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BERNARDS TOWNSHIP BOARD OF ADJUSTMENT

MINUTES Regular Meeting August 8, 2012

The Chair, Mr. Orr, called the meeting to order at 7:36 p.m.

ROLL CALL: Members present: Harris, Piedici, Ross, Alper, Carlucci, Orr Members late: Rhatican (7:47 p.m.)

Members absent: Plaza, Vogt (Mr. Plaza’s and Mr. Vogt’s absences excused) Board Attorney Steven Warner, Esq. and Board Planner David Schley were also present.

OPEN MEETING STATEMENT “In accordance with the requirements of the Open Public Meetings Law, notice of this regular meeting of the Board of Adjustment of the Township of Bernards was posted on the bulletin board in the reception hall of the Municipal Building, Collyer Lane, Basking Ridge, New Jersey, was sent to the Bernardsville News, Bernardsville, NJ, and the Courier News, Bridgewater, NJ, and was filed with the Township Clerk all on January 5, 2012 and was electronically mailed to all those people who have requested individual notice. “The following procedure has been adopted by the Bernards Township Board of Adjustment. There will be no new cases heard after 10:00 p.m. and no new witnesses or testimony heard after 10:30 p.m.”

APPROVAL OF MINUTES The motion was made by Ms. Piedici and seconded by Mr. Harris to approve the minutes of July 12, 2012, regular meeting, as drafted. Roll call: Aye: Harris, Piedici, Ross, Alper, Carlucci, Orr Motion carried

The motion was made by Mr. Ross and seconded by Ms. Alper to approve the minutes of the closed session of July 12, 2012 as drafted. Roll call: Aye: Harris, Piedici, Ross, Alper, Carlucci, Orr Motion carried

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APPROVAL OF CHARGES AGAINST ESCROW ACCOUNTS The motion was made by Ms. Piedici and seconded by Mr. Carlucci to approve the charges submitted by David Schley for July 2012, Steven Warner, Esq. for July 2012, and John Belardo, Esq. for June 2012. Roll call:

Aye: Harris, Piedici, Ross, Alper, Carlucci, Orr Motion carried

APPROVAL OF RESOLUTIONS RESOLUTION – Kovach, Robert and Palazzo-Kovach, Rosaly – Block 1409, Lot 5 –

Bulk Variances The motion was made by Ms. Piedici and seconded by Mr. Ross to approve the resolution as drafted. Roll call: Aye: Harris, Piedici, Ross, Alper, Orr

(Mr. Rhatican and Mr. Carlucci were ineligible to vote) Motion carried

RESOLUTION – Rivera, Carlos and Bautista, Ana - Block 2101, Lot 22 – Bulk Variance The motion was made by Ms. Alper and seconded by Ms. Piedici to approve the resolution as drafted. Roll call: Aye: Harris, Piedici, Ross, Alper, Orr (Mr. Rhatican and Mr. Carlucci were ineligible to vote.) Motion carried

RESOLUTION – Arnold, Richard and Linda – Block 7501, Lot 21 – Bulk Variance The motion was made by Ms. Piedici and seconded by Mr. Harris to approve the resolution as drafted. Roll call: Aye: Harris, Piedici, Ross, Alper, Orr

(Mr. Rhatican and Mr. Carlucci were ineligible to vote) Motion carried

COMPLETENESS & PUBLIC HEARING – LOTREAN, MARINEL & MARIE – Block 3901, Lot 49 – 26 Cooper Lane – Bulk Variance Marinel and Marie Lotrean, 26 Cooper Lane, and Mr. Schley were sworn in. Mr. Lotrean said he and his wife wanted to install a pool which would bring their total lot coverage to 30.1%. The issue of their existing lot coverage being at 25.9% was discussed. Mr. Schley opined that the circular portion of their driveway was installed without a permit.

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The Lotreans submitted as Exhibit A-1 a version of their variance plan which proposed removal of the loop portion of the driveway and a dry well system. They agreed to remove that portion of the driveway and install the dry well, resulting in lot coverage of approximately 24%. They agreed to relocate the pool equipment to comply with Comment #3 of Mr. Schley’s August 3, 2012 memo. Public hearing was opened for questions of the applicants and comments on the application. Hearing none, the public portion of this hearing on this application was closed. Board members noted that the existing lot coverage had been created by an earlier owner and that the proposed changes would reduce that percentage.

The motion was made by Ms. Alper and seconded by Ms. Piedici to deem the application complete and to direct the Board attorney to draft a memorializing resolution approving it subject to Comments #3 and 4 in Mr. Schley’s August 3 Memo and following Best Management Practices for pool water discharge as recommended in the June 18, 2012 Environmental Commission memo. Roll call: Aye: Harris, Piedici, Ross, Alper, Carlucci, Orr Motion carried

Mr. Rhatican joined the meeting.

COMPLETENESS REVIEW & PUBLIC HEARING – FRANCISCO-PAULO, SUSAN & PAULO, JIMMY M. – Block 8501, Lot 33 – 445 King George Road – Bulk Variance Susan Francisco-Paulo, 445 King George Road, and Mr. Schley were sworn in. Ms. Francisco-Paulo explained that she had a paver patio installed in 2010 in her rear yard without a permit because the contractor told her a permit was not needed for this type of pavers. She said Nancy Koederitz, Township Zoning Officer, informed her that this patio exceeded the allowable lot coverage for this lot and needed variance relief. Board members noted that the Environmental Commission memo of July 13, 2012 did not

support the increase in lot coverage created by the patio. Ms. Francisco-Paulo said she was willing to install an additional dry well. She said none of her neighbors objected to the patio. Public hearing was opened for questions of the applicant and comments on the application. Hearing none, the public portion of this hearing on this application was closed. Board members discussed the amount of lot coverage created by the patio and the impact of permitting the patio to remain.

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The motion was made by Mr. Rhatican and seconded by Ms. Piedici to deem the application complete and to direct the Board Attorney to draft a memorializing resolution denying the application Roll call: Aye: Harris, Piedici, Rhatican, Ross, Alper, Carlucci, Orr Motion carried

COMPLETENESS REVIEW & PUBLIC HEARING – TALLAKSEN, ROBERT – Block 5801, Lot 15 – 25 Lyons Place – Bulk Variance Robert Tallaksen, Bernardsville, NJ, Steven Parker, PE, PP, Parker Engineering, Somerville, NJ & Mr. Schley were sworn in. Mr. Parker said the applicant intended to

demolish the existing house and accessory structures and build a new house. Variance relief for minimum lot width was requested. Mr. Parker addressed the comments in Mr. Schley’s August 3, 2012 memo and he said the applicant would comply with all of them. There was discussion on whether storm water infiltration measures should be required. Mr. Parker proposed to install dry wells for any lot coverage over 5400 sq ft. Mr. Tallaksen said that he had talked to the neighbors and had received no negative feedback. Public hearing was opened for questions of Mr. Parker and Mr. Tallaksen, and comments on the application. Mr. Melvyn Cornin, 99 Lyons Road, was sworn in. He said his land adjoined this lot on the rear. He was in favor of the proposed new house. Hearing no further questions or comments, the public portion of this hearing on this application was closed. Mr. Carlucci left the meeting. Board members noted there was no way for the applicant to purchase land to address the lot width deficiency, the new house would be similar to other houses on Lyons Place in terms of

front yard setback, and the lot coverage on this lot will be reduced. The motion was made by Mr. Rhatican and seconded by Ms. Piedici to deem the application complete and to direct the Board Attorney to draft a memorializing resolution approving the application, subject to compliance with Comments in Mr. Schley’s August 3, 2012 memo. Roll call: Aye: Harris, Piedici, Rhatican, Ross, Alper, Orr Motion carried

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WHEREAS, the Board has determined that it is necessary in the public interest that pending litigation concerning the Board be discussed in executive session and has estimated that, as nearly as can now be determined, the results of the discussion can be disclosed to the public when appropriate, NOW THEREFORE, it is resolved that the public be excluded from the executive portion of the meeting, during which only the aforestated matter will be discussed. No formal action will be taken.

On motion by Mr. Rhatican and seconded by Mr. Ross, the Board adjourned the public hearing at 9:33 p.m. to go into Executive Session.

The closed session was adjourned at 9:40 p.m., the public hearing was re-opened and adjourned at 9:40 p.m., there being no further business to discuss.

Respectfully submitted,

Frances Florio Secretary to the Board

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ZONING BOARD OF ADJUSTMENT

TOWNSHIP OF BERNARDS

ROBERT KOVACH and ROSALY PALAZZO-KOVACH

Case No. ZB12-012

RESOLUTION

WHEREAS, ROBERT KOVACH and ROSALY PALAZZO-KOVACH (the

“Applicants”) have applied to the Zoning Board of Adjustment of the Township of Bernards (the

“Board”) for the following bulk variances in connection with the removal of the existing single-

family dwelling and construction of a new 2,064 square foot dwelling with attached two-car

garage, on property identified as Block 1409, Lot 5 on the Tax Map, more commonly known as

68 Conkling Street:

(1) A variance for a pre-existing lot area of 17,525 square feet, whereas the

minimum required lot area in an R-7 (1/2 acre) residential zone is 21,780 feet, pursuant to

Section 21-15.1.d.1 and Table 501 of the Land Development Ordinance;

(2) A variance for a pre-existing improvable lot area of approximately 1,020

square feet, whereas the minimum required improvable lot area in an R-7 (1/2 acre)

residential zone is 5,000 square feet, pursuant to Section 21-10.4(b) and Table 401-A of

the Land Development Ordinance;

(3) A variance for a pre-existing lot width of 75 feet, whereas the minimum

required lot width in an R-7 (1/2 acre) residential zone is 125 feet, pursuant to Section 21-

15.1.d.1 and Table 501 of the Land Development Ordinance;

(4) A variance for a front-yard setback from North Alward Avenue of 10.8 feet,

whereas the existing front-yard setback is 31.4 feet and whereas the minimum required

front-yard setback in an R-7 (1/2 acre) residential zone is 40 feet, pursuant to Section 21-

15.1(d)(1) and Table 501 of the Land Development Ordinance; and

(5) A variance for a side-yard setback (east side) of 10.1 feet, whereas the

existing side-yard setback is 16 feet and the minimum required side-yard setback in an R-

7 (1/2 acre) residential zone is 20 feet, pursuant to Section 21-15.1(d)(1) and Table 501 of

the Land Development Ordinance; and

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WHEREAS, a public hearing on notice was held on such application on July 12, 2012, at

which time interested citizens were afforded an opportunity to appear and be heard; and

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

Applicants and the reports from consultants and reviewing agencies, has made the following

factual findings and conclusions:

1. The Board reviewed the application and deemed it to be complete.

2. The subject lot is an approximately 17,525 square foot (0.4 acre) pre-existing

undersized (as to lot area, improvable lot area and lot width) lot fronting on Conkling Street (the

“Lot”). Prior to 2006, the Applicants’ Lot was 10,415 square feet in area and 50 feet wide. In

2006, the Township vacated and transferred to the Applicants a 25-foot wide portion of the North

Alward Avenue right-of-way adjoining the west side of the Lot. In 2009, the Township vacated

and transferred to the Applicants a 25-foot wide portion of the Seventh Street right-of-way

adjoining the rear of the Lot. As a result, the Lot is now 17,525 square feet in area and 75 feet

wide. In order to comply with a condition of the 2006 property transfer, the Applicants recorded

a deed restriction limiting coverage by all buildings on the Lot to 2,400 square feet.

3. The Lot is presently improved with a single-family dwelling with a deck, sheds,

and related driveway and walkways. The Applicants propose to remove the existing structure

and construct a 2,064 square foot, two-story dwelling with attached two-car garage.

4. The Applicants’ proposal is depicted on Variance Grading Plans prepared by

William G. Hollows, P.E., L.S., P.P., dated March 6, 2012, same consisting of 3 sheets. The

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Applicants’ proposal also is depicted on architectural plans prepared by Simplex Industries, Inc.,

dated February 1, 2012, same consisting of 3 sheets.

5. The requested variances for the minimum lot area, improveable lot area, lot width,

front-yard and side-yard setback deviations, all fall under the criteria of N.J.S.A. 40:55D-70(c).

6. The Township Environmental Commission, by Memorandum dated May 18,

2012, noted no environmental concerns at that time.

7. The Applicants submitted a Wetlands Investigation Report, dated April 9, 2012,

by David C. Krueger, President of Environmental Technology, Inc., concluding that there are no

areas within the proposed area of disturbance for the proposed improvements which are classified

as freshwater wetlands or transition areas, and no portion of the site lies within a riparian zone

pursuant to the Flood Hazard Area Control Act Rules (N.J.A.C. 7:13).

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8. David Schley, A.I.C.P./P.P., the Township/Board Planner, was duly sworn

according to law.

9. Robert Kovach and Rosaly Palazzo-Kovach, the Applicants, were duly sworn

according to law. Ms. Palazzo-Kovach testified that the subject dwelling is a small, two-

bedroom home, with no garage, which she, her husband and her two children have outgrown.

10. William G. Hollows, P.E., L.S., P.P., was duly sworn according to law, provided

his credentials and was accepted by the Board as an expert in the fields of engineering and

planning. Mr. Hollows introduced into evidence, as Exhibit A-1, a colorized version of Sheet 1

of the Plans submitted with the application materials, showing the existing conditions and

depicting the portions of North Alward Avenue and Seventh Street which were vacated and

became part of the subject property. He then introduced into evidence, as Exhibit A-2, a

colorized version of Sheet 2 of the Plans submitted with the application materials, showing the

proposed conditions and depicting the portions of North Alward Avenue and Seventh Street

which were vacated and became part of the subject property.

11. Mr. Hollows explained that the existing dwelling is small and narrow and there

are two free-standing sheds which would be relocated in accordance with the comments of the

Township Planner in his July 5, 2012 memorandum. He explained that the Applicants proposed

to remove the existing dwelling and construct a new two-story, “colonial style” dwelling, subject

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to the 2,400 square foot building coverage limitation in the deed restriction referenced in

Comment #1 in the Township Planner’s Memorandum.

12. Mr. Hollows explained the five required variances, 3 of which constitute pre-

existing conditions (the minimum lot area, minimum improvable lot area, and minimum lot

width), and the other two of which are new conditions (the front-yard setback to North Alward

Avenue, which is, in essence, a “paper street”, and the minimum side-yard setback on the east

side, which was compliant prior to the 2006 ordinance change from a 10 foot side-yard setback to

a 20-foot side-yard setback).

13. Mr. Hollows testified that, notwithstanding the 10-foot side-yard setback to the

east, the dwelling on Lot 3 to the east is situated such that the nearest portion to the east side yard

property line is the garage and, thus, not living space.

14. Certain of the Board Members, the Applicants, and Mr. Hollows all addressed the

fact that, while the dwellings on Lot 28 and Lot 2.01 have approximately 40 foot or greater front-

yard setbacks, the nearest dwelling, which is on Lot 3, has an approximately 23-foot front-yard

setback. As such, the Board Members suggested, and the Applicants stipulated, as a condition of

approval, subject to the Board granting the requested bulk variance relief, to locating the

dwelling such that the front-yard setback shall be approximately 30 feet, rather than the proposed

compliant 40.5 feet. Mrs. Palazzo-Kovach noted that, by locating the new dwelling

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approximately 10 feet forward, the Applicants would be able to save the cherry tree in their

backyard.

15. Mrs. Palazzo-Kovach testified that she discussed the proposal with her neighbors,

including the owners of neighboring Lot 3 to the east, and that all of them were in favor of the

application. She further testified that she took the photographs submitted with the application

materials in or around March of 2012 and that they accurately depict the lot and dwelling as they

presently exist.

16. The Applicants stipulated, as conditions of approval, to the following items:

(a) The porch shall remain open; i.e., covered with a roof but open on the sides

except for columns/open railings as proposed;

(b) The Applicants shall provide the requisite soil erosion and sediment control

measures and stormwater infiltration measures, in accordance with Section 21-

42.1.f.2 for the Land Development Ordinance, and provide perc test results in

support thereof, subject to the further review and approval of the Township

Engineering Department prior to the issuance of a building permit;

(c) The Applicants shall make the site available to the Basking Ridge Fire

Company in the event they wish to run drills on the site, with notice given to the

Fire Company at least 30 days prior to the demolition date of the existing

dwelling;

(d) The Applicants shall grant to the Township a conservation easement

encompassing all wetlands/wetlands transition area at the property. The

easement shall be prepared by the Township Attorney, executed by the

Applicants and recorded with the Somerset County Clerk, and the Township

standard markers installed or bonded for, all prior to the issuance of a building

permit;

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(e) The Applicants shall place all utility services underground;

(f) The two proposed trees shall be planted at a minimum size of 3 to 4 inches

caliper and the species must be chosen from those recommended by the Shade

Tree Commission;

(g) The Applicants shall obtain an engineering permit prior to any work within the

Township right-of-way;

(h) The Applicants shall pay the requisite development fees in accordance with

Section 21-86 of the Land Development Ordinance;

(i) The zoning schedule on the plans shall be revised to identify the existing side-

yard setback as measured to the deck, and to identify the proposed improveable

lot area excluding the wetlands transition area; and

(j) The two proposed relocated sheds shall be located at least 10.8 feet from the

westerly property line (so as not to encroach upon the westerly front-yard), and

must be in compliance with NJDEP regulations.

17. After reviewing the evidence submitted, the Board, by a vote of 7 to 0, found that

the Applicants have satisfied their burden of proving an entitlement to the requested variance

relief for the pre-existing lot area, improvable lot area and lot width deviations under N.J.S.A.

40:55D-70(c)(1), and for the front- and side-yard setback deviations under N.J.S.A. 40:55D-

70(c)(2).

18. First, as to the “positive criteria” for a “(c)(1)” or “hardship” variance, the Board

finds that the Applicants have satisfied their burden of demonstrating that strict application of the

zoning regulations will result in peculiar and exceptional difficulties to, or exceptional and undue

hardship upon, them as the owners of the subject property. The Board recognizes that the

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Applicants’ Lot contains only 1,020 square feet of improvable area, mainly because it is a

narrow, undersized corner lot with a wetlands transition area on the rear half of the Lot. Prior to

2006, before the Applicants acquired a portion of the street right-of-way, the improvable lot area

was 0 square feet. As such, the minimum lot area, minimum improvable lot area and lot width

deviations were pre-existing conditions that were not self-created and have become more

conforming as a result of, inter alia, the efforts of the Applicants.

19. The Board finds that the Applicants have established that no additional land is

available for purchase which would bring the lot width, lot area and/or improvable lot area into,

or significantly closer to, conformity with the district standards of the Land Development

Ordinance. The evidence revealed that the adjoining lot to the east side of the Applicants’ Lot

(Lot 3) is nonconforming in width (100’ wide) and slightly oversized in area (23,545 square

feet). That lot contains no available land that could be acquired by the Applicants in order to

create a conforming (or significantly more conforming) area, improvable lot area, or width for

the Applicants’ lot. The Applicants’ Lot abuts Township right-of-way to the north and west, and

vacant Township land (Lot 34.01) to the south/rear.

22. Second, as to the “positive criteria” for a “(c) (2)” or “flexible c” variance, the

Board finds that the proposed development will serve multiple purposes of zoning, as set forth in

the Municipal Land Use Law, including the provision of a desirable visual environment and the

enhancement of the visual compatibility of the property with adjoining properties. As to the side-

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yard setbacks, the evidence revealed that the Applicants’ Lot abuts only one improved street (i.e.

Conkling Street), however, it is technically a corner lot, requiring 40 foot front-yard setbacks

along both Conkling Street and North Alward Avenue.

23. As to Conkling Street, while the Applicants proposed a conforming 40.5 foot

front-yard along this improved, “primary” street frontage, eliminating entirely the pre-existing

nonconforming 17.9 foot setback of the existing dwelling, the Board finds that a 30 foot front-

yard setback would be more beneficial since it would be more consistent with the streetscape

given the 23 foot front-yard setback on adjacent Lot 3 to the East, and still would bring the

existing front-yard setback deviation significantly closer to conformity.

24. As to North Alward Avenue, the Board finds that a variance is warranted for the

proposed 10.8 foot front-yard along this unimproved, “secondary” street frontage. The Board

recognizes that, while it is a street right-of-way requiring a 40-foot front-yard setback, this

portion of North Alward Avenue is actually a 25 foot wide remnant of a “paper street” vacated by

the Township. It is wooded and provides unimproved access to the vacant Township land

(woods/wetlands) located to the rear/south of the Applicants’ property. Prior to 2006, before the

Applicants acquired a portion of the right-of-way, the front-yard setback along North Alward

Avenue was 6.4 feet. The proposed setback is 10.8 feet as measured to the open front porch, and

16.8 feet as measured to the wall of the dwelling.

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25. Additionally, the Board finds that the conditions stipulated to by the Applicants,

set forth below, should significantly alleviate even the relatively modest detriments anticipated as

a result of the proposed development.

26. Finally, the Board finds that the Applicants have satisfied the negative criteria for

variance relief; that is, they have demonstrated that 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.

WHEREAS, the Board took action on this application at its meeting on July 12, 2012,

and this Resolution constitutes a Resolution of Memorialization of the action taken in accordance

with N.J.S.A. 40:55D-l0(g);

NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of the

Township of Bernards, on the 12th

day of July, 2012, that the application of Robert Kovach and

Rosaly Palazzo-Kovach, for variance relief as aforesaid, be and is hereby granted, subject to the

following conditions:

(1) The Applicants shall post sufficient funds with the Township to satisfy any

deficiency in the Applicants’ escrow account;

(2) The Applicants shall provide soil erosion and sediment control measures and

stormwater infiltration measures, including perc test results in support thereof, in

accordance with Section 21-42.1.f.2 of the Land Development Ordinance, subject

to review and approval of the Township Engineering Department prior to the

issuance of a building permit;

(3) The Applicants shall place all utility services underground;

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(4) The Applicants shall pay the requisite development fees in accordance with

Section 21-86 of the Land Development Ordinance;

(5) The Applicants shall make the site available to the Basking Ridge Fire Company

in the event that same shall desire to run drills on the site, with notice given to the

Fire Company at least 30 days prior to the demolition date of the existing

dwelling;

(6) The Applicants shall grant to the Township a conservation easement,

encompassing all wetlands/wetland transition area at the property. The easement

shall be prepared by the Township Attorney, executed by the Applicants and

recorded with the Somerset County Clerk, and the Township standard markers

installed or bonded for, all prior to the issuance of a building permit;

(7) The porch shall remain open; i.e., covered with a roof but open on the sides except

for columns/open railings as proposed;

(8) The two proposed trees shall be planted at a minimum size of 3 to 4 inches caliper

and the species must be chosen from those recommended by the Shade Tree

Commission;

(9) The Applicants shall obtain an engineering permit prior to any work within the

Township right-of-way;

(10) The zoning schedule on the plans shall be revised to identify the existing side-

yard setback as measured to the deck, and to identify the proposed improveable lot

area excluding the wetlands transition area;

(11) The two proposed relocated sheds shall be located at least 10.8 feet from the

westerly property line (so as not to encroach upon the westerly front-yard), and

must be in compliance with NJDEP regulations;

(12) The front-yard setback of the new dwelling shall be approximately 30 feet;

(13) The aforementioned approval shall be subject to all requirements, conditions,

restrictions and limitations set forth in all prior governmental approvals, to the

extent same are not inconsistent with the terms and conditions set forth herein;

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(14) The aforementioned approval also shall be subject to all State, County and

Township statutes, ordinances, rules and regulations affecting development in the

Township, County and State; and

(15) Pursuant to Section 21-5.10 of the Land Development Ordinance, the variance

relief granted herein shall expire unless such construction or alteration permitted

by the variance relief has actually commenced within one year of the date of this

Resolution.

ROLL CALL VOTE:

Those in Favor: Harris, Piedici, Plaza, Ross, Vogt, Alper, Orr

Those Opposed: none

The foregoing is a true copy of a Resolution adopted by the Zoning Board of Adjustment

of the Township of Bernards at its meeting on August 8, 2012 as copied from the Minutes of said

meeting.

____________________________________

FRANCES FLORIO, Secretary

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF BERNARDS,

COUNTY OF SOMERSET,

STATE OF NEW JERSEY

Dated: August 8, 2012

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ZONING BOARD OF ADJUSTMENT

TOWNSHIP OF BERNARDS

CARLOS RIVERA and ANA BAUTISTA

Case No. ZB12-016

RESOLUTION

WHEREAS, CARLOS RIVERA and ANA BAUTISTA (the “Applicants”) have applied

to the Zoning Board of Adjustment of the Township of Bernards (the “Board”) for the following

bulk variance in connection with the construction of an approximately 7 foot wide, 3 foot deep

and 11.5 foot high roof/portico over the existing uncovered front stoop of the dwelling on

property identified as Block 2101, Lot 22 on the Tax Map, more commonly known as 105

Berkeley Circle:

A variance for a proposed front-yard setback of 36 feet to the porch, whereas the

existing front-yard setback is 35 feet and whereas the minimum required front-

yard setback in an RC-4 residential cluster zone is 50 feet, pursuant to Section 21-

15.1(d)(3) and Table 503 of the Land Development Ordinance; and

WHEREAS, a public hearing on notice was held on such application on July 12, 2012, at

which time interested citizens were afforded an opportunity to appear and be heard; and

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

Applicants and the reports from consultants and reviewing agencies, has made the following

factual findings and conclusions:

1. The Board has reviewed the application and deemed it to be complete.

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2. The subject property is an approximately 0.84 acre lot fronting on Berkeley

Circle. The existing dwelling was constructed in 1977, when the minimum front-yard setback

requirement was 30 feet. The existing, nonconforming front-yard setback is 35 feet as measured

to the existing stoop (39.8 feet as measured to the front wall of the dwelling). The proposed

portico provides a 36-foot setback.

3. The Applicants’ property is depicted on a Survey, prepared by Rodolfo Pierri,

P.L.S., of Three Sixty Surveying, Inc. dated August 7, 2008. The Applicants submitted a

drawing of the proposed portico prepared by Carlos Rivera, one of the Applicants, dated March

30, 2012, consisting of one sheet.

4. The property is in an RC-4 residential cluster zone. The requested variance for the

front-yard setback is governed by N.J.S.A. 40:55D-70(c).

5. The Environmental Commission, by Memorandum dated June 18, 2012, noted

that it had no environmental concerns at that time.

6. David Schley, AICP/PP, the Township/Board Planner, was duly sworn according

to law.

7. Carlos Rivera and Ana Bautista, the Applicants, were duly sworn according to

law. Mr. Rivera testified that the Applicants’ reasons for constructing the proposed portico are

two-fold; they believe the portico will be aesthetically pleasing while also providing a cover

above the front door/entranceway of the home to protect same from rain and other elements.

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8. Ms. Bautista testified that she took the photographs that were submitted with the

application materials in or about June 2012 and that they accurately depict the present condition

of the subject dwelling and views of neighboring dwellings.

9. Mr. Schley, the Board Planner, explained that the proposed portico satisfies all of

the requirements for exemption from the front-yard setback requirement under Section 21-18B,

except for the fact that it protrudes more than 6 feet into the required front-yard.

10. Ms. Bautista testified that she communicated with her neighbors and all of them

indicated that they were in support of the application.

11. The Applicants stipulated, as a condition of approval, that the proposed portico

will remain open, that is, covered with a roof but open on the sides except for columns/open

railings, as proposed.

12. No member of the public commented on, or objected to, the development

application.

13. After reviewing the evidence submitted, the Board, by a vote of 7 to 0, finds that

the Applicants have satisfied their burden of proving an entitlement to the requested variance

relief under N.J.S.A. 40:55D-70(c)(2).

14. With respect to the positive criteria for a “c(2)” or “flexible c” variance, the Board

finds that the Applicants have satisfied their burden of demonstrating that the purposes of the

Municipal Land Use Law will be advanced by the requested deviations from the zoning

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requirements and that the benefits to be derived therefrom will substantially outweigh any

detriments associated therewith. The proposed development will provide a desirable visual

environment, enhance the visual compatibility of the property with adjoining properties and

otherwise promote the general welfare. The Board recognizes that, pursuant to Section 21-18B

of the Land Development Ordinance, an open front porch added to an existing dwelling is

exempt from the front-yard setback requirement provided that it does not exceed a width of 10

feet, depth of 8 feet, or floor-to-ceiling height of 10 feet, and provided that it protrudes no more

than 6 feet into the required front yard, and that the proposed portico satisfies all of the

requirements for exemption with the exception that it protrudes more than 6 feet into the required

front yard.

15. The Board further finds that the Applicants have satisfied the negative criteria.

The Applicants have demonstrated that 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. The Board finds that the proposal is consistent with the

character of the neighborhood. The Board also notes that no member of the public objected to

the application and the Applicants testified that all of the surrounding property owners were in

favor of it.

WHEREAS, the Board took action on this application at its meeting on July 12, 2012,

and this Resolution constitutes a Resolution of Memorialization of the action taken in accordance

22

with N.J.S.A. 40:55D-l0(g);

NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of the

Township of Bernards, on the 12th

day of July, 2012, that the variance application of Carlos

Rivera and Ana Bautista, for variance relief, as aforesaid, be and is hereby granted, subject to the

following conditions:

(1) The Applicants shall post sufficient funds with the Township to satisfy any

deficiency in the Applicants’ escrow account;

(2) The Applicants shall maintain the front portico as an open porch, that is covered

with a roof but open on the sides except for columns/open railings, as proposed;

(3) The aforementioned approval shall be subject to all requirements, conditions,

restrictions and limitations set forth in all prior governmental approvals, to the

extent same are not inconsistent with the terms and conditions set forth herein;

(4) The aforementioned approval also shall be subject to all State, County and

Township statutes, ordinances, rules and regulations affecting development in the

Township, County and State; and

(5) Pursuant to Section 21-5.10 of the Land Development Ordinance, the variance

granted herein shall expire unless such construction or alteration permitted by the

variance has actually commenced within one year of the date of this Resolution.

ROLL CALL VOTE:

Those in Favor: Harris, Piedici, Plaza, Ross, Vogt, Alper, Orr

Those Opposed: none

23

The foregoing is a true copy of a Resolution adopted by the Zoning Board of Adjustment of the

Township of Bernards at its meeting on August 8, 2012 as copied from the Minutes of said

meeting.

___________________________________

FRANCES FLORIO, Secretary

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF BERNARDS,

COUNTY OF SOMERSET,

STATE OF NEW JERSEY

Dated: August 8, 2012

24

ZONING BOARD OF ADJUSTMENT

TOWNSHIP OF BERNARDS

RICHARD and LINDA ARNOLD

Case No. ZB12-019

RESOLUTION

WHEREAS, RICHARD and LINDA ARNOLD (the “Applicants”) have applied to the

Zoning Board of Adjustment of the Township of Bernards (the “Board”) for the following bulk

variance in connection with a one-story, bedroom/bathroom addition to the west side of the

existing dwelling on property identified as Block 7501, Lot 21 on the Official Tax Map, more

commonly known as 75 Church Street:

A variance for a proposed front-yard setback of 64 feet to the proposed addition,

whereas the existing front-yard setback is 43 feet, and whereas the minimum

required front-yard setback in an R-4 (1 acre) residential zone is 75 feet, pursuant

to Section 21-15.1(d)(1) and Table 501 of the Land Development Ordinance; and

WHEREAS, a public hearing on notice was held on such application on July 12, 2012, at

which time interested citizens were afforded an opportunity to appear and be heard; and

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

Applicants and the reports from consultants and reviewing agencies, has made the following

factual findings and conclusions;

1. The Board has reviewed the application and deemed it to be complete.

25 - 8/08/12 – BOA

2. The Applicants’ lot is slightly undersized (190-foot vs. 200-foot width),

and the dwelling thereon is more than 100 years old and has a nonconforming 43-foot (vs.

75-foot) front-yard setback.

3. The Applicants propose to construct a one-story, 355 square foot

bedroom/bathroom addition to the west side of the dwelling.

4. The Applicants’ proposal is depicted on architectural drawings prepared

by Douglass Asral, A.I.A., dated June 14, 2012, consisting of 2 sheets. The Applicants

also submitted a portion of a Survey prepared by James W. Halsey, dated September 15,

1993, with the proposed addition reflected thereon. By memorandum dated July 13, 2012,

the Environmental Commission noted that it had no environmental concerns at that time.

5. The property is in an R-4 (1 acre) residential zone. The requested variance

for the front-yard setback falls under the criteria of N.J.S.A. 40:55D-70(c).

6. David Schley, A.I.C.P./P.P., the Township/Board Planner, was duly sworn

according to law.

7. Linda Arnold, one of the Applicants, was duly sworn according to law.

Mrs. Arnold testified that she and her husband have lived at the subject dwelling for more

than 40 years and very much enjoy living in the Liberty Corner Historic District and

would very much like to stay there. However, her husband recently has become ill and

they need a master bedroom/bathroom on the first floor to accommodate his needs. Mrs.

Arnold explained that the existing dwelling is a 3 bedroom farmhouse and that the

proposed bedroom/bathroom addition could serve future owners as a master suite, guest

26 - 8/08/12 – BOA

suite or other use. She further testified that, in her opinion, the addition would be

consistent with both the existing dwelling and the streetscape.

8. Mrs. Arnold stipulated, as a condition of approval, that the color, style and

materials utilized for the proposed addition would be substantially similar to the

materials, styles and colors in the existing dwelling.

9. Mrs. Arnold testified that she discussed the proposal with her surrounding

neighbors and that all of them were in favor of the application. She further testified that

she took the photographs recently and that they accurately depict the existing dwelling

and streetscape, and that her architect, Mr. Astral, spliced together the photographs and

depicted the proposed addition to the home thereon.

10. Douglas Astral, A.I.A., 241 Cedar Knolls Road, Cedar Knolls, New

Jersey, was duly sworn according to law, provided his qualifications and credentials, and

was accepted by the Board as an expert in the field of architecture. Mr. Astral stipulated,

on behalf of the Applicants, that he would revise the plans pursuant to Comment #3 on

the July 5, 2012 Memorandum of the Township Planner. He and the Township Planner

then confirmed that Comment #4, requesting the submission of a copy of the 1993 Survey

referenced on the plan, had already been satisfied.

11. Mr. Astral opined that the proposed addition would complement the

existing dwelling and not negatively impact on the Historic District. He explained that

the Applicants were looking to make the addition a natural extension of the existing

dwelling, and he opined that if they were to have complied with the 75-foot setback for

27 - 8/08/12 – BOA

the proposed addition it would have been out of character with the surrounding

neighborhood and visually less appealing.

12. Mrs. Arnold testified that she spoke with certain members of the Historical

Society of the Somerset Hills and that they reviewed the plans and had no objection to the

application.

13. In response to comments by Board Members, Mr. Astral testified that if he

were to revise the plans so as to have a gable roof on the addition facing the street, in an

effort to mirror the existing dwelling, same would be less desirable from an architectural

and visual standpoint and, in his words, would look “forced”.

14. No member of the public commented on, or objected to, the development

application.

15. After reviewing the evidence submitted, the Board, by a vote of 7 to 0,

finds that the Applicants have satisfied their burden of proving an entitlement to the

requested variance relief under N.J.S.A. 40:55D-70(c)(2).

16. First, with respect to the positive criteria for a “c(2)” or “flexible c”

variance, the Board finds that the Applicants have satisfied their burden of demonstrating

that the purposes of the Municipal Land Use Law will be advanced by the requested

deviations from the zoning requirements and that the benefits to be derived therefrom will

substantially outweigh any detriments associated therewith. The proposed development

will provide a desirable visual environment, enhance the visual compatibility of the

property with adjoining properties and otherwise promote the general welfare. By contrast

to these significant benefits, the Board finds that the detriments associated with the

28 - 8/08/12 – BOA

proposed development will be minimal (if any). The Board notes that the proposed

addition will encroach more than 20 feet less than the existing dwelling already

encroaches into the front yard.

17. Second, the Board finds that the Applicants have satisfied the negative

criteria; that is, they have demonstrated that 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. The Board recognizes, in this regard, that

the existing dwellings on adjoining Lot 20 to the east side and adjoining Lot 22 to the

west side have front-yard setbacks of approximately 44 feet to 46 feet, and other nearby

buildings on the same (north) side of Church Street, including Liberty Corner School,

have similar nonconforming front-yard setbacks.

WHEREAS, the Board took action on this application at its meeting on July 12,

2012, and this Resolution constitutes a Resolution of Memorialization of the action taken

in accordance with N.J.S.A. 40:55D-l0(g);

NOW, THEREFORE, BE IT RESOLVED by the Zoning Board of Adjustment of

the Township of Bernards, on the 12th

day of July, 2012, that the application of Richard

and Linda Arnold, for variance relief as aforesaid, be and is hereby granted, subject to the

following conditions:

(1) The Applicants shall post sufficient funds with the Township to satisfy any

deficiency in the Applicants’ escrow account;

(2) The exterior of the proposed addition shall be substantially similar in color

and materials to the exterior of the existing dwelling;

29 - 8/08/12 – BOA

(3) The zoning schedule shown on the plans shall be revised to identify the

existing front-yard setback as measured to the porch, and to indicate that

the existing lot width is nonconforming;

(4) The aforementioned approval shall be subject to all requirements,

conditions, restrictions and limitations set forth in all prior governmental

approvals, to the extent same are not inconsistent with the terms and

conditions set forth herein;

(5) The aforementioned approval also shall be subject to all State, County and

Township statutes, ordinances, rules and regulations affecting

development in the Township, County and State; and

(6) Pursuant to Section 21-5.10 of the Land Development Ordinance, the

variance relief

granted herein shall expire unless such construction or alteration permitted

by the

variance has actually commenced within one year of the date of this

Resolution.

ROLL CALL VOTE:

Those in Favor: Harris, Piedici, Plaza, Ross, Vogt, Alper, Orr

Those Opposed: none

The foregoing is a true copy of a Resolution adopted by the Zoning Board of Adjustment

of the Township of Bernards at its meeting on August 8, 2012 as copied from the Minutes

of said meeting.

______________________________

_____

FRANCES FLORIO, Secretary

ZONING BOARD OF

ADJUSTMENT

30 - 8/08/12 – BOA

OF THE TOWNSHIP OF

BERNARDS, COUNTY OF

SOMERSET,

STATE OF NEW JERSEY

Dated: August 8, 2012