Hillsborough Township Board of Adjustment Meeting September 7, 2011 Chairperson Helen Haines called the Board of Adjustment Meeting of September 7, 2011 to order at 7:33 p.m. The meeting took place at the Municipal Building in the Courtroom. Pledge of Allegiance Notice of Meeting Chairperson Haines announced that the meeting had been duly advertised according to Section 5 of the Open Public Meetings Act, Chapter 231, Public Law 1975. Roll Call: Joseph Jaghab Present Barry Quick Absent Helen Haines, Chairperson - Present Leon Krals - Absent Walter Dietz, Vice Chairman - Present Frank Valcheck - Present John Sheridan - Absent Frank Herbert (Alt. #1) - Present John Stamler (Alt. #2) - Present Mark Wetter (Alt. #3) - Present Michael Volpe (Alt. #4) - Present Also in attendance are Mark Anderson, Esq., Board Attorney, William H. R. White, III, PE, Engineer, Maser Consulting; Robert Ringelheim, PP, Township Planner; David Kois, Zoning Officer / Assistant Planner; and Lucille Grozinski, CCR. Board of Adjustment Business None Business from the Floor None Public Hearing-Applications Curtis WESTOVER-File #BA-11-09-Block 174, Lot 93.06-229 Zion Road Mr. Anderson noted that in his opinion the Board does not have jurisdiction. The deed for the property was executed by Mr. Westover in accordance with the subdivision granted by the Hillsborough Township Planning Board (Resolution #01-PB-21) on December 6, 2001. Resolution #01-PB-21 reads that each deed will contain a restriction on the use of the lot to agricultural use. The application includes a request for non-agricultural use. Mr. Anderson noted a similar issue can be found in the case Soussa v. Denville Township Planning Board. The plaintiff was granted a subdivision on the condition that the remaining 20 acre parcel would be unavailable for future subdivision. The plaintiff executed a deed which restricted further subdivision. Eleven years later Soussa filed an application to the Planning Board to subdivide the 20 acre parcel, contrary to the deed restriction. The Planning Board made their ruling that they lacked jurisdiction because of the deed restriction. The applicant filed a complaint to Superior Court seeking to compel the Planning Board to hear and decide their application. The court dismissed the complaint on the ground that the deed restriction surrendered a property right of the plaintiffs. Mr. Anderson noted that he focused on the jurisdictional issue, but there are other issues that could be present in this application. If the Board has no jurisdiction then there is no need to pursue those. Vice Chairman Dietz asked if the Board was to do that, could there be a lawsuit. 1
Mr. Anderson noted that if the Board does rule that it has jurisdiction the Board would be equally exposed and less likely to win. Vice Chairman Dietz noted that Mr. Westover gave up his right to pursue non-agricultural uses. Mr. Herbert asked if Mr. Westover gave up his right to subdivide or for different uses. Mr. Anderson noted the difference between the Soussa case and the Westover application is the right that is given up in the deed restriction. This case is for the restriction of uses other than agricultural use. Chairperson Haines noted that previously Mr. Westover was granted the subdivision for an undersized lot; in exchange he put a deed restriction on it for agricultural uses. Vice Chairman Dietz asked if the deed restriction was part of the farm land preservation act. Mr. Anderson noted that after reviewing the resolution he does not know why the Planning Board asked for a deed restriction in that type of application, but he doesn t believe the Board should second guess the Planning Board s decision. Chairperson Haines asked if the Board can overturn a deed restriction. Mr. Anderson noted the Board does not have the ability to overturn the deed restriction. Vice Chairman Dietz made a motion that the Board does not have jurisdiction for the application which was seconded by Mr. Stamler. Votes in favor: Mr. Valcheck, Mr. Wetter, Mr. Jaghab, Mr. Stamler, Mr. Herbert, Vice Chairman Dietz and Chairperson Haines. Votes against: None. Paul & Erin LOWMAN-File #BA-11-04-Block 142.01, Lot 5-14 Elmendorf Circle Paul Lowman, applicant, was sworn in. Mr. Lowman then testified regarding the request for c bulk variances in order to construct a 16 ft. by 36 ft. pool and a 369 sq. ft. brushed concrete walkway. The filter system will be installed at least 10 ft. from either lot or rear lot with adequate shrubbery planted to conceal the filter. A 6 ft. fence along the perimeter of the property is proposed. There is an existing 8.5 ft. high shed (Side Yard: 10.7 ft. & Rear Yard: 13.5 ft.) that does not meet the setback requirements. It was noted that there was a question in the Planner s report that the shed may infringe upon the rear setback. Vice Chairman Dietz asked why the shed can t be moved. Mr. Lowman noted that moving the shed would require a base and it may be too close to his neighbor. Further, he clarified that moving the shed would be an issue because he has an irregular shaped lot. Chairperson Haines asked if the shed is two ft. too close to the setback. Mr. Lowman noted, yes. Vice Chairman Dietz asked if Mr. Lowman s neighbors would have nonconforming lots if they sold property to him. Mr. Lowman noted, yes. Mr. Stamler asked how close is the neighbor s house to the property line where the variance is being requested. Mr. Lowman noted that he did not know, but the in ground pool is at least 15 ft. from the fence. Mr. Stamler asked if there is any buffering along that fence. Mr. Lowman noted no. A picture was marked into evidence P-1 (Neighbor s fence) Mr. Lowman noted his neighbors on the sides have pools, but not the neighbor in the rear. Vice Chairman Dietz asked why the proposed pool is so close to the property line. Further, he said it could be moved over. Mr. Lowman noted that he was trying to avoid asking for another variance. Chairperson Haines inquired about which fence is closest to the pool. Mr. Lowman said it is the solid wood fence. 2
Mr. Anderson noted that the vote is for a side yard variance only for the pool and a side yard only for the shed. Mr. Lowman requested to add a rear yard setback to 10 ft. for the rear yard setback for the existing shed. Mr. Stamler asked if Mr. Lowman would consider some kind of buffering. Mr. White noted that there is only 6 ft. of area for plants and whatever gets tall will get very wide. Vice Chairman Dietz made a motion to approve the application and to include a rear yard setback of 10 ft and follow any of the engineering comments from April 29, 2011, which was seconded by Mr. Stamler. Votes in favor: Mr. Valcheck, Mr. Wetter, Mr. Jaghab, Mr. Stamler, Mr. Herbert, Vice Chairman Dietz and Chairperson Haines. Votes against: None. Steven and Debra ALTHOLTZ-File #BA-11-06-Block 145.03, Lot 8-66 Chamberlain Drive Steven Altholtz, applicant was sworn in. Mr. Altholtz testified as to his reasons for the garage and that he is requesting three variances. Chairperson Haines asked Mr. Altholtz if he is aware of the requirements he has to meet for a d variance. Mr. Altholtz responded, yes. Mr. Anderson noted that there are specific requirements and it is Mr. Altholtz s burden to present them. The reasons for the garage are not relevant to the Board. The Board has to consider the property and whether variance benefits the property and the township. He suggested that Mr. Altholtz review Mr. Ringleheim s report so he can see the standards for the variance. Further, he indicated it may be useful for Mr. Altholtz s testimony. There was a 5 minute break. Mr. Althotz requested a continuance to the next meeting to consult counsel. Mr. Ringelheim noted that Sept 21, 2011 is the next available meeting. Mr. Stamler noted that Mr. Altholtz may need more time to be ready. Mr. Anderson noted that if Mr. Altholtz was not ready for the next meeting, then there may be a problem with the Board regarding the rules on adjournment or have to provide notice all over again. Further, the other alternative is to move it to later date. Mr. Ringelheim noted October 5, 2011. Mr. Altholtz noted that October would be better. Mr. Ringelheim noted that Mr. Altholtz will be provided with a sheet to sign for extension of the MLUL, because it expires October 4, 2011. Vice Chairman Dietz made a motion to continue to October 5, which was seconded by Mr. Stamler. All members approved the motion. Mr. Wetter then left the meeting. Hillsborough Town Center, LLC-KOKO FITCLUB-File #BA-11-10-Block 163.22, Lot 33-438 Route 206 William Savo, Esq., Attorney for the applicant noted that the applicant, Mr. Cole was issued a permit by the Zoning Officer. The applicant then proceeded to complete the business. When additional information came to the Zoning Officer, he indicated that the use was not permitted in the zone. The applicant had applied under provisions that dealt with individual instruction and commercial/instructional activities. The applicant is seeking approval for a use variance and not an interpretation. KOKO FitClub is a franchise. 3
Robert Heibell, Licensed Professional Engineer for the applicant, was sworn in. He noted that the property is in 18,000 sq. ft. building in the Town Center District. Koko FitClub intends to use 1,963 sq. ft. There are 55 parking spaces required for an 18,000 sq. ft. building and the site has 101 spaces. There is front and rear access to the parking lot. Mr. Heibell proceeded to discuss the reports that are associated with the application. The County Planning Board issued a report dated August 24, 2011 approving the project. The Bureau of Fire Safety had no comments or conditions for the application. Mr. Ringelheim s report stated that there are no conditions for the application. Mr. White s report approved the calculation of the parking spaces and indicated that a sign be placed in accordance with the ordinance. He further noted that there is a requirement for a loading space and it will require a waiver. There are no comments or conditions for the application, with the exception of the application number. Mr. Heibell recommended that the Board look at the number of actual parking spaces (101) and the number of potential users and employees (12-15) that could be there at one time. He noted that the 6 parking spaces are required for 2,000 sq. ft. of retail use. Nine additional spaces will bringing the total up to 64 spaces, which is substantially less than what is available. Mr. Savo asked if there will be any changes to the site plan. Mr. Heibell answered, no. Mr. Stamler inquired about handicap access. Mr. Heibell noted that the building is handicap accessible. Chairperson Haines inquired if the applicant needing more spaces will be an issue for the rest of the businesses. Mr. Heibell stated, no. The parking is shared and the current uses are not using all the spots. Todd Cole, applicant, was sworn in. Mr. Cole indicated that Koko FitClub is unique in the fitness realm because it is automated personal training. Members are guided through automation on a personal training plan based on their selected criteria, such as age, goals, and range of motion. Mr. Savo asked if the equipment is computerized. Mr. Cole answered, yes. People cannot walk into the club and start using the machine. Each workout session is short, from 20-30 minutes. Chairperson Haines inquired about the amount of separate pieces of equipment. Mr. Cole responded, 10. Mr. Savo inquired how the initial evaluations will work. Mr. Cole noted that members are setup by an employee, they get an USB flash drive key with their selected criteria and they use the key to use the equipment. Mr. Savo asked if there will be any showers, pools, saunas, massage area, place to eat or free weights. Mr. Cole responded, no. Mr. Savo asked for the size of the waiting area. Mr. Cole said they are planning for 3 seats. Chairperson Haines asked about preventing 30 members from coming in at the same time. Mr. Savo asked how many operations are there in NJ and nationally right now. Mr. Cole replied that one is operational in Hoboken. Roughly, 120 sold and 40 fully operational. Mr. Cole indicated that a successful operation would be somewhere 150 to 250 people. There are two peak times of the day, early morning and after work. People only use a machine for 30 minutes, because of automation they guided through quickly. Staff will monitor the machine and can gauge when people will people will be finishing. All initial demonstrations are setup by appointment. Mr. Stamler asked about cleaning of the machines. Mr. Cole said members will be trained to use the cleaning wipes. Employees also clean throughout the day. 4
Mr. Savo asked for the number of employees. Mr. Cole replied that they are planning for 3 employees to begin with and as many as 4. Mr. Savo asked how members have access to the facility. Mr. Cole said members will use key cards. Vice Chairman Dietz asked if KOKO FitClub is a service. Mr. Savo replied that they believe it is. Question from public Ms. Susan Reliford inquired about the hours of operation. Mr. Cole said 7 days a week, from 5am to 10pm. David Maski, Licensed Professional Planner for the applicant, was sworn in. Mr. Maski noted that the proposed use is not prohibited in the zone, but it is not specifically listed as a permitted use. He discussed the variances being requested. Mr. Maski testified to the negative and positive criteria. Mr. Maski described the Town Center requirements. Mr. Maski testified that KOKO FitClub is not to be confused with the usual notion of a health club or gym. Mr. Maski defined personal services, retail services and health club, The Latest Illustrated Book of Development Definitions by Moskowitz & Lindbloom. Mr. Ringelheim noted that in 2010 the Township adopted an ordinance that defines personal service establishments and read the definition. Chairperson Haines confirmed that there will be no child care provided or food or sale of goods. Chairperson Haines these are further differences from your fitness club. Mr. Herbert asked why this is not being approved as a fitness club. Chairperson Haines clarified that it is for a modified fitness club because of the size and the specific uses. Vice Chairman replied that there does not have to be a name on it. Mr. Ringelheim referred to his report and noted the zones where indoor recreational facilities and wellness or fitness are permitted. Mr. Anderson clarified that the approval of a d variance is for the KOKO FitClub, as presented in the plans and the testimony before the Board. Chairperson Haines noted that it is limited to 10 machines. Vice Chairman Dietz made a motion to approve the application, which was seconded by Mr. Stamler. Votes in favor: Mr. Valcheck, Mr. Jaghab, Mr. Stamler, Mr. Herbert, Mr. Volpe, Vice Chairman Dietz and Chairperson Haines. Votes against: None. Acceptance of Minutes Vice Chairman Dietz made a motion to approve the executive session minutes of July 20, 2011, with a revision, which was seconded by Mr. Stamler. This was approved unanimously by all eligible members. Vice Chairman Dietz made a motion to approve the regular session minutes of July 20, 2011, which was seconded by Mr. Valcheck. This was approved unanimously by all eligible members. Acceptance of Resolutions Vice Chairman Dietz made a motion to approve the resolution for Joyce and Keith LANGHEINRICH (ba- 11-03 (BA-11-05) which was seconded by Mr. Stamler. Votes in Favor: Mr. Jaghab, Mr. Valchek, Mr. Herbert, Vice Chairman Dietz and Chairperson Haines. Votes Against: None. 5
Correspondence None Adjournment The meeting adjourned at 9:08 p.m. Submitted by: David Kois Zoning Officer / Assistant Planner 6