteria and and whether or not uh they meets the proposed develop meets any of the purposes the municipal Municipal land use law uh and the uh planner had proposed that purpose G that there's sufficient space and appropriate location of the of the development and and purpose I that um and again he used the term visual environment as I explained there's there's more to it uh than than you know he just he he's uh cited so in the first analysis again you think that the proposed development and and what's proposed um dealing with purpose ey did did he provide enough evidence to say that they met uh purpose uh rather purpose G first and purpose I with purpose G being to provide sufficient space and appropriate locations for a variety of agricultural residential recreational commercial and Industrial uses and open space both public and private according to the respective environmental requirements in order to meet the needs of all New Jersey residents you have questions as to what I'm talking about Chim up so as to discuss the sufficient space and appropriate location I think we kind of talked about that right the the front being it's an it yes the the lot size is one thing but the actual building size is another right so it's probably roughly around half an acre or so maybe a little bit more um from a developable side it's only on the front portion of it the the location between the fire and EMS I I don't think that it meets the criteria I always look at it what's the benefit of this for the town what what is the benefit of having um departments versus something else and I don't see it it it can be used for other things other than residential yeah it's right yeah yeah that whole area there's no side walks you know it's just not conducive for people so so again let's let's you're going astray let's stay focused right visual environment right the first thing is actually the first thing is sufficient space right so so that's what I just just discussed so provide sufficient doeses doeses the applicant the propos development provides sufficient space and appropriate locations that's what he shortened it but there's more to it for a variety of agricultural residential recreational commercial and Industrial uses in open space so look at the the proposed development and say that are is this purpose being met right so if you're saying no why is it not being met because that's what you believe it's not being met right it's talking about um Recreation what Recreation is is going there for an apartment no outdoor space right the site itself is fairly small and based off of the the site plan if I'm not mistaken a lot of it is there a sketch plan right yeah a lot of it will be paved there's uh the site actually there's two-thirds of it is encumbered with the conservation e two-thirds that is not being built on right correct right now you know if you take that out of the play that's beh that will be behind the building that's correct that you're not going to beautify the front side that people are going to see you're leaving in essence bare Woodlands behind it so you're not beautifying the area it's not it's not adding to the visual environment um I would even argue that if you asked residents they would say I'd rather that that home or that office now but was the existing building to be there because that's what our residents look at they'd like to see what was of the past they don't want to see the new it's not the residents that that drive up and down that I've spoken to they don't want to see these big buildings come up right and by tearing down and older building to go to a a newer bigger building I just don't think it's conducive to what they're saying is that it would enhance the visual environment it would make it look more like a cityscape as opposed to Oldbridge that goes to purpose ey the visual environment right yes now how about as far as the uh the the the appropriate location between the fire and it's just the location of it on Route 34 right being right next to a fire and EMS there is a school/ daycare which is right up the block that to put now apartments up there right it that school which was the Cheesequake school is not used by Oldbridge it's utilized by S bill so it's not even there's no potential to be utilized by anybody within that if there were children there to use that right so being there it I just feel that it does not it's not an appropriate location to put a residential unit so again yeah and then you know ask your qu ask yourself um does does the you said the the light the site location but does the development as proposed does it provide uh does it provide sufficient space and I think uh Eric what you had said that the fact that it's two-thirds of it is not being built right it's going to remain wooded which is which is a good thing uh but to the extent that the onethird that's being developed is in the front uh there's um and most of that will be black top as a parking lot right uh that in fact um um and then you're going to have a residential use coupled with that right on top of that so I believe each floor it said was over 4,000 square feet it's 9,000 square feet total roughly 9,000 4,000 plus square feet on each level so, plus per existing well the the the approval back in um prior approval was a 9,000 ft office building so right this is about 4,000 ft each building up and down M look I have a question regarding I the visual environment so basically the building may be beautiful but I don't think the residents people driving by really care I don't think people even know the buildings there now so as far as anything else being beautiful I don't know how that could how that how was that better for and then if you look at that that whole purpose it's to promote a desirable visual environment through creative development techniques and good Civic design and Arrangement and then you know compare that purpose to what the testimony was you look at the planner's testimony and again you have to ask yourself did he meet that did he provide evidence of meeting that criteria for that purpose did he provide evidence of meeting the purpose G that we had talked about uh as well you know I think you you need to take a delve further into the purposes and and the evidence uh provided and provide more of a basis I think you have enough right now I think he also said that he would work with the township to modify any plans that he had if he want if they if the township had any specific criteria so he did say that he would modify whatever he had right but to help right and that's stuff that usually happens at site plan but we don't have that so we don't know what those would be right um that's that that's why you know with a bifurcated application is a little more difficult because you don't have that part of it you just have the the use part uh and then you you know you have to sort of draw some inferences the conservation e that's in the back the the land that's in the back it's a conservation easement so you can't do anything with it anyway um so would would would stay that way uh permanently um and then I just think when you start with if you think of this as a whole so we're going to if they they were allowed to build this this is the first of its kind in that area in that whole area there's nothing else that's been approved other mixed uses um the project with this zone so yes it's Unique in that way but what does that do to the area it's not consistent with the area for well I know I I understand that but I yeah right I'd rather you get it right I get that right right you know because again I just want to make sure that uh we have a complete record uh for the U thing again I think one of the things too is I I think Eric you alluded to it uh with respect to the criteria I um and the um the visual environment um gr to desired visual environment through creative development techniques and good Civic design um but I think you alluded to the fact that they're going to demolish the building that's their reason of getting rid of it right which I think then you ask yourself does that is that a is that creative development techniques and a good Civic design I mean any building could be knocked down right I think there anything there's nothing unique about that uh from that perspective right is there any more uh discussion relative to the uh the planner uh failing to meet purposes gni uh and and not meeting that aspect of the positive criteria so uh you would we then you would conclude just a question that you would conclude that um the planner in this instance again didn't provide sufficient information didn't provide sufficient testimony didn't there isn't sufficient evidence uh to meet the uh positive criteria um in this instance all right any anyone we all good with that okay uh so then the next analysis we talked about is the uh negative criteria um again negative criteria there's two aspects to negative criteria uh cancel may not exercise is power to Grant D1 variance otherwise warranted by virtue of an applicant proving the uh unless the so-called negative criteria has been satisfied last last uh unlettered paragraph of njsa 40 col 55 d70 provides no variance or other relief may be granted without a showing that such variances or other relief can be granted without substantial detriment to the public good which is the first prong of the negative criteria and that it will not substantially impair the intent and purpose of the Zone plan and zoning ordinance which is the second prong of the negative criteria again two prongs and then the term uh Zone plan basically means your master plan and that's the medy court made that determination and then as to the applicant's burden appr proof the applicant must prove and Council must find initially that is more likely than not that the D1 variants can be granted without substantial detriment to the public good the first prong but as to the second prong the um not meeting the intent and purposes of the Zone plan zoning ordinance it's an enhanced quity approve um the variance can be granted um the applicant must prove and the council must find by an enhanced quality proof that the the D1 variance can be granted without substantial impairment of the intent and purpose of the master plan and zoning ordinance and then as part of the enhanced proof the applicant must reconcile right they have to actually do an analysis uh that the proposal to place the mixed juice with residential apartment on the property with the ordinance prohibition against that use that has to be done right that's an important part of it and the enhanced part so uh as we go through on the negative criteria um he uh the first testimony with respect to that was that the uh again he found that the uh variant could be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the master plan and zoning ordinance uh and so uh that's again um first prong would be Grant would be uh the applicant planning expert um talking about uh being able to Grant the D1 variance without substantial detriment to the public good and what his testimony was I think that starts at page 51 his testimony in that instance pertained to uh there were less trips would be generated uh with this proposal the drainage the fact that there was going to be drainage to the Basin to collect water on the rare of the property and it would drain to the Northeast side of the site uh that the applicant agreed that there would be no medical use which there currently is no medical use and the building to be constructed would be designed to have an appearance of a commercial building so those are the reasons why the planner gave as to meeting the first prong uh that the um of the negative criteria that it could be without sub substantial detriment to the public uh public good so uh what I'd like to council again is to respond to those uh that reasoning and that rationale as to uh why it wasn't met so to the fact of that they're bringing up drainage they'd have to do that regardless regardless if it's residential or not there would have to be a basin they'd have to drain I would say that the the water coming onto the property would be exactly the same there that doesn't that's not a reason to build a residential unit is drainage or granted the use variant yeah yeah the they would have to put that drainage in regardless of what was built there if they build something new they have to meet the new um standards that that would have to be for drainage and then from a fewer trip perspective that's based off of um a calculation you don't know how many people are going to be in there you don't know how many um cars will be in and out right um yes based off of calculations 14 versus 10 but when those trips happen are different stories residential trips as I explained before I feel that they they happen during the rush hour period which would be more detrimental to Route 34 is if anyone is driven on Route 34 if you're trying to get out of driveway right it's not a quick let's go it's you know no one's letting you go you have to get out right does that potentially cause more harm right yes maybe it's a a trip or two less but does the timing of those trips become detrimental to Route 34 34 gets into a there's an accident on Route 34 it cripples that part of town so that would just increase the ability to have to for those trips to happen and that potenti will occur but remember um under the The Proposal was that the existing the existing um um right the the proposed building would have actually less trips than the than the office building does that make sense well it's it's a calculation it's a calculation whether it's a calculation or not I mean we got to use our Common Sense well no no they have expert testimony they have a they have a report right and the report is that you know if it's with the with the proposed mixed juice it's uh it's uh 10: in the morning um I think it was 10 in a and um 10 vers 14 14 right 10 vers right 10 vers 14 and then I think uh seven or less trips actually in the am the number but that that's there so uh the what you have to ask yourself is you know you look at the record is there anything to contradict that we have no there is no engineering testimony provided on our side contradict that we don't know how many people are going to be in any given apartment right based off of a calculation but if you have a married couple right that's two cars in and out right so two cars in and out every day I you I when I look at this on the planning too I always try to figure out what's the real trips versus the calculated trips or calculated trips are one thing um but the actual real trips are are another so I I just I just don't don't agree with that I think that there's you know yes the calculation may be one thing but there's go out onto Route 34 go out onto any any other development that has mixed use Andor residential use the trips are a lot more they're generated a lot more than the calculations would say then then again I think you Eric had Mr depal had referenced the fact about the Basin but right there be B and then the third reason he gave was the applicant agreed that there would be no medical office use so you have to ask yourself is that you know is that sufficient to say that there would be no substantial impairment um um detriment to the public good the one thing that they did say about the medical use was that it would create much more traffic right but I think the point is that currently there's no medical use there there's no yeah right in the prior approval there was no medical use either so I think the G question right okay we know that there wasn't any uh he's just continuing the same thing so is that is that enough of uh you know again he provide it but it's not really moving the needle either way from your perspective and then and then the building to be constructed will be designed to have an appearance of a commercial building grick you had commented about that earlier part about I folks the it's more pleasant right now to look at a home even though know it's an office it's still it's still a home in the past and I think Mr testino testified that when he was younger he remembers a friend of his I believe that may may have lived there um and and I don't know if that was the testimony in the zoning board or the um when he came to council so wouldn't be Council would have been part of the Z Bo part zoning board okay there's a lot of I read this twice there's a lot of reading here so I'm getting a little um so I think folks and I think it's more pleasing to see that home there rather than now a new twostory because right now it's a single story right you're going from a single story residential look unit to a two-story commercial looking building the residential unit is more pleasing but the but it's a it's a a commercial uh zone so there technically can be a two story uh yes no yes no I agree but they're reason they reason is that that that it's going that it's going to be pleasing is because it's going to look like it's office base and I would disagree that it's pleasing that it's going to look like office space if it was if they're building a office building in an og1 Zone then it's going to be an office but now one of the reasons they wanted the og1 Zone changed is they want to have uh residential right and part of that is saying that they want they'll make it look like office based and that's one of the reasons why we should over we should give them the use variants and I don't I don't agree that that's a good reason for use variant is you're going to make it look commercial so then have a commercial building I know but one of the things again they did say was that oh okay well we just they were doing that to try to fit the design or the ma of the master plan but it they can definitely soften the top up because I know you know to make it look more residential and more pleasing I'm I'm sure they could but if that was but that was part of the testimony is what I'm saying yeah no but if one of their reason is we're going to make it look um like an office space in which is reason why you should give us um a variance a D1 variance on it not being all office I don't think that that's a good reason anybody else have any comments on that part and then um I think that was the yeah that was the fifth that was the fourth part as the uh not um could be granted without sub substantial detriment um then so then the next part component of the analysis on the second Prague um again that the D1 variants could be granted without substantially impairing the intent and purpose of the master plan and the zoning ordinance I think that testimony is at page uh 48 and 49 um and then uh the opinion that he provided uh that there was no impairment to the master plan uh because the applicant had approve had approval in 2019 of a 9,000 foot office and in uh 20 2021 the application was for mix use Office filling with apartments and then his testimony again this is in quotes the applica that made the application consistent with changing market trends that was Sis's comment um that he also he also another reason why for meeting the second prong is the fact that he did not again this is in quotes see a substantial impact to the zoning ordinance and the purpose of the township zoning ordinance for the most part mirrors the mlu well remember we just reviewed those purposes what he was saying was that um it didn't it wasn't didn't substantially impact the zoning ordinance and the purpose of the og1 Zone um because was in fact um it mirrored the the purposes of the mlu well um and then regarding uh the Zone plan he apped that uh while the og1 Zone did not permit residential like uses uh he says that he did say it permitted residential Lake uses per hotels motels he said they were transient nature home occupations as principal use and home businesses say home professional office as a conditional use uh and he said because the og1 had these elements of residential uh it did not um uh conflict with the Township's uh master plan um so comments on that aspect of the analysis for the negative criteria okay um when the master plan was reviewed in 2020 it was specific at that time we specifically stated nonresidential units um in this OG Zone um we have a responsibility to adhere to the master plan but also the pulse in this town is that we have a lot of apartments and there's certain areas that there are apartments and there's actually areas that are designated for apartments to rebuilt so I really don't see the value of building more Apartments um in an OG Zone there's other uses that can be done other than the nonresidential uses other than offices um and as we have talked about before you know being on 34 um it's not the best area and if you look in that area there are no other um approved mixed use projects within this Zone and um I think it's wise to keep it that way yeah I think when you look at this analysis look at two things there's the OG og1 zoning ordinance right which and and look at what its purpose is because there's a stated purpose for that and then you look at the master plan and then the sistance and it's in a record that there was the master plan re-exam uh done in 20 updated in 2020 uh that talked about um looking to change the og1 Zone which included nonresidential uses right yeah so the mass plan reexamination the og1 zones are being looked at for non-residential uses not not to put mixed use or um residential in there know and I and I think the testimony that they're giving that the that even though it permits hotels and motels hotels and motels are not residential right and and he says that they say it here they're transient in nature transient in nature people don't have an expectation of quiet as they would with a residential when they're going into a hotel you're going into a hotel there most hotels are in places where it is louder and things like that you're the going there just later at night to sleep and and not really spend a lot of time hotels aren't meant to spend 12 to 18 hours a day in residential units are um so I think that that point and he even says it the fact that they are um transient in nature kind of takes his argument out and they are specifically stating that the residential use is not permitted in the OG Zone The og1 Zone they're telling us that there is no permitted use in there so for us to grant that you know based off of everything that they're saying clearly conflicts with what the master plan re-exams if he's saying that I don't a substantial detriment to the Zone plan and zoning ordinance The Zone plan and zoning ordinance specifically States no residential that is a detriment by putting residential it's like saying uh I don't see a detriment to residential by putting a commercial piece of property in a residential neighborhood there is a detriment to that right because you're flipping what the zone is you're flipping the um the usage for it and again with respect to the purpose of the og1 Zone um which he says again um seems as seems as if he conflates the purposes of the ml uh that we had talked about with the purpose of the og1 Zone uh which are different if you look at that you have to take ask yourself um he doesn't discuss the purpose of the og1 Zone this testimony B basically the Project's not compatible with the neighboring uses when you talk about a motel you would not be able to fit a motel on that property I think what he I think what he's saying is that hotels and motels are permitted in the og1 onone right probably couldn't go on that site right um and then it permits home occupation businesses okay but is that the same as permitting a use that's specifically prohibited right that's what you have to ask yourself is it I mean is it the same you have to that's that's the question right and he also States in his testimony that the og1 Zone permits and this is on page 50 starts on line 11 The og1 Zone permits a variety of uses and some of which in my professional opinion are you know intense and but you know I'm sorry to say you know this I'm reading it um they're uses that can never be developed on the site but still these are the uses that are certainly more intense than a residential use they may be permitted on the site but you can't put them there because it's not you're not able to build on a in in essence a 1 half acre to let's say 3/4 acre lot yes they might be permitted in the og1 zone but it's not permissible within the lot size so to make that argument that there are um uses that are more intense which I would agree with there are uses that are more intense but this is not a 10 acre lot that is buildable this is a small really it's a the size of a residential lot right and to say that we could build a giant um building on it right is not right right this is a small og1 lot it's yes it's a 34 an N loock you can't build those big office buildings on right so to to even put the testimony that there are there are uses that are more intense that is true but this is not the the right the right case for it this is a small 3/4 acre lot that's zoned office and then uh again I think if if he he one of the things that he commented on was uh what was that purposes had to do with the uh he talked about the market trends is this the New York Times article oh I say I think I had that I just want to make sure I hit that we address address all his points U there was no no I'm sorry that that was no impairment you not see stantial impact on now those were the two right I'm sorry yeah market trends had to do with with the sight suitability anything else you guys want to anybody wants to add relative to those uh to to and again with respect to that second prong um there there needs to be an enhanced uh quality of proof um and you know if you look at his testimony um you know was he just gave basically the reasons uh four reasons that we articulated um but um nothing further than that I would like to add that this applicant um went for first the use variance then it would have to go for the density variance correct yeah and we didn't get to the density variant because if you don't get the use variant and we've never approved the density variance in that area in that zone that's something you can right can the fact that the reason why he needs a density variance is because the resident us is not permitted The Zone the zoning or ordinance or the bulk standards there isn't one for that so so it's going to it's going to violate it right and that sort of goes to the site suitability right talking about does it does it meet that um oh yeah right right the uh there there was yeah he did have discussion relative to the market trends um earlier was that um that because the the applicant was seeking to change the proposed use from Justin office to the office with the multi that it was consistent with the changing market trends and then that would make it consistent with the 2020 master plan re-exam report because I think he referenced that there was language in the ream report talking about market trends but the market trends but the market trends that yes we were going away from the og1 zone and looking at non-residential uses for the og1 zone because not residential uses Office Buildings were not being built I think that was the market trends that well they the market Trend was I don't know I mean there's the New York Times article that that I was referenced in there and there are multiple articles on it um and you'll actually read New York Times articles now that are saying how people are going back into the office um I am one of those people who go back into the office now almost every week um every day so the the trend has changed and quite and and I tried to like look at multiple articles the articles that are really referenced are referenced to cityscapes right like New York City Newark Jersey City where those those offices are not potentially being utilized back then as much because all all companies went to remote work during covid those buildings are now being reoccupied by the same companies coming back into that and when you look at what the office space would be utilized in this particular case the let's just say it's four office spaces of you know um 20 something hundred square feet each those are different types of businesses than large scale you know Financial operations uh or real estate companies that have three four five 600 uh Associates or even thousands of Associates my company has 880,000 Associates at this point um it's a different use this office as opposed to that right if this was a uh like an office Park back then that's though that was that article was referring to not these smaller based businesses that have six or seven employees if that uh you know an office of that size would probably only have maybe four or five so you're not looking at those folks working from home those smaller based maybe family businesses privately owned businesses still needed a use for offices I think the trend is as you said uh Mr dama going back to the office because they realize by not being in the office um you have decimated B businesses around that office space I mean you can just look at Trenton for example when people aren't going to work what has happened there um so it is really unfortunate when you think that even federal state we have buildings that aren't being occupied by the people that are that are working working from home but still we're paying for those buildings at a taxpayers dollars it's not sensible so you're right the trend is to get back to work yeah quick my concern is going forward if this gets approved is it going to affect all the other units again no no you're just looking at this application you can't look at what things going forward right uh you're only here to to to to to give the for this particular application um again I know there's there's a 7:30 meeting but I think one the other thing that's important that you need to you know maybe can take a look at is the re exam report and what it is that the planning board because they did the report what is what is it that they said versus what is it they didn't say remember they're doing a re-exam and they had specific language in there about um uh not having having other non-residential uses in the og1 so at that time the planning board had the ability to to review it and put in comments right so again right right I mean if they again if they wanted residential uses they they could have put the residential uses in there right that's that's what you have to look at from that perspective and the other thing is is that when you look at his testimony I think you have to consider whether or not the planner itself you know did you did you see any analysis um uh reconciling the fact that the proposed that the proposed multif family housing um um uh with um with the or did he reconcile um the the proposal uh to allow the multif family housing uh with the ordinance prohibition against multif family housing when you look at his testimony did you see any of that uh that what he provided um because that's one of the things that the planner needed to do he needs to reconcile that difference saying that hey even though the uh you know the Zone The Zone doesn't allow it uh we're putting it uh we we want to put it we want to put it in here and and these are the reasons why that and reconcile that difference I don't know if you if you considered that aspect as well anyone anyone yeah I just want to go on record is saying that the res residential use is prohibited in the og1 zone and is not suited for the proposed use I know we didn't talk about density but there are no density requirements for the og1 Zone therefore residential is not only restricted but not well suited for the Zone oh well yeah well and E got that you know when you as part of the analysis I think that goes back to the uh site suitability right uh analysis and then I think part of the positive criteria right that there are no density requirements in there right and so that's what one of the reasons why they they needed that variance at D5 variance I think that that is part of your I think analysis uh you know with respect to that because if it if it was suited um they wouldn't you wouldn't need that type of variance right I think when you if you look at the application itself even while even though there was not a site plan application you know you look at some of the things that they would need if they went to site plan uh they there were there were a number of C variances and waivers that were also requested right um you know the you know it's part of that application so you know again um perfect situation you go in and you don't need any types of variances but you know those are those are items too that that shows that deals with the sight suit building all right anybody else I I just want to say that you know as a as a governing body we take great pains into adhering to our master plan and we look at it often right so you know how how else are we supposed to make sure that commercials over here residentials over here you know we have the Town Center which allows mixed use right so we have different zones right so how as a governing body do we make sure that you know we're adhering to those you know there's a process yeah um all right just want to make sure so at this point what I'd do is just uh no other comments anybody wants to make relative to the findings and fact and the conclusion being that the fact that um the planner uh in this instance uh failed to meet the uh uh there's suff there was insufficient evidence to support the uh both both prongs of the positive criteria uh there was insufficient evidence presented that the applicant met both prongs of the negative criteria is that correct everyone agrees with that those conclusions as well all right so then we'll just I'll just again I'm going to do a once I get the uh transcript from Debbie help uh we'll put a resolution together and and then you'll adopt that uh hopefully Kevin you're going to are you back for the meet first meeting in December all right must be must be nice to say I don't know if I'll be back may maybe if necessary you can call in because we're gonna you know you're gonna have to yeah I just we have a a let's let's finish a case management conference I was hoping to get it adopted at that first meeting in December but if need be you can call in even if it's for liit am time uh so at this point any any more comments anybody uh I would just let's as a not formality uh just take a motion uh to uh approve the uh uh findings and conclusions that we discuss on the record and then which will include you know I do the resolution um expand B P then ultimately we'll adopt the resolution but if it's just going to have a a motion to approve those findings and conclusions that were discussed do we have a motion motion to approve the finding second conclusions and conclusion roll call coun councilwoman dearo abin councilman dep yes councilman Desai yep sure it's uh we're taking a vote to uh Voice vote on the uh findings of fact and conclusions uh that were discussed on the record to to to approve them verbally and then I have to do a resolution that all incompass uh the discussion on the record and expand upon that I I do not agree with the findings and there are reason for it I want to put on record number one applant Mr Willam Sarah is reasoning to reverse zoning boards approval was based on a false statement in courot board approved the application against the recommendation of Township professional quot ends when I find the memo of Township planner Miss saand does not even mention about approval or not approval it leaves up to Board second on the transcript of the meeting on page 71 the vice chairman of the board Mr ders stating at the time of the voting yes to approve D1 variance in courot I think it is going to be a nice building you know some improvement on 34 so my vote is yes also chairman Mr Sullivan says in court I don't think there is any detrimental to the zoning and or the public good quot ends so on based upon this three and the today's discussion I still could not agree how initially in January of 22 this esteem Council has voted on this without checking the facts of the appealant appealant has a motive I don't want to say because Council say I should not say that but the motive was bad and we went along with that bad motive so thank you that's your comment okay I will stop thank you right thanks councilman Garcia yes councilman pasky yes Council vice president Dr Greenberg belli yes council president soar yes just real quick motion open the public because it's a public meeting can we have motion open to public move it second councilman dep second by Mr councilman pasky all in favor I okay anybody from the public motion to close motion to close motion to close motion by Dr Greenberg B second second by councilman pasky all in favor motion to motion to adjourn now motion to adjourn second second second by pasy motion bya roll call councilman auli um councilman councilwoman yes councilman dep yes councilman Desai yes councilman Garcia yes councilman pasky yes Council vice president Dr Greenberg belly yes council president soar German at 7:45 p.m. e e e