LAND USE BOARD MINUTES by KTwU7PR9

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									                                 LAND USE BOARD MINUTES
                                     February 18, 2009

The Tewksbury Township Land Use Board met in a regularly scheduled meeting on the above date
in the Municipal Meeting Hall, 60 Water Street, Mountainville, New Jersey. The meeting was called
to order at 7:36 p.m.

Present: Blake Johnstone, Robert Hoffman, Dana Desiderio arrived at 7:50 p.m., Pino Blangiforti,
Bruce Mackie, Michael Moriarty (Alt. #1), Arnold Shapack (Alt. #3) and Eric Metzler (Alt. #4)

Also present: Daniel Bernstein, Land Use Board Attorney, William Burr, Land Use Board Engineer
and Randy Benson, Zoning Officer.

Absent: Mayor Louis DiMare, Mary Elizabeth Baird, Shirley Czajkowski, Elizabeth Devlin and Ed
Kerwin (Alt. #2).

There were approximately five (5) people in the audience.

OPEN PUBLIC MEETING ACT STATEMENT
        Mr. Johnstone opened the meeting by announcing that adequate notice of the meeting had
been provided by posting a copy thereof on the Police/Administration Building bulletin board,
faxing a copy to the Hunterdon Review and the Hunterdon County Democrat, and filing with the
Municipal Clerk, all on January 13, 2009.

CLAIMS

Mr. Johnstone asked the Board if there were any questions or comments regarding the following
claims to which the response was negative. Mr. Moriarty made a motion to approve the claims listed
below and Mr. Blangiforti seconded that motion. The motion carried by the following roll call vote:

Roll Call Vote:

Ayes: Mr. Johnstone, Mr. Hoffman, Mr. Mackie, Mr. Blangiforti, Mr. Moriarty, Mr. Shapack and
Mr. Metzler.

Nays: None

   1. Bernstein & Hoffman – General Land Use Work – Attendance at January 21, 2009 meeting
      – invoice dated January 22, 2009 ($525.00)
   2. Bernstein & Hoffman – Land Use Board Escrow – Murray (B12, L36) – invoice dated 2-10-
      09 ($810.00)
   3. Bernstein & Hoffman – Land Use Board Escrow – Wentworth (B32, L3.02) – invoice dated
      2-11-09 ($525.00)
   4. Suburban Consulting Engineers – Land Use Board Inspection – Oldwick Animal Hospital
      (B45, L28) – invoice #11310 ($121.26)
   5. Suburban Consulting Engineers – Land Use Board Inspection – Stickel (B37, L7) – invoice
      #11295 ($272.52)
   6. Maser Consulting – Land Use Board Escrow – Murray (B12, L36) – invoice #119528
      ($845.00)
   7. Maser Consulting – Land Use Board Escrow – Lance (B39, L1 & 28) – invoice #119529
      ($357.50)
   8. Maser Consulting – Land Use Board Escrow – DeFelice (B36, L3.18) – invoice #119530
      ($325.00)
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   9. Maser Consulting – Land Use Board Escrow – Woodstone Custom Builders (B15, L9.04)
       ($487.50)
   10. Maser Consulting – Land Use Board Escrow – Vilenchik (B12, L32) ($1,650.00)
   11. Maser Consulting – Land Use Board Escrow – Wentworth (B32, L3.02) ($617.50)

Correspondence

Mr. Johnstone asked the Board if there were any questions or comments regarding the following list
of correspondence to which the response was negative. A motion was made by Mr. Blangiforti and
seconded by Mr. Moriarty acknowledging receipt of the following items of correspondence. All
were in favor.

   1. Notice from Albert Preziosi regarding application to the NJDEP for an LOI for 45
       Vliettown Road, Block 43, Lot 2.02.
   2. Copy of a letter dated Feb. 2, 2009 to Stickel Properties from HCSCD regarding Block 37,
       Lot 7.11
   3. Copy of a letter dated Jan. 29, 2009 to Eckelmann Bros. Construction from HCSCD
       regarding Block 15, Lot 3.04.
   4. Copy of a letter dated Jan. 27, 2009 to Tewksbury Township from HCSCD regarding Bartles
       House, Block 44, Lot 22.
   5. Copy of a letter dated Feb. 5, 2009 to Hunterdon Co. Engineering Dept. from HCSCD
       regarding County Bridge T-36S.
   6. Letter from the Hunterdon County Planning Board dated January 26, 2009 regarding the
       2008 Planning and Design Awards Nominations.
   7. A letter from the Hunterdon County Planning Board regarding the 2009 Hunterdon County
       Breakfast Talks Program.
   8. Notice from Eastern States Environmental Associates dated Jan. 19, 2009 regarding Block
       23, Lot 29.01.
   9. Informatio from ANJEC regarding the 2009 Smart Growth Planning Grants for
       Municipalities.
   10. Copy of a letter dated Jan.20, 2009 from NJDEP to Hunterdon County regarding request to
       the NJDEP for Highlands Applicability Determination and Water Quality Management Plan
       Consistency Determination for County Bridge T-36-S and approach roadway of Black River
       Road over Lamington River.
   11. A report dated Feb. 10, 2009 from William Burr regarding Schmolze application, Block 6.04,
       Lot 12.
   12. A report dated Feb. 12, 2009 from William Burr regarding application No. 07-13,
       Yarusinsky, Block 15, Lot 12.

Minutes
    January 7, 2009

Mr. Blangiforti made a motion to adopt the minutes, seconded by Mr. Moriarty. All were in favor.
Robert Hoffman abstained.

Ordinance Report

Mr. Mackie reported on three (3) ordinances, two (2) from Readington Township and one (1) from
Washington Township. One of the Readington Township ordinances amended their Land
Development Ordinance to incorporate 300 foot buffers on C-1 Streams. Mr. Mackie did not have
any recommendations as Tewksbury’s ordinances already address the issues.

Public Participation
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Mr. Johnstone asked the public if there were any questions or comments regarding anything not on
the agenda.

Angela Holt, 2 Fox Hill Road, reminded the Board that on December 3, 2008 the JCP&L denial was
perfected. She noted that Mr. Johnstone indicated at that time that he would be willing to work with
JCP&L on an alternative site. She went on to explain that in the meantime, Neil Yoskin ran into
Don Lynch, the regional vice president for JCP&L and John Anderson and they both indicated that
they would be willing to seek an alternate site if the Township would work with them. Mrs. Holt
asked the Board to provide guidance on how to pursue that. Mr. Bernstein explained that if an
alternate site was found and agreed upon, JCP&L would appear before the Land Use Board for
approval. Mr. Bernstein counseled Board members not to get involved in the alternate site
discussions so as not to disqualify themselves from further proceedings. Mr. Bernstein and Mr.
Johnstone suggested talking to the Township Administrator.

Mrs. Holt also noted that a light went on at the cell tower building (across from the proposed
substation site) due to the power outage and the light was left on. Mr. Johnstone asked Mr. Benson
to look into the light issue.

There being no further comments from the public Mr. Johnstone closed the public portion of the
session.

Resolutions
    Resolution No. 09-06 – JCP&L, Appl. No. 07-26, Block 17, Lot 2 – Denial of application
      for conditional use, preliminary/final site plan and variances.
      Eligibility: Desiderio, Baird, Czajkowski, Blangiforti, Moriarty, Kerwin and Johnstone

Mr. Bernstein noted that the resolution was circulated to the Land Use Board’s professionals who
provided comments and also to Neil Yoskin, attorney for the opposition and John Beyel, attorney
for the applicant. Mr. Beyel requested a change to No. 19 (on page 8). Mr. Bernstein explained that
the revision requested does not impact the viability of the resolution. Mr. Bernstein read into the
record Mr. Beyel’s comments related to No. 19.

Mr. Johnstone asked the Board if there were any questions or comments regarding Resolution No.
09-06 to which the response was negative. Mr. Blangiforti made a motion to adopt Resolution No.
09-06 with the changes to No. 19 and Mr. Moriarty seconded that motion. The motion carried by
the following roll call vote:



                                      LAND USE BOARD

                                 TOWNSHIP OF TEWKSBURY

                                     APPLICATION # 07-26

                                     RESOLUTION # 09-06


               WHEREAS, JERSEY CENTRAL POWER & LIGHT, a FirstEnergy Company

(JCP&L) has applied to the Land Use Board of the Township of Tewksbury for a conditional use,

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preliminary and final site plan approval, variances under N.J.S.A. 40:55D-70c and 40:55D-70d, and

submission waivers for the construction of the “Califon substation” on property which is located on

Fox Hill Road and designated as Block 17, Lot 2 on the Tewksbury Township Tax Map, which

premises is located in the HL (Highlands) Zone, and

               WHEREAS, the initial request for submission waivers was presented by Attorney

John P. Beyel, Esq. of the firm of McElroy, Deutsch, Mulvaney & Carpenter, LLP; Civil Engineer

Arif R. Malick, PE of the firm of Malick & Schere, P.C.; and Scott Wirs, Transmission Vegetation

Management Specialist for FirstEnergy, at the January 3, 2008 Land Use Board meeting, and

               WHEREAS, at the January 3, 2008 meeting the Land Use Board granted certain

submission waivers and denied others, which decision was memorialized in Resolution 08-09 which

was adopted on February 6, 2008, and

               WHEREAS, the request for submission waivers was continued to the March 5, 2008

Land Use Board meeting, providing that revised plans were submitted ten days in advance of the

meeting, and

               WHEREAS, the applicant submitted revised plans within the statutory period, and

appeared at the March 5, 2008 Land Use Board meeting, and

               WHEREAS, at the March 5, 2008 Land Use Board meeting the application was

deemed complete subject to certain conditions, which was memorialized in Resolution 08-11 which

was adopted on March 19, 2008, and

               WHEREAS, the application for a conditional use, preliminary and final site plan

approval and variances under N.J.S.A. 40:55D-70c and 40:55D-70d was presented by Attorney John

P. Beyel, Esq. of the firm of McElroy, Deutsch, Mulvaney & Carpenter; LLP; Professonal Planner

Kevin O’Brien, P.P. of the firm of Shamrock Enterprises; Civil Engineer Arif R. Malick, P.E. of the

firm of Malick & Scherer, P.C.; Landscape Architect Joseph T. Savona, CLA of the firm of CME

Associates; and the following employees of JCP&L: Bernard Chernisky, P.E., specializing in

substation design and engineering; Bede Portz, environmentalist; John Anderson, Public Affairs

Manager; Dennis Pavagadhi, P.E., Manager of Engineering Services Northern, N.J.; Scott Wirs,
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Transmission Vegetation Management Specialist; John Scopino, P.E., Supervisor of Engineering

Services responsible for system planning; Richard Heffner, Supervisor of Metering and Technical

Support; and Tom Walker, Project Manager at the March 5, 2008, April 16, 2008, June 4, 2008, June

17, 2008, July 2, 2008, July 16, 2008, August 6, 2008, August 27, 2008, September 17, 2008, October

1, 2008, October 15, 2008, November 5, 2008, November 18, 1008, November 19, 2008, December

3, 2008, Land Use Board meetings, and

               WHEREAS, the application was opposed by Attorney Neil Yoskin, Esq. of the firm

of Sokol, Behut and Fiorenzo who represented Friends of Fairmount Historic District, and

               WHEREAS, the application was reviewed by Fire Chief David Steinel; Historic

Consultant Dennis Bertland; Land Use Board Engineer Melanie A. Reese, PE of the firm of Maser

Consulting P.A.; and Tewksbury Township Planning and Landscape Architect Consultant Carl E.

Hintz, P.P., CLA of the firm of Clarke Caton Hintz, and

               WHEREAS, the Board, after considering the testimony presented by the applicant,

attorney Neil Yoskin, the Land Use Board, and adjoining property owners and members of the

general public, and the Land Use Board professionals, has made the following factual findings:

               A.      The Subject Property.

               1.      The subject property is an irregularly shaped, vacant parcel containing 7.526

acres. It has 785.49 feet of frontage along Fox Hill Road. Along the northwestern side of the

property is a joint driveway which is the exclusive means of access for two flaglots, Lots 2.01 and

2.02 in Block 17.

               2.      The subject property is relatively flat.

               3.      Along the northwestern side of the property is a 150 foot wide JCP&L

transmission line easement.

               4.      The central portion of the property is constrained with wetlands of

exceptional resource value. Most of the balance of the property is within the wetlands transition

area. Planner Carl Hintz calculated the wetlands and transition area at more than 81% of the site.

The Board finds that Mr. Hintz’s calculation is correct. The applicant’s site engineer Malick said the
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wetlands constituted 60% to 70% of the site at the April 16, 2008 meeting and indicated the

wetlands were about 40% of the property at the July 2, 2008 meeting.

               5.      The sole areas of the property unconstrained by wetlands and wetlands

transition areas are on the northeast and northwest portion of the property along Fox Hill Road.

The northwest portion of the property is constrained with a 150 feet wide JCP&L transmission line

easement.

               B.      The Neighborhood

               6.      The subject property is within the Highlands Preservation Area.

               7.      Robin Love of the Residence Alliance, a local citizens group, testified on the

history of the neighborhood.      Fox Hill Road was the first road to connect Oldwick with

Germantown (Long Valley) and Fairmount. Fox Hill Road predates Old Turnpike Road. The road

is named after John Peter Fox who settled in Tewksbury around 1710 - 1720.

               8.      There are a number of historic homes in the neighborhood.

               9.      The neighborhood, including the subject property, is located within the

Fairmount Historic District which is on both the State and Federal Historic Registers.

               10.     There was a disagreement as to the composition of the neighborhood. The

applicant’s planner Kevin O’Brien presented photographs marked A-28 which showed the

neighborhood as consisting of scrub vegetation. Angela Holt, who resides at 2 Fox Hill Road

adjoining the subject property, presented a photograph marked H-1 of her home, and spoke of its

historic character. Attorney Neil Yoskin presented Exhibit Y-1 which contained photographs of the

homes of Jon and Angela Holt at 2 Fox Hill Road, circa 1800, the Pascale home at 5 Fox Hill Road,

circa 1870, the Close home at 5 Hollowbrook Road, circa 1860, the home at 1 Hollowbrook Broad,

circa 1860, the home at 3 Hollowbrook Road, circa 1875, the Weiss home at 8 Hollowbrook Road,

the Parman home at 10 Hollowbrook Road, the Hernick home at 4 Fox Hill Road and the Kalb

home at 6 Fox Hill Road.       The Hernick and Kalb properties are flag lots with the common

driveway adjacent to the western side of the subject property.


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                11.     The Board finds that Kevin O’Brien’s photographs and his testimony convey

an inaccurate picture of the neighborhood. The photographs presented by Angela Holt as H1 and

the photographs in Yoskin’s Y-1 accurately depict the homes and the neighborhood. Based on his

impression of the neighborhood, Planner O’Brien wrongly believed that Fox Hill Road was

improperly labeled a scenic road.

                12.     Fox Hill Road is not only designated as a Tewksbury Township scenic road

but, is consistent with the purposes of Scenic Road Ordinance 16-96:

               “a.     To identify a township-wide network of scenic and historic
            roads;
               b.      To protect, enhance, and, where appropriate, rehabilitate the
            aesthetic, cultural, and historic features of Tewksbury Township’s scenic
            roads, as so identified and listed in the records of Tewksbury Township;
               c.      To fulfill the goals and objectives of the State Development and
            Redevelopment Plan (SDRP), which was adopted in 1992 by the State
            Planning Commission pursuant to N.J.S.A. 52:18A-196 et seq.;
               d.      To enhance and protect the natural and visual values of these
            scenic and historic corridors by promoting the management of new growth
            and development in ways that complement the historic values associated
            with these corridors;
               e.      To establish safe and visually attractive corridors for the pursuit
            of passive recreation so important to the maintenance of the quality of life;
               f.      To ensure that the pastoral and rustic beauty and historic
            characteristics of the Township may be enjoyed in the present and in the
            years to come;
               g.      To discourage and prevent pollution of air, water, and land and
            other degradation of these important scenic and historic resources.”


                13.     Based on the photographs, the testimony, and the Board’s knowledge of the

area, the Board finds that the rural neighborhood consists of gracious and historic homes on well-

maintained and attractively landscaped lots, in bucolic settings.

                14.     Across Fox Hill Road from the property in question is the 112 acre Pascal

Park which is owned by Tewksbury Township. Located within the park are the stone ruins of a

Quaker meeting home, circa 1700’s.

                15.     Also located in the Park are the sole non-residential structures in the

neighborhood, a JCP&L tower with attached Sprint Nextel antenna and an equipment shed.

                C.      The Purported need for the Substation

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                16.     The purported need for the substation is provided in the environmental

impact statement prepared by Malick & Scherer, P.C. dated November, 2007 (E.I.S.) which was

presented to the Land Use Board:

                         “Pursuant to N.J.A.C. 14:1-11.1 et seq, Jersey Central Power and
             Light Company (JCP&L) maintains a Tariff for Service with the NJ Board
             of Public Utilities. In accordance with this tariff, JCP&L is required to use
             diligence to maintain regular and uninterrupted electric service to it’s
             customers that is both safe and reliable. As part of providing this service,
             JCP&L installs, operates and maintains electrical substations and
             transmission and distribution line facilities in its service territory. JCP&L
             has identified the need for an electrical substation located at the load center
             near the intersection of Routes 512 and 517 in Tewksbury Township,
             Hunterdon County.

                The electrical needs of the area are presently supplied by Chester, Glen
             Gardner, Greater Crossroads and Lebanon distribution substations fed
             from a combination of bulk transmission lines (230,000 volt or 230 KV)
             and sub-transmission lines (34,500 volt or 34.5KV). From 2002 to 2007
             the electrical demand in this area has increased approximately 20%. The
             demand for electricity has exceeded the capacity rating of the substation
             transformer at Chester and created planning criteria violations on the
             Chester, Glen Gardner and Lebanon feeders. Construction of the
             proposed substation fed from the 230 KV bulk transmission system is
             needed to respond to the increased demand for power in the area and to
             maintain regular and uninterrupted electric service to customers. This
             facility will enhance reliability of customer electric service and increase
             operational flexibility during outage situations by introducing new
             distribution circuits from this proposed substation.”

                17.     John Scopino testified at the April 16, 2008 meeting that the Califon

substation will “resolve overloads, improve the voltage profile, and there is an ancillary reliability

benefit.”

                18.     Fifty percent of the Chester substation serves Tewksbury Township. John

Scopino testified at the March 5, 2008 hearing that the Chester substation is operating at 133% of its

nameplate or design limit. At the June 4, 2008 meeting Dennis Pavagadhi testified that the Chester

substation was at 124% of its nameplate. Attorney Beyel in his summation on December 3, 2008

stated that the Chester substation was at 124% of its nameplate. John Scopino noted at the April 16,

2008 meeting that the Chester substation could be expanded. He claimed that the expansion would

not resolve reliability because of the distance to the load focus. The Board rejects this contention.

(See factual finding 25 herein).
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                  D.        JCP&L Site Selection Criterion

                  19.       General Public Utilities, the former parent of Jersey Central Power and Light,

articulated its site selection criterion in a document titled: “November 1, 1995 New Jersey Central

Power and Light Environmental Guidelines for the Design and Construction of a Transmission and

Distribution Lines and Substations.” The Guidelines provided in Section 3.1.4:

                  “If possible, locations should avoid schools, parks, scenic areas, wildlife
               refuges, hilltops and natural or man-made structures of historic or scenic
               value. Potential locations should also avoid sites adjacent to or located
               within areas identified on the New Jersey and National Registers of Historic
               Places. By regulation, impacts to historic sites include both direct as well as
               indirect impacts, such as modifications of the visual nature of the view shed
               of the historic site.”

                  These guidelines would have precluded the construction of a substation on Fox Hill

Road. However, these guidelines have not been used since General Public Utilities merged with

FirstEnergy Company.

                  20.       FirstEnergy does not have written guidelines for the placement of

substations.

                  21.       The three primary factors in site selection listed in the E.I.S. are:

                            1.     Proximity to the load center.
                            2.     Proximity to existing transmission
                  facilities.
                            3.     Impact to the environment, community
                            and surrounding properties.


                  22.       According to John Scopino, a substation should be under a 230 KV

transmission line, be proximate to a distribution system and close to the load center.

                  23.       The load center was described by John Anderson as the “epicenter of need.”

                  24.       After the April 16, 2008 Land Use Board meeting, a committee of JCP&L

employees compiled seven criterion for the location of a substation. The criterion were described in

a June 4, 2008 booklet which was presented to the Land Use Board:

                           “Proximity to Transmission Lines (power supply, large steel towers)

                            - Build underneath/adjacent to minimize community impact.

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                       Proximity to adequate Distribution Lines (The wires that are roadside, wood

                        poles)

                        - To be 1.5 miles or less of adequate Distribution to minimize

       community Impact.

                       Proximity to the Load Focus

                        - To be 1.5 miles or less

                       Environmental Considerations

                        - Threatened and endangered species

                        - Wetlands, streams and water bodies

                        - Vegetation impact, tree removal

                       Community Considerations

                        - Historic District, Tewksbury Scenic Roads

                        - Conservations restrictions (Green Acres, Farmland

       Preserved)

                        - Highlands Preservation Area

                       Suitability and Accessibility

                        - Close to road (Ice, snow, storms)

                        - Level Site

                        - Need access to maintain equipment

                       Availability of Property

                        - For Sale

                        - Easements”

              25.       The applicant’s witnesses were unable to justify the load focus at the

intersection of Routes 517 and 512 in northern Tewksbury. JCP&L did not take into account

Tewksbury Township’s Development Regulations Ordinance (DRO) in projecting future growth.

The load focus at the intersection of Routes 517 and 512 is within the 12 acre Highlands Zone and


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the Highlands Preservation Area. The load focus does not consider the greater growth in the

southern portion of the community. It was never satisfactorily explained why the substation had to

be 1-1/2 miles from the load focus, other than to say that it was company policy. The placement of

breakers/fuses every 1-1/2 miles was not a plausible justification. None of the witnesses could

explain the increase in outages if the substation were more than 1-1/2 miles from the load focus,

other than the danger of fallen trees or similar events interrupting service. It was conceded that the

construction of the Califon substation would not eliminate all outages. On occasion areas proximate

to a substation experience more outages than areas further from the substation.

                26.     While the site selection criterion included environmental considerations,

obviously these factors were not utilized when selecting the subject property which was found by

NJDEP in the LOI (Letter of Interpretation) to be comprised primarily of wetlands and wetland

transition areas of exceptional resource value.

                27.     Community considerations including “Historic District, Tewksbury Scenic

Roads . . . Highlands Preservation Area” were obviously ignored when the subject property was

selected. The subject property is located within a neighborhood of historic homes and is on both

the State and Federal Historic Registers. The site is on a Township scenic road. The subject

property is within the Highlands Preservation Area.

                28.     Planning and zoning considerations were irrelevant to the committee. There

were no land use criterion. The group did not include a professional planner.

                E.      The Proposal

                29.     The applicant proposes to construct the Califon substation on the subject

property.

                30.     The facility would be unmanned. Maintenance personnel will visit the site on

a monthly basis.

                31.     Noise levels from the substation would be less than 46 decibels at the

property line, which would be noticeable to neighbors, but would meet New Jersey standards for

residential neighborhoods.
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                32.       The purpose of the substation was explained by John Scopino of JCP&L at

the initial March 5, 2008 Land Use Board public hearing:

                 “Typically it starts at a generator which is far away, and then that power
             has to traverse a great distance on a transmission line, typically on
             transmission towers that are high voltage. Then it gets to a residential area.
             It needs to be transformed or stepped down to - - from a transmission line
             voltage to what we call a distribution line voltage that travels along the
             roads. Then it reaches your house. The transformer on the pole in front of
             your house further transforms that power to a serviceable 120 volts which
             powers the world we live in”.
                 Beyel “Q. That, as you’ve testified, is a location at which the power at
             higher levels is transformed or stepped down to a different level for
             distribution in a community.”
                 Scopino. “A. Right. In this case the transmission line is 230,000 volts.
             We are proposing to build a substation that transforms that.”

                33.       The initial application requested two “banks” which would each consist of a

switchgear, transformer, circuit breaker, disconnect switch, 65 foot tall dead end and bus structure

which are illustrated on Sheet 3 of 5 of the Malick & Scherer plans titled: “Califon Substation,

Equipment Elevations.”          The bank which was parallel to Fox Hill Road would be initially

constructed and the bank which was parallel to the northwest side of the property would be installed

in the future, when needed. Tom Walker of JCP&L testified at the October 1, 2008 meeting that

the company eliminated the future bank from the application. That testimony coincided with the

submission of revised plans showing wetlands more extensive than those depicted on the prior

plans, and a corresponding reduction in the size of the development footprint, as the second bank

was no longer feasible.

                34.       The transmission lines would be connected to the substation through the 65

foot tall dead end structure.

                35.       The applicant offered to construct a prefabricated concrete wall in front of

the property to buffer the substation. Historic consultant Dennis Bertland testified that the wall was

inappropriate for the historic district. The Historic Preservation Commission found the wall to be

inconsistent with the neighborhood. The Board finds that the wall would be a discordant structure

within neighborhood. Section 719B1 of the DRO limits fences and walls to a height of 4 feet in

front yards. At the suggestion of the neighbors, the wall was replaced on the plans with a fence.
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                   36.   The substation equipment would be placed on concrete pads within a 6 inch

deep gravel compound surrounded by a 7 foot tall vinyl clad chain link fence with an additional foot

of barbed wire, for a total height of 8 feet.

                   37.   Since the wetlands and wetlands transition areas occupy most of the site, the

proposed substation would have to be located close to Fox Hill Road. The equipment would be

setback between 70 feet 8 inches and 97 feet 1 inch from the road. The site plan states that the

equipment would have a minimum side yard of 50 feet. With the elimination of the second bank,

the side yard to the remaining bank is approximately 60 feet.

                   38.   A detention basin would be installed to the south of the compound.

                   39.   Water from the detention basin would flow offsite to the Rockaway Creek, a

c-1 trout propagation stream.

                   40.   The applicant submitted photographs to the Land Use Board of a substation

which was similar to the proposed Califon substation. Copies of the photographs are attached to

this resolution.

                   41.   Planner Hintz in his report and testimony properly characterized the

substation as a “heavy industrial use.”

                   F.    Required Variances

                   42.   The subject property is located in the HL Zone. The minimum lot size in

that zone is 12 acres. The subject property is undersized, containing 7.526 acres. The size of the lot

is grandfathered under Section 706F4 of the DRO.

                   43.   Pursuant to Section 709D1 of the DRO, public utilities are a conditional use

in the HL Zone. Section 801A of the DRO regulates public utility facilities with conditional use

requirements. Section 801A.5 of the DRO requires all public utility equipment, structures, and

buildings to have a minimum front yard setback of 100 feet and side and rear yard setbacks of 300

feet from adjacent residential uses and residential zones and 200 feet from adjacent non-residential

uses and non-residential zones.


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                44.      As noted in factual finding 37, the equipment will be setback between 70 feet

8 inches and 97 feet 1 inch from Fox Hill Road. This violates the minimum front yard setback of

100 feet for public utilities. The equipment will have a western side yard of approximately 60 feet

while the DRO requires public utilities to have minimum side yards of 300 feet to adjoining

residential uses. The failure to meet these conditional use standards requires variances under

N.J.S.A. 40:55D-70(3).

                45.      Section 801A.3 provides:

               “All equipment, structures, and buildings shall be screened from public
            view and from adjacent properties. . . . .All landscaping and other
            improvements comprising the buffer area shall be visually impervious after
            5 years of maturity and shall be maintained to provide an effective buffer in
            perpetuity. Landscaping which is dead, diseased or damaged by wildlife
            shall be replaced with landsaping which is of like maturity to that which was
            dead, diseased or damaged.”


                46.      The northwest portion of the property, where the substation is proposed, is

within a 150 feet JCP&L right-of-way. Within the easement are transmission wires. The Bureau of

Public Utilities (BPU) has controlled vegetation within the wire zone and the border zone. Landscape

Architect Savona defined both terms at the August 27, 2008 Land Use Board meeting:

                       “The wire zone is the area that fall just underneath the wires
            within the easement, so it usually falls from tower to tower and it is within
            the wire area.”

                       “The border zone is a distance from the wire zone to the outer
            portion of the right-of-way.”

                47.      At the inception of the JCP&L Public Hearings the BPU limited vegetation

to a maximum height of 3 feet in the wire zone and 15 feet in the border zone. There was testimony

at the September 17, 2008 meeting that the BPU was seeking input on vegetation standards and that

interim controls were the responsibility of the utilities. JCP&L limits vegetation to a height of 8 - 10

feet within the wire zone while retaining the 15 feet maximum in the border zone.

                48.      Attorney Yoskin noted at the October 15, 2008 meeting that a JCP&L flier

“Maintaining Site and Reliable Service FirstEnergy Forestry Services” states:


                                                    14
            “Tree removal is the preferred method for controlling mature trees taller
            than ten feet.”

               That statement exemplifies JCP&L’s attitude toward trees. Mr. Savona believed the

landscaping around the substation would be an “exception.”

               49.     As previously noted, the substation equipment will be placed close to both

Fox Hill Road and the adjoining northwest property line. The BPU and subsequent JCP&L

limitations on the height of landscaping insure that the buffering requirement in Section 801A.3

cannot be complied with. The failure to satisfy this provision requires an additional variance under

N.J.S.A. 40:55D-70d(3).

               50.     The maximum permitted height in the HL Zone is 35 feet. The 65 foot tall

dead end structure requires a variance under N.J.S.A. 40:55D-70d(6), as it exceeds the maximum

requirement by both 10 feet and 10%.                           51.    The applicant proposes 6.8%

lot coverage while the HL Zone limits lot coverage to 5%. The excessive lot coverage requires a

variance under N.J.S.A. 40:55D-70c.

               52.     The 8 foot tall fence in the front yard exceeds the maximum permitted height

of 4 feet. A variance is required under N.J.S.A. 40:55D-70c.

               F.      Analysis of Variances

               53.     The applicant’s attorney John Beyel contended that the application should be

considered as a request for an inherently beneficial use. Inherently beneficial uses are those which

clearly promote the public welfare such as schools, churches, medical facilities, and public housing.

An applicant for an inherently beneficial use which is prohibited in a zone need not prove special

reasons which is the positive criteria for a d variance under N.J.S.A. 40:55D-70d. However, the

negative criteria must be proven.

               54.     Our New Jersey Supreme Court in Smart SMR v. Fair Lawn Bd. of Adj., 152

N.J. 309, 324 (1998) ruled that in considering a variance for an inherently beneficial use, a land use

board should employ the four part test found in Sica v. Board of Adjustment of Tp. of Wall, 127

N.J. 152, 165-166 (1992):

                                                 15
                         “First, the [the local land use] board should identify the public
             interest at stake. Some uses are more compelling than others....Second, the
             Board should identify the detrimental effect that will ensue from the grant
             of the variance....Third, in some situations, the local board may reduce the
             detrimental effect by imposing reasonable conditions on the use. If so, the
             weight accorded the adverse effect should be reduced by the anticipated
             effect of those restrictions....Fourth, the Board should then weigh the
             positive and negative criteria and determine whether, on balance, the grant
             of the variance would cause a substantial detriment to the public good.”


                55.     Land Use Board Attorney Daniel S. Bernstein contended that the application

should be considered as variances from conditional use standards under N.J.S.A. 40:55D-70d(3) and

a height variance under N.J.S.A. 40:55D-70d(6).

                56.     Applicants for d(3) conditional use variances are not guaranteed approval, as

conditional uses are not appropriate at every site in a district.

                        “The conditional use constitutes a legislative recognition that
             certain types of use, while generally desirable, are not suitable for every
             location within the district . . .” PRB Enters. Inc. v. South Brunswick
             Planning Bd., 105 N.J. 1 (1987).

                        Judge Pressler stated in Exxon Co., U.S.A. v. Livingston Tp. in
             Essex Cty., 199 Super 470, 477 (App. Div. 1985) held:

                        “As we understand the nature of conditional uses, they are so
             classified because they have specific characteristics which make them
             unsuitable, in the planning sense, for indiscriminate location within the
             district.”

                57.     The leading case on d(3) conditional use variances is Square the Westwood

Zoning Bd. of Adjustment, 138 N.J. 285 (1994). The Court noted that a conditional use may be

appropriate in a zoning district, but not every property within the district. The special reasons for a

d(3) conditional use variance are set forth on pages 298 - 299 of the decision:


                        “We hold that the proof of special reasons that must be adduced
             by an applicant for a “d” variance from one or more conditions imposed by
             ordinance in respect of a conditional use shall be proof sufficient to satisfy
             the board of adjustment that the site proposed for the conditional use, in
             the context of the applicant’s proposed site plan, continues to be an
             appropriate site for the conditional use notwithstanding the deviations from
             one or more conditions imposed by the ordinance. That standard of proof
             will focus both the applicant’s and the board’s attention on the specific
             deviation from conditions imposed by the ordinance, and will permit the
             board to find special reasons to support the variance only if it is persuaded
                                                    16
              that the non-compliance with conditions does not affect the suitability of
              the site for the conditional use. Thus, a conditional-use variance applicant
              must show that the site will accommodate the problems associated with the
              use even though the proposal does not comply with the conditions the
              ordinance established to address those problems.”

                 58.     Height variances under N.J.S.A. 40:55-70d(6) were analyzed on the basis of

the Coventry Square test in Grasso v. Bor. of Spring Lake Hghts. 375 N.J. Super. 41, 153-53 (App.

Div. 2004):

                          “The ordinance from which plaintiffs seek a variance keeps
              residential structures relatively low, in all likelihood to preserve views of the
              skyline and trees, and to avoid the appearance of overcrowding that could
              result from a tall house on a small lot. As is the case with (d)(3) and (d)(4)
              variances, plaintiffs could prove special reasons for a height variance if they
              could persuade the Board that a taller structure than permitted by ordinance
              would nonetheless be consistent with the surrounding neighborhood. To
              establish special reasons, plaintiffs would need to demonstrate that the
              thirty-eight foot high structure would not offend any of the purposes of the
              thirty foot height limitation. See Square, supra, 138 N.J. at 298-99, 650 A.2d
              at 346-47 (permitting a showing that noncompliance with the condition set
              forth in the ordinance does not affect the suitability of the site for the
              proposed use); Randolph Town Ctr., supra, 324 N.J. Super. at 417, 735 A.2d at
              1168-69 (permitting a showing that the site will accommodate problems
              associated with a greater floor area ratio than permitted).
                          Plaintiffs would have to convince the Board that a thirty-eight
              foot high house would not be out of place in the neighborhood or degrade
              the appearance of the neighborhood by blocking views of trees or skyline,
              or by reason of its proximity to the street or excessive height, give the
              appearance of being out of character with other homes located on the
              ridge. Also relevant here would be proofs that a less tall, difference style
              house, such as a Cape Cod or a ranch, would have a more detrimental
              effect on the neighborhood than a two-story colonial.”


                 59.     JCP&L has not proven the positive criteria for the conditional use d(3) and

height d(6) variances. The evaluation of these variances under the Coventry Square yardstick is

whether the proposed use, with the deviations from the ordinance, is still suitable for the site. The

front and side yard setback requirements in Sections 801A.5 of the DRO are designed to separate

utility facilities from adjoining residences and public roads. The requirement in Section 801A.3 that

a landscape buffer will be visually impervious is designed to conceal the facility from the public and

the neighbors. The environmental constraints forces the substation to be placed close to Fox Hill

Road and the neighbors on the northwestern portion of the site. The location of the transmission

                                                     17
lines and the JCP&L easement intersecting Fox Hill Road prevent effective screening. It was

suggested by residents that a structure be placed around the substation, and possibly a silo around

the dead end structure, which would be consistent with the rural development of the neighborhood.

It was noted that structures have been placed around other electrical substations. This request was

flatly rejected by JCP&L.

                While public utility facilities are a conditional use in the HL Zone, the subject

property is one of those sites where the facility is unsuitable.

                60.     Assuming arguendo that the proposed substation is an inherently beneficial use,

the Board would employ the four part Sica test. JCP&L presented uncontroverted evidence that

there is a need for additional electric service in Tewksbury Township. While the Board accepts this

testimony, it rejects the claimed load center at the intersection of Routes 512 and 517, and the

necessity of constructing a substation on Fox Hill Road. The impact of the substation close to the

road and the adjoining residential lots, with ineffective screening, would be devastating to the

neighborhood. The suggested mitigation of enclosing the substation within a structure was rejected.

The Board finds that the applicant has not met the Sica test.

                61.     All applicants for variances, including those for inherently beneficial uses,

must satisfy the negative criteria that the approval “will not cause substantial detriment to the public

good and will not substantially impair the intent and purpose of zone plan and zoning ordinance.”

                62.     William Cox in his authoritative New Jersey Zoning and Land Use

Administration, 2008 Edition, Gann Law Books, in Section 8-2.7 at p. 244 states:

                        “Specifically N.J.S. 40:55D-70c was amended to add language to
             the effect that ‘the fact that a proposed use is an inherently beneficial use
             shall not be dispositive of a decision on a variance under this subsection.’
             N.J.S. 40:55D-70d was amended to provide that:
                        ‘No variance or other relief may be granted under the terms of
             this section including a variance or other relief involving an inherently
             beneficial use, without a showing that such variance or other relief can be
             granted without substantial detriment to the public good and will not
             substantially impair the intent and the purpose of the zone plan and zoning
             ordinance. [underline indicates language added by the amendment].’”




                                                    18
                  63.      The application does not meet the first prong of the negative criteria that the

application “will not cause substantial detriment to the public good.” Inherent in the conditional

use requirements of a 100 foot front setback, a 300 feet side yard from residences, and the necessity

of an impervious landscape buffer are the separation and concealing the substation “heavy industrial

use” from residential neighbors. Even if one were to disregard the conditional use requirements, it

would not make planning sense to place the substation in the middle of an attractive, historic, and

bucolic residential neighborhood. The proposed substation will be a discordant feature which will

cause substantial detriment to the public good. The impact of the transmission towers in the

neighborhood are not comparable to the proposed substation. The towers are open and frequently

found in residential neighborhoods.              Substations are stark, solid, intrusive, and as testified by

Planner Hintz, must be heavily screened from residential uses.

                  64.      The second prong of the negative criteria is that the application will not

cause substantial detriment to the zone plan or zoning ordinance of the community. The purposes

of the Tewksbury Township DRO are found in Section 200, which is similar, but not identical, to

the purposes of the Municipal Land Use Law found in N.J.S.A. 40:55D-2. Those provisions which

are appropriate to the JCP&L application are:

                         “A.     Encourage action that will guide the appropriate use or
              development of all lands in this State, in a manner which will promote the
              public health, safety, morals and general welfare, while acknowledging the
              State Development and Redevelopment Plan;”


                    An electrical substation is not an appropriate use on the subject property. It will denigrate the
general welfare of the community.

                         “J.     Retain, through careful planning, open spaces and the
              aesthetic beauty of the Township;”

                  The proposed substation, with inadequate setbacks from the road and adjoining residences, and
minimal screening, will constitute a blight.

                         “L.     Identify and preserve historic structures, landmarks,
              hamlets and villages with design standards that will respect the Township’s
              history and rural character;”

                  The proposed electrical substation will be a discordant facility in the Fairmount Historic District.

                                                          19
                          “S.     Promote a desirable visual environment through creative
              development techniques and good civic design and arrangement; and, in
              particular, provide large wooded areas and open spaces as one approaches
              the villages in the Township;”

                  The proposed substation will promote an unsightly visual environment.

                        “T.     Promote the conservation of historic sites and districts,
              open space, energy resources, and valuable natural resources in the State
              and to prevent urban sprawl and degradation of the environment through
              improperly use of land. (Ord. 11-2000(part), 2000).”

                  The proposed electrical substation will be a discord and a heavy industrial use in an established and
recognized Historic District.

                  65.      The Board affords no credibility in the testimony of Planner Kevin O’Brien

for the reasons expressed in factual findings 11 and 12 herein. Furthermore, his comments on the

negative criteria are implausible. In response to a question from Board Chairman Johnstone, Mr.

O’Brien opined that the surrounding properties would not be economically or detrimentally

impacted by the proposed substation. His rationale was that:

                  “This is an allowed used of the zone.”

                  Mr. O’Brien further declared:

                  “I believe that the deviance from the ordinance is minimal.”

                  Contrast Mr. O’Brien’s blatant support of his clients position with the forthright

answer of JCP&L environmentalist Bede Portz at the July 16, 2008 meeting:

                         “Q.     You would agree with me that by putting in the
              substation that you’re talking about, based upon the pictures that I have
              even which are identical or a similar nature, you would agree with me that
              the structure that you’re planning on putting there is out of character for
              the area?

                           A.       Yes.”

                  66.      Planner Carl Hintz made a thorough analysis of the requested variances and

their impacts in his November 19, 2008 report and in his December 3, 2008 testimony. The Board

finds Planner Hintz, who was the long-time Township Planner who prepared the Tewksbury

Township Master Plan and Zoning Ordinances, to be highly credible.




                                                          20
                 67.    The applicant’s failure to satisfy the second prong of the negative criteria is

further substantiated by the neighborhood being located in the Highlands Preservation Area, within

the Fairmount Historic District, which is on both the State and Federal register, with the subject

property being located on a Tewksbury Township scenic road.

                 68.    The Land Use Board finds that the applicant has failed to prove the positive

criteria for the d(3) and d(6) variances. Alternatively, the Board finds that the applicant has failed to

meet the four part Sica test for an inherently beneficial use.

                 69.    The Board finds that the applicant has failed to prove the negative criteria.

                 70.    Since JCP&L has failed to provide either the positive or the negative criteria

of N.J.S.A. 40:55D-70d, the Board need not consider the variance request under N.J.S.A. 40:55D-

70c or the application for preliminary and final site plan approval.

                 71.    The Hernick and Kalb families were concerned about a fire or explosion at

the substation blocking access to their homes.          Attorney Yoskin in Exhibit Y-1 and in his

summation discussed the potential for substation fires and the consequence of said fires. The

concern is exacerbated by the proximity of the substation equipment to the Hernick and Kalb

common driveway, in violation of the side yard setback for public utilities. Because of the Board’s

findings and conclusions on the requested d variances, it need not make detailed findings nor solicit

expert testimony on the fire safety issue.

                 NOW THEREFORE BE IT RESOLVED, by the Land Use Board of the

Township of Tewksbury on this 18th day of February 2009 that the application of Jersey Central

Power and Light a FirstEnergy Company be denied.



Roll Call Vote

Those in Favor: Ms. Desiderio, Mr. Blangiforti, Mr. Moriarty and Mr. Johnstone

Those Opposed: None

     Resolution No. 09-07 – Murray, Appl. No. 08-03, Block 12, Lot 26 – Approval of Bulk
      Variance (Lot Coverage)

                                                   21
        Eligibility: Mrs. Baird, Mr. Mackie, Mrs. Devlin, Mrs. Czajkowski, Mr. Blangiforti, Mr. Moriarty, Mr.
        Kerwin, Mr. Shapack, Ms. Desiderio and Mr. Metzler

Mr. Johnstone asked the Board if there were any questions or comments regarding Resolution No.
09-07 to which the response was negative. Mr. Blangiforti made a motion to adopt Resolution No.
09-07 and Ms. Desiderio seconded the motion.

                                          LAND USE BOARD

                                    TOWNSHIP OF TEWKSBURY

                                        APPLICATION # 08-03

                                         RESOLUTION #09-07


                WHEREAS, SEAN MURRAY has applied to the Land Use Board of the Township

of Tewksbury for permission to construct a single-family residence on property which is located at

37 Philhower Road and designated as Block 12, Lot 36 on the Tewksbury Township Tax Map,

which premises is located in HL (Highland) Zone, and

                WHEREAS, the application was presented by Attorney James F. Clarkin, III, Esq. of

the firm of Clarkin & Vignuolo, P.C.; Civil Engineer James J. Chmielak, Jr. P.E. of the firm of

Engineering & Land Planning Associates, Inc.; and Sean Murray at the January 7, 2009 Land Use

Board meeting, and

                WHEREAS, the application was reviewed by Land Use Board Engineer William H.

Burr, IV, P.E. of the firm of Maser Consultants, P.A.. and

                WHEREAS, the Board, after considering the evidence presented by the applicant

and Mr. Burr, has made the following factual findings:

                A.      The Subject Property,

                1.      The subject property is an irregularly shaped 5.77 acre parcel with 314.75 feet

of frontage on Philhower Road.

                2.      Along the entire northern sideyard of 563.31 feet is a 50 feet wide right-of-

way for access to neighboring parcels.

                3.      Within the right-of-way is a 12 feet wide driveway referred to as Winterwood

Road.
                                                     22
                4.      The parcel is improved with a 1950’s ranch style home with driveway access

to Philhower Road.

                5.      Aside from the existing and proposed improvements, the subject property is

utilized for a Christmas tree farm.

                B.      The Proposal.

                6.      The applicant proposes to remove the existing home, detached garage and a

portion of the existing driveway, and to construct a Dutch Colonial style home, with a stone façade,

comparable to the other homes in the area. Access to the new home would be from the existing

driveway to Philhower Road. Located at the driveway entrance off of Philhower Road would be

four decorative concrete piers (pillars).

                7.      The septic system was expanded to serve the new home. However, a new

septic tank and connector pipe must be installed.

                8.      Patios, walkways, and an 800 square foot free-form swimming pool are

planned in back of the residence.

                9.      The applicant plans to construct the new home within one year, as required

by the DRO (Development Regulations Ordinance), but requested a three year period for the

construction of the swimming pool.

                C.      Required Variances

                10.     The subject property contains 5.77 acres while the minimum lot size in the

HL Zone is 12 acres. The lot is grandfathered under Sections 706F.2&4 of the DRO which provide:

                         “2.      Any lawfully created parcel of land, at least three (3)
             acres in lot area, with a lot width of at least 225 feet, and a lot depth of at
             least 300 feet, in the HL Highlands District, LT Lamington District, FP
             Farmland Preservation District, or PM Piedmont District:
                         a.       Which has a lot area less than that now prescribed for a
             lot in the District in which such parcel is located, and
                         b.       Which was and in existence at the time of the adoption
             of any zoning ordinance regulation of this Township [including the zoning
             regulations of the Tewksbury Township Development Regulations
             Ordinance (2002), and any amendment thereto], by which the minimum lot
             area applicable thereto was increased so as to exceed the area of such
             lawfully created parcel of land, may be used for single-family dwelling
             purposes as a principal use; any single-family dwelling or accessory
                                                    23
            structure to it thereon may be enlarged, and any single-family dwelling or
            accessory structure to it thereon which shall accidentally be destroyed may
            be replaced in the same location as it occupied on the lot immediately prior
            to said accidental destruction, and shall not constitute a non-conforming
            use or structure, provided that:

                                               *****

                4.      As to a parcel complying with the provisions of subsection (F)(2)
            of this Section, which has a lot area of at least 5 acres, in lieu of the
            minimum front yard, minimum side yard, minimum rear yard, maximum lot
            coverage and maximum floor area ratio now prescribed for the District in
            which the parcel is located, the following shall apply:
                        (a)     Front yard. The front yard shall be at least 100 feet in
            depth.
                        (b)     Sideyard. Each principal building shall be provided with
            a side yard, each at least 50 feet in width.
                        (c)     Rear yard. Each principal building shall be provided
            with a rear yard at least 50 feet in depth.
                        (d)     Maximum lot coverage. The maximum lot coverage
            shall be 5%.
                        (e)     Floor area ratio. A floor area ratio requirement shall not
            apply.”

               11.     The construction of the new single-family dwelling and swimming pool, and

the removal of the existing dwelling, detached garage and a portion of the driveway will increase

impervious lot coverage from 6.9% to 8.3%, while the Zoning Ordinance limits total impervious lot

coverage to 5%. The applicant agreed to provide stormwater management facilities which would

reduce the runoff to that produced by 5% lot coverage

               12.     At the request of Board Members, the applicant agreed to reduce total

impervious lot coverage to 8%.

               D.      Justification for Variance.

               13.     The requested variance is justified under N.J.S.A. 40:55D-70c(1)(c) on the

basis of a practical difficulty and undue hardship emanating from the right-of-way and Winterwood

Road, which serve other lots, being located on the subject property.

               14.     The requested variance is further justified under N.J.S.A. 40:55D-70c(1) on

the basis of the size of the subject property and the size of new homes which are currently being

constructed in Tewksbury Township. Had the parcel been less than 5 acres, the permitted lot


                                                     24
coverage under Section 706F3.(d) would be 6% for a 5 acre lot, 7% for a 4 acre lot, and 8% for a 3

acre lot.

                15.    The requested variance is also justified under N.J.S.A. 40:55D-70c(2) on the

basis of the promotion of the following purpose of the Municipal Land Use Law (MLUL) under

N.J.S.A. 40:55D-2:

                       “i.   To promote a desirable visual environment through
            creative development techniques and good civic design and arrangements;”

                This purpose of the MLUL will be promoted by the removal of a functionally

obsolete residence and the construction of an attractive new home.

                The benefits from the deviation will substantially outweigh any detriments.

                16.    The size of the subject property is similar to other lots in the neighborhood.

                17.    The proposed new dwelling will have a footprint of 3,853 square feet which

the Board finds is not unreasonable for the subject property.

                18.    The limitation on impervious lot coverage is designed to control water runoff

and to promote aesthetics.

                19.    The applicant has agreed to reduce total impervious lot coverage to 8% and

to provide stormwater management facilities which would reduce the runoff to that produced by 5%

lot coverage.

                20.    Since the proposed home and driveway will be located about 300 feet from

Philhower Road and buffered from neighboring properties by existing vegetation, the additional lot

coverage will not present any aesthetic impairment.

                21.    The requested relief can be granted without substantial detriment to the

public good and without impairing the intent and purpose of the zone plan and zoning ordinance of

the Township of Tewksbury.

                NOW, THEREFORE be it resolved by the Land Use Board of the Township of

Tewksbury on this 18th day of February 2009 that the application of Sean Murray be approved in

accordance with an engineering plan titled: “Project: Murray Residence 37 Philhower Road Lot 36

                                                 25
Block 12 Tewksbury Township Hunterdon County New Jersey, Titled: Variance Plan”, prepared by

Engineering & Land Planning Associates, Inc. on August 5, 2008 and revised on November 12,

2008, consisting of two sheets and architectural plans titled: “Project: Proposed Residence For:

Mr. & Mrs. Sean M. Murray Township of Tewksbury, Hunterdon County, New Jersey” prepared by

NOVA Architecture Inc., on November 10, 2008 consisting of 5 sheets subject, however, to the

following conditions:

               1.       Conditions recommended by Land Use Board Engineer William H. Burr, IV,

P.E. in his report of January 2, 2009, as modified by the Planning Board:

                                              “
   1. “N/A.

   2. Based on the submitted plan, the existing septic system is being modified to connect
      to the proposed dwelling. Although no septic system expansion is proposed, the
      Hunterdon County Board of Health must approve the septic system alteration.

   3. The plans appear to propose four (4) concrete piers at the driveway entrance along
      Philhower Road with proposed light fixtures mounted to each pier. According to
      Section 719(B)(f) of the Tewksbury Development Regulations gates and pillars may
      not exceed eight (8) feet in height. The plans shall be revised to reflect this. In
      addition, information must be provided on the plans to confirm that the proposed
      lighting will comply with the Ordinance requirements.

   4. The Proposed Lot Coverage Calculations listed on the submitted plan define the
      proposed lot coverage as 8.3%; however, the Bulk Requirements Schedule indicates a
      Maximum Lot Coverage of 8.2%. This discrepancy should be clarified on the plans.
      In addition, there appears to be other discrepancies between the Existing and
      Proposed Lot Coverage Calculations listed in the table on the plans versus the areas
      labeled on the plan view. The applicant’s engineer should review this to confirm that
      all calculations are correct.

   5. If the variance is approved, a Grading and Surface Water Management Plan
      (GSWMP) will need to be submitted to the Lane Use Administrator for review by
      the Township Engineer prior to the Construction Permit application. The plan
      should comply with Chapter 13.12 of the Township Code of Ordinances. According
      to Note #2 of the “Site Notes” section on the plans, drywell systems will be
      provided on the Grading and Surface Water Management Plan (GSWMP) to address
      the additional runoff. ”

               2.       The applicants shall provide stormwater management facilities which would

reduce the runoffs to that produced by 5% lot coverage to the approval of the Township Engineer.




                                                  26
                3.     Before obtaining a building permit, the applicants must submit and receive

approval from the Township Engineer for a grading and surface water management plan

incorporating the requirements of Conditions Nos. 1.5 and 2 and satisfy Condition No. 7 herein.

                4.     The variance for the new residence must be utilized within one year from the

date of this memorialization resolution and the construction of the swimming pool, patios and

walkways shall be utilized within three years of the approval of this memorialization resolution or

the variance shall be void and have no further effect.

                5.     The applicant shall comply with all rules, regulations, ordinances and statutes

of the Federal, State, County and local municipal governments that may apply to the premises. The

applicant shall submit a letter to the Land Use Administrator certifying compliance with the

aforementioned rules, regulations, ordinances and statutes.

                6.     This resolution and the issuance of a certificate of occupancy hereunder is

conditioned upon the applicant paying all escrows and fees including a Growth Share and/or

Affordable Housing Fee.

                7.     The applicant shall file a deed restriction to the approval of the Land Use

Board Engineer and the Land Use Board Attorney requiring:

                a.     The continued maintenance of the grading and surface water management

plan required in Condition 2.

                8.     The plans shall be revised by the reduction of total impervious lot coverage

to 8%.

                9.     The plans shall be revised within 90 days hereof to the approval of the Land

Use Board.

                10.    The swimming pool is to meet all requirements in the DRO and all other

Tewksbury Township requirements.

                11.    The applicant shall comply with all Tewksbury Township lighting

requirements.


                                                  27
                 12.   The existing residence, detached garage, and driveway must be removed and

the material carted off site prior to the issuance of a Certificate of Occupancy for the new residence.

                 13.   The new driveway need be 12 feet wide unless a waiver is obtained from the

Township Engineer.

                 14.   The applicant will pay all required fees and escrows, including a Growth

Share and/or Affordable Housing Fee.

Roll Call Vote

Those in Favor: Mr. Mackie, Mr. Blangiforti, Mr. Moriarty, Mr. Shapack, Mr. Metzler and Ms.
Desiderio

Those Opposed: None


    Resolution No. 09-08 – Wentworth, Appl. No. 08-02, Block 32, Lot 3.02 – Approval of
     Bulk Variance (Side Yard Setback)
     Eligibility: Ms. Desiderio, Mayor DiMare, Mrs. Baird, Mr. Mackie, Mrs. Devlin, Mr. Moriarty, Mr.
     Kerwin and Mr. Shapack

Mr. Johnstone asked the Board if there were any questions or comments regarding Resolution No.
09-08 to which the response was negative. Ms. Desiderio made a motion to adopt Resolution No.
09-08 and Mr. Mackie seconded that motion.


                                        LAND USE BOARD

                                  TOWNSHIP OF TEWKSBURY

                                      APPLICATION # 08-02

                                       RESOLUTION #09-08


                 WHEREAS, ERIC WENTWORTH has applied to the Land Use Board of the

Township of Tewksbury for a variance under N.J.S.A. 40:55D-70c and a submission waiver for the

construction of a detached garage on his residential lot which is located at 100 Bissel Road on

property designated as Block 32, Lot 3.02 on the Tewksbury Township Tax Map, which premises is

located in HL (Highland) Zone, and




                                                  28
                WHEREAS, Land Use Board Engineer William H. Burr, IV, P.E. of Maser

Consulting, P.A. stated at the January 7, 2009 Land Use Board Meeting that a submission waiver was

not required, as the previously missing information was provided on a note to the plans, and

                WHEREAS, the request for a bulk variance was presented by Eric Wentworth and

Architect Robert C. Eckman, R.A. at the January 7, 2009 Land Use Board meeting, and by Attorney

Stephen O’Malley of the firm of Weinstock and O’Malley; Eric Wentworth; and Architect Robert C.

Eckman, R.A. at the January 21, 2009 Land Use Board meeting, and

                WHEREAS, the applicant’s personal vehicles are parked in a garage under his home,

and

                WHEREAS, the applicant proposes to construct a 24 feet by 40 feet detached

garage, 20 feet 8 inches tall, at the end of his paved parking area in order to house his antique cars,

and

                WHEREAS, the applicant characterized the appearance of the garage as being like a

carriage house with a peaked roof, asphalt shingles and HardiePlank siding, and

                WHEREAS, a second story was added to the garage solely for aesthetic purposes

and it will not be used as living space, and

                WHEREAS, the detached garage would have a side yard of 20 feet while the DRO

(Development Regulations Ordinance) requires a minimum side yard of 40 feet, and

                WHEREAS, the detached garage cannot be moved farther away from the side yard

without covering an existing well, and

                WHEREAS, the Tewksbury Township Board of Health denied the applicant’s

request to construct a garage over the well, and

                WHEREAS, the proposed location of the structure is one of the flatter areas on the

subject property and the movement of the structure further back would require substantial grading,

and




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                WHEREAS, there is a practical difficulty and undue hardship by reason of the

unusual shape of the subject property, having frontage of 225.1 feet and side yards of 752.23 feet

and 868.35 feet, and

                WHEREAS, the adjoining neighbor to the east, Anton Leidner of 98 Bissel Road,

whose home is over 120 feet from the proposed garage, had no objection to the application, and

                WHEREAS, Mr. Leidner noted there were existing large Evergreen trees on his

property which would buffer the garage, and

                WHEREAS , the requested relief can be granted without substantial detriment to the

public good and without substantially impairing the intent and purpose of the zone plan and zoning

ordinance of the Township of Tewksbury.

                NOW, THEREFORE be it resolved by the Land Use Board of the Township of

Tewksbury on this 18th day of February 2009 that the request of Eric Wentworth for a bulk variance

be approved in accordance with a survey titled: “Lands of Wentworth Plot Plan Variance for

Proposed Garage Block 32 Lot 3.02 Township of Tewksbury - Hunterdon County New Jersey”

prepared by Thomas L. Yager & Associates on October 27, 2008 consisting of one sheet and

architectural plans titled:   “Detached Garage at:        Wentworth Residence, 100 Bissel Road,

Tewksbury, NJ” prepared by Robert C. Eckman Architect on October 2, 2007 consisting of two

sheets subject however to the following conditions:

                1.      The small shed on the western (left) side of the property shall be moved to a

conforming location and the shed on the east (right) side of the property shall be removed and the

material carted off site prior to the issuance of a Certificate of Occupancy for the detached garage.

                2.      The use of the second floor of the detached garage shall be restricted to

storage and shall not be used as living space.

                3.      The variance for the detached garage must be utilized within one year from

the date of this memorialization resolution or the variance shall be void and have no further effect.

                4.      The applicant shall comply with all rules, regulations, ordinances and statutes

of the Federal, State, County and local municipal governments that may apply to the premises. The
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applicant shall submit a letter to the Land Use Administrator certifying compliance with the

aforementioned rules, regulations, ordinances and statutes.

                 5.    This resolution and the issuance of a certificate of occupancy hereunder is

conditioned upon the applicant paying all escrows and fees.


Roll Call Vote

Those in Favor: Mr. Mackie, Mr. Moriarty, Mr. Shapack and Ms. Desiderio

Those Opposed: None

Completeness/Public Hearing
   Yarusinsky
     Application No. 07-31
     Block 15, Lot 12
     Front Setback Variance

Mr. Johnstone indicated that the Board needed to consider the application for completeness. Mr.
Burr recommended that the application be deemed complete. Ms. Desiderio made a motion to
deem Application No. 07-31 complete, Mr. Mackie seconded the motion. All were in favor.

Jeff Yarusinsky and Jonathon Booth were sworn in by Mr. Bernstein. Mr. Bernstein recommended
accepting Mr. Booth as a registered architect.

Mr. Yarusinsky explained that they would like to build a second story on the existing one story ranch
and a new garage on a 45 degree angle from the home. Mr. Yarusinsky explained what currently
exists on the property and noted that the south eastern corner of the existing structure currently
violates the front setback. Mr. Yarusinsky presented a model of the home that was prepared by the
architect. The model was marked as Exhibit A-1; Mr. Bernstein noted that the Board did not need
to keep the exhibit.

Mr. Booth distributed a plan showing the frontage along Sawmill Road which was marked as Exhibit
A-2 and made part of the record. Looking at Exhibit A-2 Mr. Johnstone asked if the stairs depicted
were being added or if they already exist. Mr. Yarusinsky explained that they are being added. Mr.
Booth explained that the proposed porch will encroach on the front setback.

Mr. Bernstein discussed with Mr. Booth the various setbacks dimensioned on Exhibit A-2. Mr.
Johnstone asked Mr. Booth to clarify that the house is not being enlarged in the area where the pre-
existing non-conformity exists, to which Mr. Booth responded in the positive.

Mr. Benson noted that Ms. Goodchild mentioned the need for a NJDEP permit regarding the
proximity to the C-1 Buffer. Mr. Johnstone noted that Mr. Burr covered that in his review letter and
asked the applicant to confirm that they would agree to the recommendations outlined in Mr. Burr’s
letter dated February 12, 2009. Mr. Yarusinsky agreed to comply with the recommendations in Mr.
Burr’s letter of February 12, 2009. Mr. Booth explained that subsequent to the last appearance
before the Land Use Board the applicant’s engineer and environmental consultant collaborated,
visited the site and surveyed the spur of Rockaway Creek that impacts this property. The C-1
Riparian buffer impacts this parcel of land and the proposed disturbance within the buffer will be

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addressed through a permit by rule with the NJDEP. Mr. Burr concurred and noted that a permit
by rule is a simple process with the NJDEP prior to construction.

Mr. Mackie noted the disturbance within the buffer but questioned the symbology shown next to
the proposed stone rip rap outlet. Mr. Booth, looking at page 4 of 6, opined that it was a limit of
disturbance line. Mr. Mackie asked where the water will go once it leaves the rip rap area and begins
to travel down the hill, noting that it appears that it will drain onto the roadway. Mr. Burr explained
that the area he referenced is an overflow from the drywell in the event the drywell clogs or ceases
to function. Water would not come out of the pipe unless the drywell fails. Mr. Johnstone
suggested including a condition of approval that the drywell needs to be properly maintained in
perpetuity so water does not run onto Sawmill Road.

Ms. Desiderio asked about the existing entrance and if the existing steps encroach on the setback to
which Mr. Booth responded in the positive.

Mr. Moriarty asked about the space above the garage to which Mr. Yarusinsky explained that the
Master Bedroom is proposed above the garage.

Mr. Benson asked that the plan be revised to show the dimension from the first riser on the
proposed step to the front setback line. Mr. Metzler noted that it is important to see it
demonstrated on the plan so they get the relief they need. Mr. Booth stated that the most relief they
would need is 65.0 feet.

There being no further questions, Ms. Desiderio made a motion to approve Application No.07-31,
with the recommendations as stated by the Board and the LUB Engineer and Attorney. The motion
was seconded by Mr. Blangiforti. The motion carried by the following roll call vote:

Ayes: Ms. Desiderio, Mr. Hoffman, Mr. Mackie, Mr. Blangiforti, Mr. Moriarty, Mr. Shapack, Mr.
Metzler and Mr. Johnstone

Nays: None

Miscellaneous

Mr. Bernstein indicated that he spoke with Ms. Goodchild and the Board will be discussing
impervious coverage at the March 4, 2009 meeting and she has asked the Board Planner to attend.
Mr. Johnstone asked everyone to be prepared to discuss this issue. Mr. Bernstein noted that he has
heard of at least one town that requires a yearly inspection, and fee, to ensure that dry wells are
being maintained.

Mr. Mackie asked Mr. Burr if he could investigate whether his colleagues have an opinion on
mitigating infiltration (for example if a property is over by 8% but construct mitigation to reduce it
to the equivalent of what is permitted by ordinance). There was a discussion regarding using
pervious materials and Mr. Benson noted that it is difficult to enforce.

Mr. Mackie announced he is organizing the annual well testing program and the drop off dates will
be May 18th and May 20th.

Mr. Shapack asked about the status of the JCP&L appeal and Mr. Johnstone gave a brief update.

Adjournment


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There being no further business, the meeting adjourned at 8:45 p.m. by motion of Mr. Moriarty and
seconded by Mr. Metzler.

Respectfully submitted,



Shana L. Goodchild
Land Use Administrator




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